A productive Congress doesn't weaken the case for filibuster reform
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.
| December 23, 2010; 9:00 AM ET
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