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Posted at 9:00 AM ET, 12/23/2010

A productive Congress doesn't weaken the case for filibuster reform

By Ezra Klein


Two of the themes running through my writing recently appear to contradict: How, on the one hand, can I believe we've had the most productive congress in four decades, yet on the other, argue that the past two years show that we need major changes to reduce obstruction in the Senate?

I don't find it that hard, actually. Start with what we actually saw during the past two years: the largest congressional majorities since 1975. A new and popular president. A financial crisis. We had more action than we've seen in a generation because we were, for reasons both electoral and circumstantial, better set up for action than we've been in a generation. That got us a lot of new legislation but also a Congress that has dodged too many hard decisions, proved relentlessly partisan, failed to pass necessary legislation, almost failed to pass most of the major legislation that did get through, and made a slew of bad compromises to attract the necessary votes. It was not, in other words, such a spectacular performance that improvement cannot be imagined.

But that's not the heart of the case. Rather, the real question is this: Going forward, is the danger that we'll do too much, or too little? In recent years, we've seen more procedural obstruction under both parties than at any previous time in the past century. If you believe that the thing to fear is Congress doing too much in the coming decades, that might comfort you. But if you believe the thing to fear is Congress doing too little, it won't.

The latter, I think, is the correct worry. Our problems are on autopilot. Our solutions are not. If we don't do anything, rising health-care costs will leave the government insolvent and the nation poorer. If we don't do anything, our best science says that global warming will wreak havoc on both our country and the planet, and do so in ways that are both unpredictable and potentially irreversible. And somewhat less catastrophically, if we don't do anything, our infrastructure will continue to deteriorate, our immigration system will continue to break down, our education system will continue to tread water.

And if we don't do anything, I'd argue, our political system will continue to disappoint. The polls -- both in the abstract and in the judgments of the lame-duck session -- continue to show that the American people want the two parties to join together to get things done. But the filibuster is a powerful incentive to do just the opposite: It gives the minority the power to make the majority fail at its job, and now that both Democrats and Republicans have realized that kneecapping the other is the quickest way back into power, it's the strategy that they turn to first. The lame-duck session was so productive precisely because the congressional session that preceded it was less productive than a supermajority of members thought it should've been. That's an indictment of the system, not an argument in its favor.

You might say, however, that the American people don't just want action. They want bipartisan action. To some degree, I think that's right. When the two sides go to war over this or that bill, it turns off the public. But the theory that the filibuster encourages bipartisanship gets it exactly backwards. The START treaty, which first looked unlikely to pass, and then barely got the required votes, and then suddenly got many more than the required votes once its success appeared assured, shows something important about the political system: For the minority, the first-best outcome is defeating the majority, but the second-best outcome might be working to make the bill better and help it pass.

That the filibuster increases partisanship is one of the most consequential -- and poorly understood -- manifestations of the law of unintended consequences in the government. In a world without a filibuster, where legislation can pass if the majority wants it to pass, it would be easier for members of the minority to break ranks, as a strategy of relentless obstruction wouldn't work, and their unyielding opposition would no longer decide where legislation lived or died. And in a world where the minority can't quickly return to power by stopping the majority from governing, their constituents and allied interest groups might begin demanding a voice in the legislation that does pass.

Another argument is that the filibuster would make it easier for political majorities to pass legislation the people don't want. That's true, though it would also make it easier for them to pass legislation the people do want. More importantly, though, it would make it easier for the public to connect cause to effect and judge the incumbent party. Right now, to understand why Congress is acting the way it's acting, you need to pay an awful lot of attention to congressional procedure, and most people don't. Removing procedure from the driver's seat of our democracy would make it easier for voters to impose accountability of legislators.

Whether Congress got a lot done over the past two years is not the right question to ask. The right question to ask is whether it would've been better or worse in the absence of the filibuster. And I think the answer, looking backward as well as looking forward, is better. The fact that a company with dysfunctional management processes might beat earnings estimates some years doesn't mean the dysfunctional processes couldn't be fixed. Both the earnings estimates and the performance might have been higher still if the company worked better, and so more was expected of it.

When it comes to Congress, it's not just that more should be expected of it. It's that more will be needed of it. And if the past two years were as good as it gets for legislating, well, that's just not good enough.

By Ezra Klein  | December 23, 2010; 9:00 AM ET
Categories:  Senate  
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Next: Breaking the filibuster in one graph


GOP blocks on judicial appointees is enough reason for reform.

So are secret holds.

Posted by: lauren2010 | December 23, 2010 9:31 AM | Report abuse

"The latter, I think, is the correct worry. Our problems are on autopilot. "

And how were these problems created? Oh, right, by the United States Congress that kept on passing new legislation. In other words, doing too much.

The solution to a hangover isn't going back to the bar.

Posted by: krazen1211 | December 23, 2010 10:09 AM | Report abuse

"The solution to a hangover isn't going back to the bar."

The bar being the GOP.

