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You don't need the filibuster to defeat bills that don't have majority support

"Killing the filibuster outright is unwise," commenter Lommilialor writes in response to my earlier post on the subject. "Had we done that before 2000, Social Security would now be privatized and bankrupted and the Bush tax cuts would not be soon to expire."

You hear this a lot, and it's always worth reminding people that it's not true. Social Security privatization wasn't doomed by the filibuster. It was doomed because it didn't have a majority of senators on its side. The bill never made it to the floor for a vote (which is where it would have been filibustered). In fact, it never got out of committee at all. There was never even a real bill to speak of. George W. Bush proposed the idea, and it proved so violently unpopular that Republicans decided against pursuing it. Democrats won that one without resorting to minority obstructionism, which is how it should be.

As for the tax cuts, this gets more complicated. You could pass permanent tax cuts with 51 votes if you found offsets for the cuts. But if you're going to fund them by increasing the deficit, then they have to sunset at the end of 10 years. In practice, though, this means that quite a few of them are permanent: The Obama administration is attempting to let the tax cuts for the very rich expire, but they're leaving most of the rest in place, as raising taxes is terrible politics. That's a pretty good procedural deal for tax cutters, and it's not a deal enjoyed by, say, people who want to reform the financial system or raise mileage standards on trucks.

By Ezra Klein  |  February 19, 2010; 10:24 AM ET
Categories:  Senate  
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I urge your deluded commenter to go read through the archives of Talking Points Memo from the period where Bush suggested privatizing Social Security. Elected Republicans couldn't run from the epically unpopular idea fast enough, and they even tried running away from the name "privatization" (claiming it was some sort of invention of dastardly Democrats). I wish it would have came up for a vote.
In fact, Harry Reid should bring up privatization for a vote in October.

Posted by: flounder2 | February 19, 2010 10:55 AM | Report abuse

I'm with you on Bush's SS Reform. People always forget that there was no filibuster there.

I'm confused by the tax paragraph though. With our current rules, wouldn't a bill including a permanent tax cut still be subject to the filibuster or reconcilliation's sunset clause? Does the sunset clause only apply if the bill is deficit increasing? In a system without the filibuster, wouldn't you be able to pass deficit increasing tax cuts without reconcilliation or a sunset clause?

Posted by: MosBen | February 19, 2010 11:07 AM | Report abuse

A few things. First, whether or not the filibuster had been used on SS Reform or it hadn't, it's the logic of the objection that is the problem. Boiled down to it's essence, it says: "I would rather fail that have someone else succeed." The reality is, an environment that would make it easy for liberals and progressives to advance their agenda would also make it easy for conservatives to advance their agenda. One group may be better at it than the other at any given time, or more mercenary or ruthless about using the available tools, but either it's going to be easier for everybody, on average, or it's going to be harder on everybody. As much as I'd prefer it to be easier for Republicans to pass legislation and harder for Democrats (in theory, anyway), there's no rational or justifiable way to craft a filibuster rule that applies to Democrats but not Republicans.

So the choice is simple: either it's almost impossible for you to get what you want, but nobody else will, either. Or, it will be easier for you get to what you want, but it will be easier for the other guy to get what they want, too.

Put another way, do you think the Democrats would have hesitated to filibuster SS Reform, even if Republicans in the senate had been for it? Would that then make the objection more valid? The fact is, having it be so hard to advance legislation has consequences for both sides. So would making it easier. Either you accept that it takes a super-duper majority to ever achieve any major policy goals, or you decide that occasionally the other guy will achieve policy goals that you don't like. As much as we might want to, you really can't have your cake and eat it, too.

Posted by: Kevin_Willis | February 19, 2010 11:16 AM | Report abuse

I beleive that Dems may be planning a vote on support of Medicare and Social Security soon. Is that right, Ezra?

Posted by: drindl | February 19, 2010 11:17 AM | Report abuse

IIRC, they couldn't even pass social security privatization in the House. Per Wikipedia, Blunt didn't even include it on his top whip priorities in 2005.

I can see where the filibuster could prevent legislation from passing in the House b/c there's little willingness to take a tough vote only to have something die in the Senate.

