The Republican campaign to destroy the filibuster
Byron York thinks he's got himself a gotcha in his argument that Bill Frist didn't hate the filibuster so much as he hated the filibuster when applied to judicial nominees. Since my article only references Frist's effort to "shut the chamber down over the Democratic habit of filibustering George W. Bush's judicial nominees," better minds than mine will have to locate the source of York's triumphalism.
At any rate, Republicans spent the early Aughts doing their level best to reduce the power of the filibuster. Frist's effort to destroy its applicability to judicial nominees was one example. Frist felt it an expansion of the filibuster beyond its traditional boundaries, a critique that largely applies to the whole practice these days (interestingly, some have argued that it would make more sense for the filibuster to apply only to judicial nominees, as they're granted lifetime appointments that the Senate cannot revisit without cause). Judicial nominees are particularly close to the Republican base's heart, so an effort was made to free the Senate's hand on that issue.
Some -- though certainly not all -- liberals sided with Frist at the time, believing that a successful attack against any use of the filibuster would lead to the filibuster's total destruction. Nathan Newman and Matt Yglesias were two proponents of this argument. Given that Frist's case against the judicial filibuster was that it's "nothing less than a formula for tyranny by the minority," it was pretty clear his argument applied to all filibusters.
But that wasn't the only strategy the Republican majority pursued against the filibuster. They also began an unprecedented expansion of the reconciliation process, which is protected from the filibuster. Traditionally, reconciliation had been used for deficit-reducing legislation directly related to bringing the budget into balance. The GOP used it not only for deficit-busting tax cuts, but to give President Bush "fast track" authority to negotiate trade bills and to drill in the Arctic National Wildlife Refuge. "We are using rules of the Senate here," said Sen. Judd Gregg, then-chairman of the Budget Committee. "Is there something wrong with majority rules? I don't think so."
Republicans not only loathed the filibuster but pursued a fairly disciplined strategy for assaulting it. On the one hand, they enlarged the scope of the reconciliation process in order to protect more legislation from the 60-vote requirement. On the other hand, they directly attacked parts of the filibuster that they thought they'd be able to overturn, like its application to judicial nominations.
Surveying all this, you can sit around playing whack-a-mole with hypocrites. This year, for instance, Gregg compared the reconciliation process to "running over the minority, putting them in cement, and throwing them in the Chicago River." But legislating is properly understood as a question of outcomes, not consistency or procedural principles. Parties appreciate minority protections when they lack power, and loathe them when they gain it. The question is whether they're right when they're out of power or when they're in power.
I come down firmly with the majority on this question. And not this Democratic majority. Whoever happens to be in the majority. Over the past two decades, the minority has learned that they profit in the next election when the majority is judged a failure. They also have learned they have the power to make the majority into a failure by using the minority protections of the Senate to obstruct the majority's agenda. That is to say, the minority has both the incentive and the power to make the majority fail. That's all well and good for interesting elections, but it means that no one can successfully govern the country.
That's why my argument is not that we should remove the filibuster this year. I'd like to see it happen, of course, but it's unrealistic. Somewhat more realistic is for members of both parties to act like members of the legislative branch rather than members of a political party and pass a law removing the filibuster eight years into the future, as that way, no one knows which party will initially benefit. If members of Congress cannot be made to prize the functioning of their institution over the next election, perhaps they can be made to prize the future functioning of the institution over someone else's future election. If not, we're in pretty bad shape.
Photo credit: Melina Mara/The Washington Post
December 28, 2009; 2:45 PM ET
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