Won't liberals need the filibuster?
Liberals are all abuzz with suggestions for filibuster "reform." They were not in evidence, of course, when Republicans were proposing filibuster reform to end Democratic obstructionism on judicial nominees during the Bush administration. Aside from the sheer hypocrisy, there are constitutional and practical considerations the Democrats might want to consider.
Let's start with the practical. The Democrats may want to hold on to the filibuster in all its glory. After all, Senate Minority Leader Mitch McConnell will have a healthy 47-member caucus. You add in some of the moderate Democratic senators who will be on the ballot in 2012 -- Claire McCaskill, Ben Nelson, Bill Nelson, James Webb, Kent Conrad and Jon Tester, to name a few -- and you quickly get to 53 votes or so on many measures that the left will not be so enamored of. There may be votes on a major renovation of ObamaCare, permanent extension of Bush tax cuts, pro-growth energy legislation, scaling back on government regulation, and limits on the EPA's power. Does the left really want to take the filibuster from the grasp of liberal Sens. John Kerry, Barbara Boxer, et. al.? (Wait, now I am beginning to fancy the idea.)
As for the constitutional issue, there isn't really one. Roger Pilon, CATO's vice president for legal affairs, tells me, "The Senate filibuster isn't recognized as such by the Constitution, but it arose early in our history under the Article I, section 5 power of each House 'to determine the Rules of its Proceedings.' And it's gone through several iterations over the years." Yet there is good reason to keep it, and to make sure that, as the Founders intended, the Senate remains a different sort of legislative body than the House.
David Bernstein, a law professor at George Mason University, e-mails me:
I think it does violate the spirit of the Constitution to filibuster nominees or treaties, because I think these should be subject to an up or down vote because of the Senate's special constitutional role.
Beyond that, it's obvious that the filibuster has a "conservative" bias, but not in the political sense. Rather, it's conservative in the sense that it makes it harder for the Senate to do stuff. This obviously suits liberals when conservatives are in power, and vice versa. I don't recall many liberals calling for filibuster reform when Republicans controlled the Senate. The filibuster is basically neutral ideologically -- it makes it harder to pass Obamacare, but also harder to repeal it, or, for that matter, harder to privatize parts of Social Security if there is a Republican House, Senate, and president. So, putting partisan politics aside, the question for filibuster reform is, "do you want to make it easier for the Senate to do things, and especially to do things with narrow partisan majorities."... Finally, as for the objection that the filibuster magnifies the advantage that small states already have in the Senate, I would note that the constitutional design of the Senate is precisely to ensure that small states have disproportionate power.
Others raise a related but distinct point. Steven Calabresi, law professor at Northwestern law school and co-founder of the Federalist Society, argues, "The most important reform that is needed is to get rid of holds. The current practice whereby one Senator can tie up a nomination for months is highly dysfunctional."
Those planning on tinkering with Senate rules are well advised to do some serious thinking about the unintended consequences of their desire to give the Senate majority more power. So long as McConnell, 46 other Republicans and a slew of nervous red state Democrats are there, they might want to leave well enough alone. And for those who find wisdom in the Founders' design of the Senate, it would be wise to retain a filibuster rule that, as Todd Gaziano of the Heritage Foundation, succinctly put it, "makes it harder for the politicians that cater to rent-seeking special interests to enact more laws that are generally unconstitutional, fiscally irresponsible and/or undermine our liberty." Well, you can understand why the left would be on the other side in that debate.
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