But that doesn't seem to be what happened here. At all. Voters hated the idea--especially older voters, who form the Republican base. Therefore, a majority of legislators would not vote for it.

The filibuster didn't save social security. Democracy did.

Posted by: theorajones1 | February 19, 2010 11:27 AM | Report abuse

*The reality is, an environment that would make it easy for liberals and progressives to advance their agenda would also make it easy for conservatives to advance their agenda.*

That is not correct. The Republican agenda is one that is amenable specifically to bypassing the filibuster. What are the big Republican initiatives stymied by the filibuster? The best I can come up with is drilling in the Alaska's Wildlife Reserve. Especially since when the Republicans were in charge, the filibuster was merely a last-resort thing, not a "everything requires 60 votes" procedure.

You really need to re-read Ezra's last post on this issue.

Posted by: constans | February 19, 2010 11:30 AM | Report abuse

"The Obama administration is attempting to let the tax cuts for the very rich expire, but they're leaving most of the rest in place, as raising taxes is terrible politics."

Ah, but they're not so terrible if you can create a bipartisan deficit commission to raise them for you. And I don't believe that commission's recommendations will stop at $250K.

Of course, I've always known those tax hikes were coming. But I'd be curious to know which of you libs actually believed people below $250K wouldn't see their taxes raised by even "one dime," as Barry said.

Posted by: cpurick | February 19, 2010 11:34 AM | Report abuse

Kevin, I'm with you on eliminating the filibuster, but I don't think the SS argument is immaterial. Liberals sometimes argue, as Lomiallior did here, that eliminating the filibuster will allow all the craziest ideas the Republicans ever have to run through the system, but this just isn't the case. There are lots of choke points in our system and eliminating the filibuster won't get rid of them. We weren't "saved" from SS Reform because we had the filibuster, but because it proved to be so unpopular that it never came up for any kind of vote.

We don't need to worry about crazy things passing under cover of night because bills will still need to be popular enough to gather a majority in their committees, in both houses, get signed by the president and then not gutted by the courts.

Posted by: MosBen | February 19, 2010 11:56 AM | Report abuse

While it doesn't obviate Ezra's point per se, there is an argument that the majority of Republicans necessary to push through SS privatization didn't come out for it because they knew it would face a filibuster. In that case, congressmen on the fence have an incentive not to get out in front of a potentially divisive issue, knowing it's ultimately doomed.

Posted by: JEinATL | February 19, 2010 12:14 PM | Report abuse

You could argue that progressives should favor keeping the filibuster (or some other mechanism that protects minorities), because the Senate has a structural conservative bias to start with. Voters in small states are disproportionally represented and the small states are mostly Western and mostly conservative.

Posted by: tl_houston | February 19, 2010 12:15 PM | Report abuse

Kevin Willis puts forward the right choice, and I think it's one where most reasonable people will come down on the same side. If the price of being able to pass legislation is that the other side can pass legislation too, so be it. If the Republicans get into power and they have a majority in both House and Senate, plus the President committed to slashing Medicare, then so be it.

Posted by: etdean1 | February 19, 2010 12:19 PM | Report abuse

"There was never even a real bill to speak of. George W. Bush proposed the idea, and it proved so violently unpopular that Republicans decided against pursuing it. "

Good on the Republicans. Perhaps if the Democrat's didn't have a filibuster proof majority for a few critical months, they would have been less full of hubris, and would have decided against pursuing the form of HCR that they did.

Posted by: bgmma50 | February 19, 2010 12:21 PM | Report abuse

The reason the GOP didn't have 50+ votes to privatize SS is because of the THREAT of the filibuster by Dems.

If they were afraid of privatizing SS, Bush would have never brought up the debate in the first place. They were simply stunned that in this one case they couldn't scare the Dems into going along with their crazy and dangerous ideas, and didn't expect them to stand their ground.

