Filibuster Buster Busting

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Matt Yglesias has long argued for eliminating the filibuster.  It’s come up again in the context of the stimulus bill.  (Edit: In fact, he posted about it yet again while I was writing this post.)  He says it’s anti-democratic, and the American system of government has enough other veto points on legislation to keep either party from running away too far with the country.  To his credit, he was saying this even back when Bill Frist and the GOP were threatening the “nuclear option” on Democratic filibusters of Bush judicial nominees.  (I’m too lazy to go back that far to look up the links;  the search function at his site is atrocious.)  Yglesias is bipartisan in his filibuster busting.

But he’s bipartisanly wrong.

Yglesias’s filibuster hate, it seems to me, is part of his equally long-standing preference for parliamentary systems of government over presidential ones, like ours; most recently expressed on his return from a trip to Spain:  “For the moment let me just note that in Spain they have this interesting political system (‘democracy’) wherein if your party loses the election, the other party gets to make policy until they lose an election.”

Note the same comparative perspective in his argument against the filibuster:

Majority voting works fine for democracies around the world, and the need for legislation to pass through two separately elected houses of Congress and be signed into law by the president still gives our government more chances to veto objectionable bills than most other countries allow for.

That’s one of the problems with his argument.  It assumes a degree of similarity between America and other democracies — and he’s really just referring to European democracies — that I’m not at all sure exists.  European countries are: a) much smaller than the U.S., both geographically and demographically; b) much less internally diverse than the U.S.; and c) lacking the sense Americans have that, when push comes to shove, armed insurrection is not just an option, but precisely the sort of thing We do.  (That is, Americans think of armed opposition to a government perceived as oppressive as the American thing to do; to not do so is unAmerican, unpatriotic.  It’s not my impression that, for example, the Swiss think of it as the Swiss thing to do, or the Dutch the Dutch thing to do.)

We’re a big country, in every sense of the term.  Way big.  As the Framers understood, a country this big and diverse presents some special problems for democratic governance.  James Madison was able to turn many of those problems on their heads and make strengths of them; he was a genius that way.  Some problems, however, remained.  Among them is how to prevent political disagreements among the widely disparate, geographically scattered interests and ways of life from becoming civil unrest, even war.  A country this big and diverse generates a lot of centrifugal forces; those forces have to be contained to keep it from coming apart.

Although the Framers certainly didn’t create the senate’s filibuster rule, it does, I think, help contain our nation’s centrifugal forces.  On controversial legislation — that is, legislation that our disparate, geographically scattered interests strongly disagree on — the filibuster requires the majority interest(s) to compromise enough to bring some of the country’s other interests along.  (In parliamentary systems, the common necessity for forming coalition governments serves a similar purpose.)

Is that anti-democratic?  Yes.  Does that mean it’s bad?  No.

The Bill of Rights is, in that sense, about as anti-democratic as a thing can get.  It says to majorities, “Sorry.  On these things, you don’t get to make policy.”  As the 1st amendment asserts, on these things “Congress shall make no law.”  Why?  Because we’ve learned the lesson of history that nations that don’t allow individual liberty on these things descend into civil war over them.

I submit that, in a nation as large and diverse as ours, the same principle operates on levels between the individual and the whole, and on issues less fundamental than those addressed in the Bill of Rights.  Those issues are the issues that arise in highly controversial legislation.  That’s sort of the definition of controversial legislation: something the majority really wants, but a minority deeply opposes.  When the country is closely divided and feelings on all sides run very deep, I suggest it’s in the nation’s long-term interests if the majority has to compromise enough to get some of the minority to come along.  The filibuster rule does that.

I think the real problem we’re seeing is not the existence of the filibuster rule, but the abuse of it.

Because they are for highly controversial legislation, filibusters should be rare.  Until very, very recently — basically, the 1990s — they were.  Yglesias has the dates and numbers.  In the last congress, the GOP minority set a new record for use of the filibuster, and by a wide margin.

While majorities can’t simply run roughshod over minorities if our nation is to hold together, neither can minorities — Republican or Democratic — simply ignore the fact that most people don’t agree with their policies and don’t want them implemented.  They should buck the national will and invoke the filibuster only when they are certain the majority policy will disastrously wreck the country.

Unfortunately, that’s not the case.  Both parties — but, let’s face it, the GOP leads the way by far — have adopted political fundamentalism.  They are absolutely certain they are 100% right about everything, and anything the other side proposes will disastrously wreck the country.  So we get filibuster after filibuster after filibuster.  (Another contributing factor, I think, is the current Democratic majority leader’s unwillingness to force the minority to actually carry out their filibusters.)

The solution isn’t to eliminate the filibuster rule.  It’s to amend it to set a limit on how many times it can be used in a session.

The analog is the NFL challenge rule.  Suppose the rule set no limit on the number of calls the coaches can challenge.  How long do you think it would be before every game lasted 11 hours because every other play was challenged?  That’s what we have now in the senate.  The minority can filibuster all the time, so it does.

Because NFL coaches get only a limited number of challenges, they have to use them judiciously.  They challenge only those calls that are both really important, and really close.  That’s how the filibuster should work.  Limit the number of times it can be used in a session (or maybe it should be a percentage of votes, rather than an absolute number), and the minority will suddenly discover the importance of being judicious.  They’ll use it only on the votes that are really important, and really close.  Which is what they ought to be doing, anyway.

(Apologies for filibustering this post.)

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3 Responses to “Filibuster Buster Busting”

  1. urbino Says:

    One last comment regarding this part of Yglesias’s argument: “the American system of government has enough other veto points on legislation to keep either party from running away too far with the country.”

    I suggest he re-examine the first 6 years of the Bush administration.

  2. Welcome to the desert of the real. « Hungry Hungry Hippos Says:

    […] George Packer catches a small, fleeting glimpse of the problem I talked about most recently in my filibuster post, but have talked about before.  Quoth George: The landscape of the future seems more […]

  3. System vs. People « Hungry Hungry Hippos Says:

    […] pretty sure we don’t want to repeat either of the first 2 methods.  But tinkering with the rules in the ways I’ve seen Klein, Yglesias, Hendrik Hertzberg, and others advocate will, I […]

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