Powwow About the Filibuster
For some time now discussions have been going on in the blogosphere about the filibuster and whether or not to get rid of it. Nowhere have these discussions been more frequent or intense than at Firedog Lake, where you’ll find them here, here, here, here, and here. Over time, two positions on what to do about the filibuster have developed. One held by many at FDL, including myself, is that the practice of the filibuster in any form should ended. The second is that the present filibuster procedures should be ended, but that the classical filibuster should be restored because it really would not introduce intolerable delays into the legislative process, and it also would provide a needed focus for open debate in a Congress currently dominated by “ruthless” “top-down” party perspectives.
In the context of a discussion of Jon Walker’s diary against the filibuster this past Wednesday, an exchange developed among Jon, selise, powwow and others expressing the two main views on the filibuster, with powwow condemning “ruthless majority Party control of the chamber" and supporting the classical filibuster as a way to moderate that. In reply, I asked:
What’s wrong with “ruthless” majority party control of the legislature? Isn’t that the way things work in the UK, Canada, Australia, and New Zealand, just to name four other liberal democracies.
powwow replied, and the rest of this diary records much of his reply and my ensuing interleaved comments. Here’s powwow:
What isn’t wrong with “ruthless” top-down Party dominance of our Congress. . . .
My reply: I can’t agree that either Nancy or Harry are “ruthless” and “top-down” or that the Democratic Party has been dominant. Certainly the many months it has taken to get Health Care Reform bills through both Houses belie the ideas that the Democrats have been “top-down,” “ruthless,” or “dominant.” Had they been so, we would have had bills out 6 – 7 months ago. Specific cases where “ruthlessness” was clearly lacking on Pelosi’s part included “stupakification” of the House bill, the overly accommodating way in which she dealt with the House Energy and Commerce Committee and its blue dog and Conservadem members, and also how she deals with Harry and the Senate in a way that may best be described as overly deferential, and at worst as "gutless." On Harry’s side there are so many cases of his accommodating Conservadems, blue dogs, and Republicans in the HCR and stimulus legislative processes, his leaving Joe Lieberman with his committee positions, his focusing the legislative process on the Baucus Caucus, and his failure to manage how Baucus handled that, his failure to use reconciliation, or abandonment of the procedural filibuster as you suggest, or the nuclear option to get what the Democrats want (whatever that is), that your characterization of the process in the Senate as “top down,” “ruthless” and “party dominant” is very, very hard to believe.
I’ll bet most readers of this exchange will consider the process as much more “bottom-up,” “frustratingly dilatory,” and “special interest” rather than “party” dominant. I don’t see strong and tyrannical political parties run by tough leaders here. Instead I see weak parties lacking discipline that are easily penetrated and their agendas and platforms undermined and overwhelmed by special interests and their wants. These days our parties are so weak that they are no longer able to perform their major function, which is to aggregate the many diverse interests in the American political system into broad policies that can help the country to adapt. The filibuster strengthens individual Senators at the expense of strong national parties and plays into this failure of the parties to perform.
. . . when, as now, in the furtherance of Party (and presidential) power for its own sake, a majority Party leadership violates (and, importantly, is permitted by Party members to violate) the separation of powers, and the Party’s adopted Platform (see the “public option”), won’t move legislation to fulfill that Platform, takes orders from the Executive Branch at the expense of the will of the members of the Legislative Branch, conducts business behind closed doors in order to serve Party funders instead of the people, overthrows the established (Democratic-majority) balance of Congressional power created by the voters, by endrunning democratic legislative and committee process to privately ‘do deals’ on an equal footing with the other Party’s leadership, and works to prevent genuine debate and amendment on the floors of Congress to preserve private Party deals – the will of, and self-government by, our representatives be damned??
My reply: Well, I agree with this eloquent statement, but I don’t see how it supports the idea of returning to the classical filibuster, or suggests opposition to getting rid of all filibusters. It seems to me that without filibusters, the majority party would be much less likely to ignore its Party platform or to work on equal terms with the minority party. Also, without the possibility of a filibuster, party discipline would be greater in both Houses of Congress, making both leaders more powerful in enacting legislation that might change the status quo. Both leaders would be more powerful relative to each other, and also relative to the President. Individual members of Congress would be much less powerful. But the parties would be more powerful relative to the interest groups, much of whose power is derived from party divisions in the Congress. So, while I agree with your statement, I don’t see it as supporting your preferred alternative of returning to the classical filibuster.
Next, powwow quoted me:
Isn’t that the way things work in the UK, Canada, Australia, and New Zealand, just to name four other liberal democracies?
And then added:
Apparently not (leaving aside the fact that these are parliamentary democracies, and we are not, as you know but have decried as an obstacle to unfettered majority-Party rule):
The traditional, costly filibuster is both the historical and international norm. Many other legislatures with filibuster rules, such as the United Kingdom and New Zealand, require filibustering members to actually filibuster, rather than merely state their intent to do so.
My reply: While this is true, the filibusters actually allowed are not very costly at all in terms of time cost compared to US filibusters. In most cases, filibusters in other nations may literally last only hours over a single day and rules prevent real frustration of the majority except in very rare cases. We can see this from Wikipedia (pretty good on this topic I think). No other nations accord legislators a power to delay or perhaps even block legislation as great as is inherent in either the current or classical filibusters.
Finally, after brief remarks about how we arrived at the present burdensome 60-vote super-majority needed for getting a vote on legislation, which I agree with, powwow quotes selise approvingly:
“For one thing we don’t need [ruthless majority party control of the legislature] and fighting for it now, instead of using the rules as they currently exist to solve our real problems [is unwise].
My reply: I’m afraid I think ruthless majority party control of the legislature is exactly what we need right now. We need the Democrats who we elected to change the course of the country to have an unambiguous, relatively unfettered and fair opportunity to make the changes they think will work, so we can evaluate the consequences of what they do in the next election.
As it is now, we spend far too much time evaluating process and discussing why it is that the Democrats are not getting results. We theorize about the extent to which they are corrupt, gutless, stupid, malevolent, have too many obstacles imposed by the legislative process, or are just inept. I say let’s just give them all the power they need to get results, and then let’s punish them if they don’t get good ones by throwing them out. This is simple democratic accountability. It’s worked in the major parliamentary democracies, which for the past 40 years have worked much better than our system for most of their people, and I cannot see why you and selise think it rational to want to "fuzz up accountability" by retaining a Senate custom that provides a ready excuse for a party’s failure to perform, especially when the historical record of employment of that custom has been so reprehensible and so contrary to the ends of social and political justice. I say take away that excuse, get rid of an ancient enemy, and make it unambiguous who gets the credit and who gets the blame.