Posted by: Lomillialor | February 19, 2010 12:37 PM | Report abuse

BTW, Ezra's point about the GOP lack of "majority support" only concerns one point in time during the GOP era of control. I never claimed that the vote was attempted and failed because of the filibuster. What I said was that without the filibuster, social security would have been privatized by now. Just because at one point in time the GOP didn't act, it doesn't mean that Bush/Cheney wouldn't have eventually twisted arms to get their 51 votes. It seems clear to me that their history of arm twisting on so many issues makes it obvious they would have eventually succeeded at getting the 51 votes **IF** the filibuster was not an issue.

Posted by: Lomillialor | February 19, 2010 12:52 PM | Report abuse

BTW, just to say again, if Social Security Reform under Bush was the "privatization" of Social Security, then Obama's Healthcare Reform is (or, at least was, with the public option) "nationalizing medicine". And don't forget those death panels Sarah Palin talked about.

Seriously. I love how "words mean things" when conservatives are talkin' smack about healthcare, but tossing around misnomers and clear distortions is fine when talking about conservative issues.

It was essentially a small private option in what remained a public plan. Call it "the private option", if you will. The last thing Bush's plan did was "privatize" social security. Not even anywhere close.


Posted by: Kevin_Willis | February 19, 2010 1:19 PM | Report abuse

" What I said was that without the filibuster, social security would have been privatized by now."

A) Given that there were no plans to privatize Social Security, no, it would not have been "privatized". Even if the Bush plan passed without resistance, Social Security would not have been privatized.

B) The plan would not have passed. The case was poorly made, opponents set the narrative (as should be clear from the fact that people still call it "privatization" without batting an eye--would you call HCR Obama's "death panel healthcare nationalization plan"--with such equanimity?), Social Security remains the 3rd rail, and even the suggestion of allowing people to choose--as in, optionally--to put a portion of the SS taxes into a private account that would be invested in index funds in the stock market was scary. Plus, the idea of having individual, inheritable accounts was morally offensive to people who feel all social security taxes being paid now should immediately go to senior citizens. You make think it was a terrible idea or, like me, you might think it was a great idea, and perhaps the best policy initiative of the administration. Either way, it was never going to happen. Filibuster or not.

In any case, assume the filibuster saved us from SS reform. From the evil of individuals getting to choose to put a small portion of their Social Security taxes in a private account--the tragedy! The price of that is you don't get healthcare. There ya go. That's the deal.

Posted by: Kevin_Willis | February 19, 2010 1:28 PM | Report abuse

I generally support majority rule and the end of the filibuster. If the majority party passes bad policies through majority rule, it will be easy enough to repeal those policies through majority rule when control changes hands.

The obvious exception is for judicial nominees. These folks get lifetime appointments to very powerful (and increasingly political) positions. There should be a mechanism for blocking nominees who are far outside the mainstream and completely unacceptable to the minority.

I see two possible solutions, both of which would require a constitutional amendment.

First, we could get rid of lifetime appointments. Judges and justices could still receive long appointments, maybe 16 or 20 years, thus preserving their insulation from the political process. This would ensure regular turnover on the courts, which would limit the damage an "activist" judge could do.

The other option would be to keep lifetime appointments, but constitutionally require a three fifths or two thirds vote to confirm. This would prevent presidents of either party from nominating extremists.

Of the two, I favor getting rid of lifetime appointments. In the aftermath of the Citizen's United ruling and Justice Alito's "not true" moment at the State of the Union, we can no longer exclude the judiciary from the "political" branches of government. Lifetime appointments are not appropriate for a 21st century democracy. If such an amendment were proposed, I would also like it to limit judges to one term on each court (district, appellate, and supreme).

The major problem with keeping lifetime appointments but requiring supermajorities to confirm is that a minority could block confirmation even of mainstream nominees.

Aside from judicial nominations, I say end the filibuster.

Posted by: Red79 | February 19, 2010 1:32 PM | Report abuse

Lomillialor, but the Dems didn't stand their ground. They didn't have to because there wasn't a vote on anything. Republicans ran away from it because it was massively unpopular.

That said, in the somewhat rare instances where one party has control of both houses of Congress and the Presidency, they're probably going to pass laws that the opposition isn't going to like. If Republicans were in charge without a filibuster we'd be having tax cuts, etc. If there were no filibuster now we'd have HCR w/ a public option. Most of the time though, a party won't have that many seats and they'll have trouble in committee, or in one of the houses of Congress that they don't control, or the President will veto their bill. Or hell, maybe the courts will deem it unconstitutional.

