Entangled Alliances

Given the latest developments in the saga of the U.S. Stimulus Package, many are now asking whether it isn’t about time the filibuster was abolished.  To recap: in order to secure a filibuster proof majority for the Senate version of the bill, Democrats have allowed a centrist coalition of senators to cut over $80 billion of valuable job-creating provisions from it, thus guaranteeing three Republican votes.

The question of abolishing the filibuster has never been more pressing than at the present, where America is faced with an absurd, almost Daliesque situation: A Democratic Congress and White House allowing (largely) Republican Senators to strip jobs from the legislation that is America’s best hope of stemming the rise in unemployment caused by the biggest crisis since the Great Depression.

First, a quick primer. The filibuster is an archaic Senate rule that allows a lone senator to defy the majority by endlessly debating a piece of legislation, thus preventing a vote on it. In order to end a filibuster, there must be a “cloture vote” – three fifths of the senate, or 60 senators, is required for cloture. It has a rather accidental history (for a brief breakdown, read Matthew Yglesias’s article on it)  and most of its life it has been used sparingly; yet in recent times it has taken on the form of a oft-used partisan tool that arguably obstructs Congress from getting much done.  In the 1960s, no Congress had more than seven filibusters. The 110th Congress, which just ended, featured 137.

Obviously there are serious, albeit transient, political considerations to be taken into account when talking about abolishing the filibuster. Back in 2005 the Republican majority Senate, faced with Democrats willing to filibuster the President’s judicial nominees, mulled over the idea of bypassing the rule – the so called “nuclear option” . This, it was agreed, would have been very “bad” for Democrats. Now, faced with obstructionist Republicans that show no signs of wanting to work with Obama, nuking the filibuster suddenly seems like it would be “good” for Democrats. But an argument based on the current political status quo should never be allowed to make it out the gate, at least not if we are concerned with rules that are based on timeless considerations.

The most effective argument, then, for eliminating the filibuster is that it is anti-majoritarian and against the will of the electorate. By allowing a tiny minority to halt the plans of the majority it is an affront to the democratic rights of the populace, who elected their representatives to get stuff done. Of course, their representatives might then go on to do some pretty bad stuff, but if so then this is the cost of elected democracy and would,  hopefully, be recognised by the electorate who will then vote for someone else when they get their next go – someone who might well go on to do some pretty cool stuff if given half a chance. This is what Ezra Klein means when he says:

A world in which George W. Bush could possibly have passed Social Security privatization because he won the election is preferable to a world in which global warming cannot be addressed and health care cannot be reformed because Senate Rule 22 says so.

This is a pretty powerful argument, especially when you combine it with the observation that the filibuster is no longer – if it ever was – the last stand for the sincere crusader but instead a cynical prop in political warfare. The best evidence of this, apart from the massively increased use of the filibuster in the last decade, is the fact that it now operates as a threat, rather than an actual practice. The threat of a filibuster is often enough to turn the normal majority requirement for passing Senate bills into a quest for 60 votes. Indeed, given the tone of Washington these last few years, it is fair to say that the 50 vote majority requirement for passing legislation has now morphed into a 60 vote hurdle.

But is abolishing the filibuster really a sensible option? The idea of the minority making a stand against the majority is surely at the very heart of the Senate, which after all was conceived in terms of its structure as a bulwark against the populist House of Representatives. This is nowhere more obvious than in its makeup, which is a living embodiment of the minority over the majority ethic: whereas the House elects its representatives from each state based on that state’s population, the Senate takes two senators from each state regardless of the amount of people who live there. More pressingly, there is something timeless and essential about the ability, if only temporarily, for the single minority to make a stand against the merciless march of the majority. Governments, even those elected in the most transparent of ways, can still go on to make some horrendous mistakes. Even if their attempt is unsuccessful, it is still valuable to have a way for a senator to speak up about the mistake in an unequivocal and vocal fashion. And it must be noted that 60 votes to end the filibuster is hardly an insurmountable obstacle; at the very least it is a huge improvement over the 67 (two thirds majority) required before the reforms of 1975.

The question becomes, therefore, whether there is a way to reform the filibuster so as to keep a potentially vital check on the majority while at the same time tackling its anti-majoritarian, anti-democratic connotations and its cynical use as a standard political weapon.

It’s not at all certain that such a thing is possible. But I’m willing to take a risk on one, blindingly obvious requirement: that any senator who wishes to filibuster… is actually made to filibuster. This would instantly solve both the problems I mentioned above. Tackling first the problem of its cynical, repetitive use, if Senators actually had to go through the motions of  a proper, public, filibuster, then we would see its return to very much a tool of last resort. After all, a proper filibuster – one where you spend hours in the Senate, in front of the C-Span cameras, as the media breathlessly covers hour by hour this made-for-the-news-cycle event – is not a thing to be taken lightly. It could end up coming back to haunt you in your opponent’s campaign commercials. If done properly, it could either be the beginning or end of your career. If done against a popular bill created by a popular president, it might well be the end. If you want to get an image in your head of the kind of thing I’m talking about, check out the  West Wing episode “The Stackhouse Filibuster” where an elderly but stubborn senator takes to the Senate floor for a physically demanding marathon filibuster, eventually earning the respect of the initially irate Bartlett administration.

Whether this requirement would have changed the outcome of the current situation re. the Senate Stimulus Bill is up for debate. However, I find it hard to imagine that, if a conservative Republican was forced to actually filibuster against a popular bill aimed at saving our economy, then moderate Republicans would refuse to vote to end the filibuster, given the risk that would come with associating themselves with such a (presumably) unpopular move.  In any case, as I said earlier, we are talking long term principles here not transient political concerns.

Moving on to the second problem – the anti-democratic, anti-majoritarian nature of the filibuster – I would argue that forcing a senator to actually properly and publicly filibuster resolves this conflict with democratic principles. An actual filibuster creates a public debate. And public feeling is likely to be decisive. If the senator can convince the public that his cause is right then his filibuster might achieve its goal, but if the public takes umbrage to his obstructionism then the Senate would no doubt take note and find enough votes for cloture. This kind of substantive dialogue would actually be a boon to democracy, not a threat to it. Democracy and the voice of the majority work in different ways. It is not just the ability to vote for officials that measures a country’s democracy, it is the quality of the debate that ensues after their election and the ability of any elected official to participate in it. After all, the hypothetical filibusterer is an elected representative of the United States Senate; he’s hardly a tyrannous villain come to pull the voter’s rug out from under them.

Of course, I could be wrong. Maybe my suggestion would do nothing to solve the problems inherent in the filibuster, which are very real. Maybe the only option is to jettison this strange rule which has somehow side-stepped into Washington mythology.  But the anti-realpolitik romantic within me takes heart from the idea of maintaining a means by which the principled minority can make a last stand against the might of the majority. In this case, as is often the way, reform is better than outright abolition. The filibuster must die… Long live the filibuster