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The Republican campaign to destroy the filibuster

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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

By Ezra Klein  |  December 28, 2009; 2:45 PM ET
Categories:  Senate  
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Comments

As usual, Ezra is exactly wrong. The filibuster is what allows for good governing. The filibuster requires moderation. Governing can happen, but the parties have to work together to get anything done. That is the recipe for stability in government.

I suggest that people look to the banana republics around the globe which have sudden and chaotic transfers of power and then tell me that process works.

The fact is that both parties have done a very bad job working with the minority party over the last decade. That is not the political processes fault, that is the fault of the political parties and the political hacks like Ezra Klein who push an agenda from the extremes of both parties.

Posted by: lancediverson | December 28, 2009 3:06 PM | Report abuse

The Byron York post that Ezra links to is useful, in that he makes a distinction that the Senate does not!

My sense is if it were ONLY about bottling up major pieces of legislation that there would be little outcry to change these anti-democratic Senate rules. But in reality, we no longer have a majority rule Senate, but a supermajority for everything, from being able to start debates, having clerks read bills, getting votes on legislation where there's almost no opposition like funding the military, confirmation of administration officials, and federal judges. The Senate is absurdly broken, and its so because the minority is able to make it so, and will benefit from it.

Everyone has a right to his own opinion, but not his own facts. Its a simple fact Ezra and others have described ad infinitum that the use of the filibuster has risen meteorically in recent years, as Republicans have managed to successfully use it to thwart the will of the majority.

Posted by: zeppelin003 | December 28, 2009 3:38 PM | Report abuse

EK: Even if this Senate were willing to change the rules, effective some date in the future when it is unknown which party would benefit ... couldn't that rule be repealed/over-turned by the new senators eight years from now? In essence, preventing the change from ever happening?

Posted by: onewing1 | December 28, 2009 3:46 PM | Report abuse

In theory, it could. But why would the future majority want to do that? After all, they would benefit from the new rule.

Posted by: Ezra Klein | December 28, 2009 4:08 PM | Report abuse

"I suggest that people look to the banana republics around the globe which have sudden and chaotic transfers of power and then tell me that process works."

That's a silly strawman, followed by a facile bit of elementary school civics.

I suggest that lancediverson looks to the parliamentary systems around the world that have regular peaceful and wholesale transfers of power and then tells us that process does not work.

If the Labour government in the UK loses to the Conservatives in the next general election, or the Labor government in Australia loses to the Liberals, the opposition will have very little say in the legislation that follows, and the voters will be able to judge the governing party on its own record.

Or you can look to Germany, where there's a formal coalition which makes up the majority: the governing parties have total ownership of the legislative and executive record, and can be judged on it when the next election takes place.

Posted by: pseudonymousinnc | December 28, 2009 4:25 PM | Report abuse

The filibuster is not unique to the US Senate in Congressional history. The House had it too and when it stopped that body from functioning, they abandoned unlimited debate and adopted the Reed Rules (1889..I think) which basically say, it's a democracy if the tyranny of the majority is bad, the tyranny of the minority is far worse.

The House should start attacking the Senate because an internal rule of the Senate is weakening what should be an equal branch. There is no junior status and in fact the House is mentioned first in the Constitution. The idea that the junior Senator from Connecticut could dictate to the Speaker of the House would have made the Founding Fathers puke.

Posted by: jamusco | December 28, 2009 4:35 PM | Report abuse

"The idea that the junior Senator from Connecticut could dictate to the Speaker of the House would have made the Founding Fathers puke."

Brilliantly said. And I dont know that riling up the House about its diminished role because of this Senate power grab isnt exactly the way to bring pressure to this whole situation.

Posted by: zeppelin003 | December 28, 2009 5:49 PM | Report abuse

Eight years in the future is very weak tea. And it is no more realistic that today's GOP minority (and blue-dog Dem. faction) will pass a law making major changes in the filibuster eight years hence (and ending the 'hold' practice, btw), than they would pass it effective with the start of the next Congressional session in 2011, or anytime in 2010.

It just SOUNDS realistic, but that's the problem. We need to DO things now, not someday in the hoary future when peace and tranquility magically prevail. The GOP thinks obstructionism is good for their brand, and they have no 'realistic' probability of taking control of the Senate, for demographic reasons, either in 2010, or anytime in the interval until they stop being the party of NO, with the exceptions of tax cuts and wars anytime, anyplace, by any means.

Posted by: JimPortlandOR | December 28, 2009 5:59 PM | Report abuse

lancediversion: "The filibuster is what allows for good governing. The filibuster requires moderation. Governing can happen, but the parties have to work together to get anything done. That is the recipe for stability in government."

