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Is governance something we should only be able to do occasionally?

I'm not sure exactly how useful it is to have an argument in which Ross Douthat says "no, you don't really believe that," and then I reply, "yes, I certainly do," and then Douthat says "no, you don't," and so forth. At the very least, it would seem to make for dull blogging.

But just this once: Yes, I really would prefer to live in a world without a filibuster. Indeed, I'd prefer it so much that I've consistently argued for the elimination of the rule on a six- or eight-year time lag, by which point Barack Obama would not be in office and the party in control of the Senate is anybody's guess. This isn't about making Obama's presidency go better. It's about making the legislative process work better.

Governance shouldn't be the sort of thing that happens only under extraordinary circumstances. But that's the implication of Douthat's post. He compares George W. Bush's tax cuts -- which were rammed through the reconciliation process and so will sunset this year -- to the Democrats' health-care bill, which was done through the normal order. "The foolish party will see its big policy achievement disappear after 10 years," he says. "[W]hile the wise party has a chance to forge a more lasting achievement. Folly has been punished; sagacity may be rewarded. Now explain to me again why this shows that the legislative system is hopelessly broken?"

Will do. The difference between the two parties was not relative levels of sagacity. Indeed, this is the first time I have heard Douthat, or anyone else, use the word "sagacity" in reference to the current Democratic Congress. The difference, rather, was something that people do frequently point out: votes in the Senate. Democrats had 60 senators in 2009. Republicans had 54 in 2001. If Democrats had only 54 this year, health care would have gone through reconciliation, or nowhere at all.

But this isn't the sort of majority you stumble upon every day. It follows a disastrous war, Hurricane Katrina, a financial crisis, and the most impressive grass-roots presidential campaign in a generation. It's a larger majority than either party has had since the '70s, and it will not soon be repeated.

Majorities normally reside in the 50s. Most large pieces of legislation will be rammed through the reconciliation process. They will be written in the backward, elliptical fashion required by the Byrd Rule. That is to say, legislation will be obstructed by one rule that was not intended to be used this way, and it will be written in accordance with another rule that was meant for other purposes. Government by loophole, however, is not good government.

So that's where we're left: In normal times, the legislative process barely functions, and when it does function, it's half-measures passed through a process with more jagged edges than a Play-Doh Fun Factory. And we're not in normal times. The government is going to have to do much harder things than it was able to do this year if it's to avert much worse consequences than people have really faced up to.

If we don't get financial regulation right, we're probably in for a slew of crises, much as happened in the years leading to the Great Depression. Cap-and-trade carries worse perils, as the does the damage that health care and aging are set to inflict on the government's finances. As Peter Orszag pointed out back when he was at the Congressional Budget Office, imagine a financial crisis that takes place when the government can't really intervene because the bond markets don't think the political system will support efforts to get the budget under control. Fun!

One problem with this conversation, however, is that it's not just about the filibuster. The filibuster is just where a couple of trends -- polarization, the preeminence of the executive, the diminution of the legislative branch, the ideological realignment of the parties, the nationalization of the media, etc -- cross streams. What's different about the Senate isn't that the filibuster exists but that it's being used this way. And it's being used this way because the country's politics have changed, and much for the worse. But that's a story I'm still trying to piece together, and which is too big for this blog post.

At any rate, I do wish that people who defend the filibuster would admit that this is an experiment. The legislative process has not traditionally been subject to a supermajority requirement. It's happened occasionally -- the Civil Rights Act, say -- but never constantly. There's a reason that actual votes in the Senate require 51 senators, not 60. It may be that that was a mistaken decision on the part of the Founders, and I'd be interested to hear that argument. But there's a worryingly unexamined radicalism that's taken root when people find it literally unbelievable that anyone would prefer living in a system that works through majority rule, which is how the system has worked for most of its history, and how most systems in other countries work.

By Ezra Klein  |  January 6, 2010; 7:08 AM ET
Categories:  Senate  
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Comments

"But there's a worryingly unexamined radicalism that's taken root when people find it literally unbelievable that anyone would prefer living in a system that works through majority rule, which is how the system has worked for most of its history, and how most systems in other countries work."

And not just "majority rule," but "majority rule of the chamber intentionally structured to be most insulated from democratic forces."

51% of the HOUSE is (roughly) majority rule. 51% of the Senate itself often represents a supermajority of voters.

Posted by: NS12345 | January 6, 2010 5:36 PM | Report abuse

"The filibuster is just where a couple of trends -- polarization, the preeminence of the executive, the diminution of the legislative branch, the ideological realignment of the parties, the nationalization of the media, etc -- cross streams."

Do you mean cross streams in the Ghostbusters sense? I don't think the filibuster is warranted even in the event of attack by a gigantic Stay Puff Marshmallow Man. Second Amendment or not, It's time to confiscate Sen. Lieberman's proton pack.

Seriously though, like most sensible people I don't always believe that the immediate implementation of the will of the majority is the best thing. But what's ludicrious however is the suggestion that somehow it's the filibuster, and only the filibuster, that stands in the way of the tyranny of the majority. The American constitutional system already offers ample protection against the tyranny of the majority. I might also add that the very existence of the Senate itself is a consitutional check against unbridled majority rule, since every state gets two Senators, regardless of their state's population.

The suggestion that the filibuster is the only thing that stands between us and majority tyranny is merely a reflection of your average Senator's egomania.

Posted by: seldomused | January 7, 2010 12:17 AM | Report abuse

There is a separate argument which seems more like a *joker* in American political sytem. Namely, the emrgence of a *third Party* which make the constitution work as it was created - by majority vote.

If you study comparative government, it's invariably true that in continental Europe there is hardly a single government today ruled by a two-party system. Moreover, turnover of political leadership and party is more common and regular under consitutional order.

Posted by: hariknaidu | January 7, 2010 5:39 AM | Report abuse

"Is governance something we should only be able to do occasionally?"

In a word ... yes. You seem like a smart guy. Yet you put your faith in elected officials.

"Governance shouldn't be the sort of thing that happens only under extraordinary circumstances." I disagree -- that is exactly what it should be. At the federal level anyway.

Posted by: NoVAHockey | January 7, 2010 11:47 AM | Report abuse

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