Posted by: lauren2010 | December 23, 2010 10:20 AM | Report abuse

"It gives the minority the power to make the majority fail at its job, and now that both Democrats and Republicans have realized that kneecapping the other is the quickest way back into power, it's the strategy that they turn to first. "

I call Villager false equivalence. The Democrats did not use minority obstructionism to regain Congress and the White House in 2006 and 2008. Nor do I think it will be an important factor when they eventually regain the House (the GOP won't let them obstruct anyway if they bothered to try).

Posted by: redwards95 | December 23, 2010 10:22 AM | Report abuse

"The bar being the GOP."

Wrong, as usual. The Medicaid program that is the source of the following problem was passed by Lyndon Johnson.

'If we don't do anything, rising health-care costs will leave the government insolvent and the nation poorer'

Posted by: krazen1211 | December 23, 2010 10:31 AM | Report abuse

Here's a great example of how so called 'productive' governments create more problems than they solve and in fact interfere with the core responsibilities of government.

Want to know the single biggest reason why New York City is thinking about laying off thousands of teachers, jacking up parking meter fees and scaling back fire protection?

The answer boils down to one word: pensions.

The public pension time bomb that fiscal watchdogs and this page have warned about for years is now exploding - and ripping huge holes in government budgets across the state.

No municipality will sustain more damage than New York City, which next year faces a mind-boggling pension tab of $8.35 billion - a 19% increase in one year - at a time when Mayor Bloomberg and the City Council are forced to hack away at practically every other expenditure.

We don't need a government solution to global warming.

Posted by: krazen1211 | December 23, 2010 10:42 AM | Report abuse

Naysayers are going to point to your graph and say something like "It isn't normalized. The Senate considers more bills now than they did in 1920!" Probably true, and if so there should def. be more cloture votes, but they don't consider twice as many bills as they did a few years ago!

For instance the 105th considered 4122 while this year there were 4058 (a decrease).


Posted by: chrisgaun | December 23, 2010 11:14 AM | Report abuse

In selecting an appropriate visual symbol of the Senate in its founding period, one might consider an anchor, a fence, or a saucer. Writing to Thomas Jefferson, who had been out of the country during the Constitutional Convention, James Madison explained that the Constitution's framers considered the Senate to be the great "anchor" of the government. To the framers themselves, Madison explained that the Senate would be a "necessary fence" against the "fickleness and passion" that tended to influence the attitudes of the general public and members of the House of Representatives. George Washington is said to have told Jefferson that the framers had created the Senate to "cool" House legislation just as a saucer was used to cool hot tea.

Posted by: marteen | December 23, 2010 11:19 AM | Report abuse

'If we don't do anything, rising health-care costs will leave the government insolvent and the nation poorer'

Posted by: krazen1211 | December 23, 2010 10:31 AM | Report abuse

or hey we can always consider Chapter 9 Bankruptcy right as we learned in Wonkbook. One of the main reason pension benefits aren't funded (other than the fact that they're way out of step with what private employers have been doing for years is that too much expense is taken up by healthcare costs and it leaves nothing for current services and pension is usually third in line and left with little to nothing.

Posted by: visionbrkr | December 23, 2010 11:31 AM | Report abuse

Well, duh.

Without a filibuster, we could have had an adequate, populist, infrastructure-centered stimulus in the first month. And that would have changed everything - not only the federal and state balance sheets and the prospects for teachers and poor people, etc, but the quality of financial regulation, the outcome of the midterms, maybe even the war in Afghanistan (though maybe not - he's just being blackmailed by our military overlords, it looks to me like it's that sinister).

I read over and over about why they should do it, why they need to do it. What I don't understand is why they *didn't* do it, in January '09.

Posted by: JaneG | December 23, 2010 1:28 PM | Report abuse


medicaid has saved 1000s of lives.

Including my dear mother's (at least for a few years).

Many more 10,000s of sick and disabled Americans today live productive lives ONLY because of medicaid.

How can you call that a failure?

Simply because it is expensive to treat people?

Lives are more important than money. Do you agree or not?

Now, Somalia doesn't have medicaid. So would you call Somalia a successful society based on this particular issue? Would you prefer that 10000s American lives be lost or destroyed instead of keeping medicaid?

Now, I am all for reforming programs to make them more efficient and sustainable, and eliminating or reducing fraud and such, but I am not for calling them failures just because beer-jockeys like you want to save a few points on your tax rates or are too lazy or too impatient to let smart and good intentioned people try to fix the system over time instead of just trashing it.

Posted by: lauren2010 | December 23, 2010 1:42 PM | Report abuse

Fillibusters have become a way rather than an exception. As of two weeks ago the republicans had conducted 89 fillibusters, as unheard of amount.
The fact that one person can hold up a major bill is detrimental to our political system and our country.
Something sure needs to be revised.

Posted by: kathlenec | December 23, 2010 1:49 PM | Report abuse

Statists are never satiated.

Posted by: RightKlik1 | December 23, 2010 8:59 PM | Report abuse

Search on the web "Wise Health Insurance" if you have a condition such as high blood pressure, asthma, diabetes, cancer, depression or have had an injury, like a broken leg and need health Insurance NOW.

Posted by: bilythompson | December 24, 2010 3:34 AM | Report abuse

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