Rule by majority vote is not the same as rule by dictator.

Posted by: MosBen | February 19, 2010 1:33 PM | Report abuse

SS privatization is the ONLY major ideological issue during the Bush era where Dems were willing to stand their ground.

Enough conservative Dems voted WITH Bush's tax cuts and the Iraq War, for example, to make the filibuster threat meaningless.

Posted by: Lomillialor | February 19, 2010 1:50 PM | Report abuse

Filibusters ought to be abolished. They are a fraudulent device that enables Senators to evade responsibility for the consequences of their actions or inaction. Requiring a super majority to end debate enables Senators to lie and claim they support (or oppose) a given position be hiding behind the 60 vote requirement needed to shut off debate.

A filibuster stopped health care "reform". It would have been much better had it passed if a simple majority could thereafter have repealed it, either after the next election or after Obama is defeated rather than blocking it because 60 senators wouldn't vote "yes".

There are many things that conservatives will want to do after 2010 or 2012 that we will not be able to accomplish, such as massive spending cuts, because the odds of getting 60 solid conservatives votes is nil. It is far better for us if it is simple majority rule. Then we can do what we want when we win both Congress and the White House.

Someone has got to be accountable for what happens in Congress. Since it is rare that one party has 60 votes (and realistically you need 63 or 64 because there's always an Olympia Snowe or a George Voinovich who will sell out) accountability vanishes. That is the worst political sin of all.

Posted by: joelm2 | February 19, 2010 1:55 PM | Report abuse

I'd like to add to my above post that sometime in the future I would like to see a post from Ezra about the filibuster and judicial nominees. Could it be abolished for legislation only, while keeping it for judicial nominees? As I recall, back in 2005, the Republicans planned to abolish the filibuster only on judicial nominations. Could we do the reverse?

Obviously this would not be a substitute for constitutional reform of the judiciary. The Republicans will abolish the filibuster, at least for judicial nominees, the next time they control both the Senate and the presidency, which is bound to happen sometime.

Posted by: Red79 | February 19, 2010 2:20 PM | Report abuse

Red79, the filibuster is just a Senate rule, so I don't see any reason why it couldn't be eliminated for most legislation and/or executive branch nominees while being maintained for the judiciary.

Posted by: MosBen | February 19, 2010 3:06 PM | Report abuse

"Red79, the filibuster is just a Senate rule, so I don't see any reason why it couldn't be eliminated for most legislation and/or executive branch nominees while being maintained for the judiciary."

Technically, I'm sure that's true, but you'd get no cooperation from the Republicans on a rule that got rid of the filibuster where they like to use it best--on the Democrat agenda--but preserved it for where the Democrats used it best--against Republican nominees to the judiciary, especially the supreme court. It may not happen at all, but, if it does, I think it's going to have to be all or nothing. Or a change in the requirement (55 votes instead of 6) for both cases.

Wanting to preserve it for judicial nominees will, to many Republicans, sound like, "We want to abolish the filibuster for the Republicans, but keep it for the Democrats."

Thus, it's unlikely to happen that way.

Posted by: Kevin_Willis | February 19, 2010 3:54 PM | Report abuse

"Social Security would now be privatized and bankrupted and the Bush tax cuts would not be soon to expire."

How would putting 2% of Social Security contributions into private accounts 30 years before retirement bankrupt the system?

Posted by: kingstu01 | February 19, 2010 4:38 PM | Report abuse

I would still support abolishing the filibuster even if it meant abolishing it for judicial nominees. I still believe that we need to establish a mechanism for a minority to block extremist judges - especially from the Supreme Court. Ending lifetime appointments would be an acceptable alternative. Ideally that change would come via a constitutional amendment, as I mentioned in my first comment.

Such an amendment might have a decent chance of being ratified, since conservatives love to attack "activist judges" and liberals are suspicious of the court in the aftermath of the Citizen's United ruling.