That assumes that people want to work together to get anything done. As the present situation shows, and Ezra points out, the political calculus often requires otherwise.

When one party succeeds by causing the other party to fail, then the minority has an incentive to not get anything done and so not to work with the majority regardless of the merits of the legislation.

That's not a recipe for stability; that's a recipe for sustained gridlock.

There are already many checks in the system for moderation: separate majorities in two different legislative chambers, plus the approval of a chief executive elected by a completely different process. We don't need another one. At some point, the quest for "moderation" morphs into the ability of a recalcitrant minority to block just about anything. And that's not how democracy, even a regulated one, should work.

Posted by: dasimon | December 28, 2009 8:24 PM | Report abuse

JimPortlandOR: "Eight years in the future is very weak tea. And it is no more realistic that today's GOP minority (and blue-dog Dem. faction) will pass a law making major changes in the filibuster eight years hence (and ending the 'hold' practice, btw), than they would pass it effective with the start of the next Congressional session in 2011, or anytime in 2010."

It is more probable because it takes immediate self-interest out of the equation. The minority party will always have an interest in blocking the immediate end of the filibuster because it would take away the only power they have left. But if the consequences are further in the future when they might be the majority party, then they have an interest in the potential of not being blocked without losing their immediate power. See this article from The New Republic: http://www.tnr.com/article/metro-policy/veil-thine-eyes

"We need to DO things now, not someday in the hoary future when peace and tranquility magically prevail."

I agree. But if can't get rid of the filibuster now, and the choice is getting rid of it 8 years from now or not getting rid of it at all, I'll take the 8 year plan.

Posted by: dasimon | December 28, 2009 8:38 PM | Report abuse

God forbid you abolished the damn thing now and paid attention to the immediate self-interest of the voters, voters who elected a huge majority but can't get the majority to actually do anything.

Waiting 8 years is all about soothing DC elite opinion and if that is a prime consideration then there will never be momentum to look at ending the filibuster in the first place. It will be Tom Harkin and 20 votes and pffft.

It takes Harry Reid telling Obama in advance that he's overruling the chair and Obama backing him up to get 50+1 votes, otherwise you can forget filibuster reform.

It's like the fire protecting the Forbidden Zone in Planet of the Apes. If you think it's going to burn you, it's an effective barrier. If you ride through it, you see it's a mirage. People like majority rule in a democracy. Go figure. There will be no blowback from ending the idiocy of the Senate rules.

Posted by: jamusco | December 28, 2009 9:13 PM | Report abuse

As others have noted, the power to do good is the power to do ill, and power tends to corrupt. This has been on display lately.

Where one party dominates the executive,legislative, and judical branches, it is good that there are actions requiring a super-majority vote.

Posted by: dwcooper | December 28, 2009 9:57 PM | Report abuse

1.) Either party, when in the minority, will use the filibuster to block legislation or confirmations that they don't like. In an increasingly partisan Washington, it will be used..(surprise)...more often.
2.) When the minority thus employs the fiilibuster, or threatens to, the party in power will decry the filibuster.
3) Grow up.

Posted by: BigMac4 | December 28, 2009 10:02 PM | Report abuse

"Where one party dominates the executive,legislative, and judical branches, it is good that there are actions requiring a super-majority vote."

Alternatively, it's good that there are elections every two years for one whole chamber of Congress and a third of the other. It is not good that those elections will pass judgement on the members of the House as a surrogate for passing judgement on Senate rules. It is not good that the House has been turned into the Senate's servant. It would be good for a majority to be judged on its record, and to argue otherwise is to adopt the painful rictus of the anti-government cynic.

Grow up.

Posted by: pseudonymousinnc | December 29, 2009 12:31 AM | Report abuse

dwcooper: "As others have noted, the power to do good is the power to do ill, and power tends to corrupt. This has been on display lately."

It has? I haven't seen it lately. If the reference is to Ben Nelson's deal for his home state on Medicaid expansion, he might not have gotten it had the legislation required 50 votes instead of making him the 60th vote. The supermajority requirement caused this dealmaking, not the one-party control (if you can call it "control").


"Where one party dominates the executive,legislative, and judical branches, it is good that there are actions requiring a super-majority vote."

Why? I thought democracies were supposed to enact the will of the people as expressed by their elected representatives. There are already many majorities at work here: direct representative majorities as expressed in the House, state majorities as expressed in the Senate, indirect national majorities in the presidency. How much harder should it be to get things done?

And would people supporting the supermajority feel the same way if the parties were reversed? I'm against it no matter what party is in control. As the post above says, let the majority be judged on its record. That's supposedly why we have elections.

(And last time I checked, Democrats did not "control" the judiciary.)

Posted by: dasimon | December 29, 2009 12:47 AM | Report abuse

EK: You're quite right. Seems I responded before thinking it through.

Posted by: onewing1 | December 29, 2009 3:49 AM | Report abuse

They could just return to the old fillibuser rules that required the fillibusterers to be present and voting. You know, cots in the aisles, 24/7 speeches, the way it used to be done. Make them work for their fillibusters, so that it isn't used on truly routine matters like a DOD appropriations bill.

However the reason the fillibuster is used so much in recent decades is that the Senate is much more ideologically polarized. Jay Cost has an excellent article on this.
http://www.realclearpolitics.com/horseraceblog/

Posted by: andrewp111 | December 29, 2009 5:48 AM | Report abuse

oh god, this is Ezra Klein realizing that his views are not going to carry the day in the senate, the way they havent carried the day with the american people (CNN has 61% opposed, only 36% in favor of the health care bill).

whatever happened to the refrain from the bush adminstration that big changes should not be pushed through with narrow majorities?

i really liked that idea, much better than this "blame the unpopularity of our health bill in the party and among the people on the powerless minority party"

Posted by: dummypants | December 29, 2009 11:01 AM | Report abuse

ezra klein admits the only place republicans tried to do away with the fillibuster is with as applied to judicial nominees.

its hard to expand this to uses of the filibuster for legislation since the role and constitutional role and power of the executive and congress in the two process are mirror images of each other. judicial nominees are much more recognized as the perogative of the president than legislation is recognized as the sole perogative of ONE WING of congress (the party with a bare majority). there is ample textual support in the consitution for this and interpretation up to this day recognizes this distinction.

there is, moreover, a very practical difference that cant be ignored in comparing the judicial fillibuster and the legislative fillibuster: judges die, judges retire, and you need someone, sooner or later to take their place. laws don't die, laws dont retire. even if laws sunset there is no presumption that a law need take its place. the lack of a health care bill (especially one as unpopular as this one) is not the same sort of constitutional crisis as the lack of a chief justice of the supreme court, or the 4th circuit court of appeals, for that matter.

in trying to blur these constitutional and practical distinctions between the two fillibusters, klein does his readers without expertise in this area a real disservice and exposes himself as a cheap political hack.

Posted by: dummypants | December 29, 2009 11:16 AM | Report abuse

Oh, pants, your attempt to parrot Byron York and end with a zinger falls as flat as a fart in church. Instead, you resort, in a fairly pompous way, back to the tired wingnut trope that "all government is bad and we're here to prove it".

Posted by: pseudonymousinnc | December 29, 2009 11:25 AM | Report abuse

pseudo - sounds like you've white flagged it on substance, which, if nothing else, puts you ahead of klein in the intellectual honesty department.

thanks for commenting.

Posted by: dummypants | December 29, 2009 1:56 PM | Report abuse

dummypants:

First, I don't know what poll you're referring to, but those numbers have a very low number of undecideds, which seems unlikely.

Second, some of the opposition comes from the left. So if you're really interested in legislation that has the support of the American people, you should advocate putting back in a lot of the stuff that was taken out--like the public option, which has substantial public majority support.

Third, I've heard that polling shows that while people may generally oppose the bill, they still support the bill's specifics. So go figure that one out.

Finally, I did find a CNN poll that says 85% believed the bill would raise their taxes, even though that's clearly not in the bill. So I guess facts don't matter if the polls say differently? Opinions may change when the bill passes and people realize what they thought is in fact not true.

Posted by: dasimon | December 29, 2009 6:00 PM | Report abuse

dummypants:

One other point. What does the popularity, or lack thereof, have to do with the filibuster?

If 60 Republicans were trying to push through another set of tax cuts and 40 Democratic senators were blocking it, would you take the same position? Why not let the majority do what it wants, and if it's unpopular then allow them to be judged at the voting booth?

As for "whatever happened to the refrain from the bush adminstration that big changes should not be pushed through with narrow majorities?" I'd say that 59-41 would not be a "narrow majority," yet still could be blocked by the minority. Also, that warning is more prudential than legal: it might not be a good idea politically or policy-wise to push dramatic change with narrow majorities, but it's hard to deny the right of the majority to do so if it wants to take that risk.

Posted by: dasimon | December 29, 2009 6:15 PM | Report abuse

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