Settling controversial matters through judicial edict is bad politics. In my view, it is much better to have those issues settled through the legislative process, since voters can "fire" legislators but cannot "fire" judges with lifetime appointments.

Obviously judicial review has its place, but the conservatives are right to attack those who would "legislate from the bench." Unfortunately, they only attack "activist" judges on the left.

Posted by: Red79 | February 19, 2010 4:45 PM | Report abuse

There's a crucial point that I really haven't seen from anyone other than myself, until just recently with Jonathan Chait:

"Would I enjoy watching that [Republican] program enacted into law [with no filibuster to stop it]? No. But I think the program would fail, and it would be easy for Democrats to regain power and overturn it, also without having a supermajority hurdle."


In my words:

"Thus, the argument that some Democrats make that we should keep the filibuster because it prevents the Republicans from doing great harm, like say eliminating social security or Medicare, is more than countered. Republicans would not dare eliminate such popular programs, and even if they did, the very next election they would be decimated at the ballet box (and tremendously weakened and revealed for generations), and the elimination would be quickly reversed. By contrast, the good Democrats would do, like universal healthcare, or perhaps eventually even Medicare for all, would essentially be permanent."


Try and see and let the lies dissolve is a huge ally of the Democrats and enemy of the Republicans.

And the filibuster is a huge enemy of try and see and let the lies dissolve.

Posted by: RichardHSerlin | February 19, 2010 8:51 PM | Report abuse

Bush got away with some really rotten dirty things and there is still a chance he may die in prison. {LET'S HOPE} However he badly misjudged the older people when he tried his dirty trick to let his adm. and Wall St. steal Social Security. They pulled off 3 Wall St. crashes and was able to steal most of the retirement funds in this country. If you remember it was Judas Bush who said he did not know Abramhoff even though pictures showed him and his family at the Bush ranch. Oh! I know you repubs remember.

Posted by: SWAMPYPD | February 19, 2010 9:03 PM | Report abuse

I might be confused (as usual) but I don't think the filibuster is relevant to budget busting tax cuts or spending increases. IIRC there is a rule of the Senate that bills and amendments which would add to the deficit are out of order and it takes 60 votes to waive that rule.

This is quite separate from the filibuster.

I'm certainly confused. I think that, in spite of that rule, one can add to the deficit via the budget reconciliation process. Howevr the rule does mean that chjanging the quite separate rule on the filibuster would have no effect whatsoever on the relationship between the Bush tax cuts and Senate rules. 60 votes for cloture = 60 votes to waive the don't increase the deficit rule.

I also don't know if the rule is new.

(it's just the sort of the Democrats would advocate and Republican oppose when Republicans have the majority and then would get 67 votes as soon as Democrats have the majority, because more Republicans than Democrats flip shamelessly depending on whose ox is gored).

Whether the rule is new or old, it's a rule which can be changed only by at least 67 seantors just as the rule requiring 60 votes for cloture. The examples of good things we owe to the filibuster are now down to 0.

Posted by: rjw88 | February 20, 2010 6:23 AM | Report abuse

SS reform went no where because Republicans knew the Democrats would filibuster any bill they passed out of the House so they decided not to stick their necks out and go forward with the bill. Ezra you say the SS reform didn't go anywhere because it didn't have popular support and yet you're all for Obama Care being rammed through even though it doesn't have popular support.

As far as the filibuster is concerned, even though it causes things I support like SS reform and conservative judges to be defeated it also keeps liberal boondoggles like Obama Care from taking over 1/6 of the U.S. economy so I guess it balances out. Personally, being conservative, I lean more towards passing fewer new laws and if the filibuster helps that then I'm all for it. It's a perfect world when the Congress can't pass any new laws.

Posted by: RobT1 | February 22, 2010 8:10 AM | Report abuse

"BTW, just to say again, if Social Security Reform under Bush was the "privatization" of Social Security, then Obama's Healthcare Reform is (or, at least was, with the public option) "nationalizing medicine". And don't forget those death panels Sarah Palin talked about."

Once again, Paul Krugman (and many others) would disagree with this statement:

Krugman's right; you're wrong.

Posted by: slag | February 26, 2010 5:56 PM | Report abuse

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