The Misguided Anti-Filibuster Crusade of Progressives

When it comes to ending the filibuster, Ezra Klein over at the Washington Post has discovered his inner constitutionalist. Klein and his fellow liberals have been kvetching about the filibuster ever since it forced Democrats to engage in inelegant procedural calisthenics to pass ObamaCare. Thanks to it, 41 united Republicans prevented 59 Democrats from bringing the bill to the Senate floor for a straight up or down vote, forcing Democrats to go “nuclear.” This unspeakable travesty has traumatized Democrats and they’ve been champing at the bit ever since to remove this dangerous tool from the hands of evil, obstructionist Republicans.

Here’s what Michael Conan of the New America Foundation said at the peak of the ObamaCare debate in November 2009:

Reforming the way Washington operates is hardly the sexiest of topics, but from a policy and even a political perspective, there are few more important issues on which Democrats should be focusing their energy. Quite simply, the filibuster has become the single tool that is undercutting everything Obama and the Democrats were elected to achieve.

Both parties have historically used the filibuster, but its overuse by modern Republicans stands at outrageous proportions.

And to help Dems make their case for abolishing the filibuster, Klein is arguing that not only is the filibuster not in the constitution, it is actually unconstitutional.

Klein relies for his analysis on one Emmet Bondurant whom he describes as a “go-to lawyer when a business-person can’t afford to lose a lawsuit.” Klein in no doubt trumpeting Bondurant’s pro-business bona fides to imply that he is a conservative and not Klein’s bedfellow. However, trying to establish credibility by disassociation sounds fishy to me given that Bondurant has launched a lawsuit to get the Supreme Court to scrap the filibuster.

In any case, using Bondurant, Klein claims that the filibuster is the product of a historical accident. It came into existence in 1806 when (after killing Alexander Hamilton in a duel) Aaron Burr killed something called the “previous question” motion as part of his noble effort to cleanup redundant laws from the books. That was the motion that senators used to end debate. Burr, in his infinite (un)wisdom, argued that Senators were all gentlemen so they knew when to stop talking and so there was no point in having such a rule in place.

No one exploited the loophole Burr created for three decades. Even subsequently, it was an annoyance only occasionally deployed. But now Republicans are using it to effectively require a supermajority of 60 Senators to pass all major legislations, something that the Founders actively opposed, Klein claims:

 The framers debated requiring a supermajority in Congress to pass anything. But they rejected that idea.

In Federalist 22, Alexander Hamilton savaged the idea of a supermajority Congress, writing that “its real operation is to embarrass the administration, to destroy the energy of government and to substitute the pleasure, caprice or artifices of an insignificant, turbulent or corrupt junta, to the regular deliberations and decisions of a respectable majority.”

In Federalist 58, James Madison wasn’t much kinder to the concept. “In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. It would be no longer the majority that would rule; the power would be transferred to the minority.”

In the end, the Constitution prescribed six instances in which Congress would require more than a majority vote: impeaching the president, expelling members, overriding a presidential veto of a bill or order, ratifying treaties and amending the Constitution. And as Bondurant writes, “The Framers were aware of the established rule of construction, expressio unius est exclusio alterius, and that by adopting these six exceptions to the principle of majority rule, they were excluding other exceptions.” By contrast, in the Bill of Rights, the Founders were careful to state that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

What choice does a gal have when Klein quotes Hamilton and Madison but to quote…..Harry Reid, the Democratic Speaker of the Senate? Likening filibuster reform to opening a “Pandora’s Box” in his 2008 book The Good Fight, Reid wrote:

It was just a matter of time before a Senate leader who couldn’t get his way on something moved to eliminate the filibuster for regular business…And that, simply put, would be the end of the United States Senate … A filibuster is the minority’s way of not allowing the majority to shut off debate, and without robust debate, the Senate is crippled.

Amen.

Reid has since changed his tune and is saying that he is now opposed to the filibuster because of continuous Republican abuse and is even contemplating legislation to scrap it. So crippling the Senate for future generations is better than letting Republicans raise a little hell now and then? How is that for enlightened thinking?

Moving on.

Klein might well be right that a filibuster contradicts the views of the Founders (although, out of curiosity, I’d like someone to tell me what the more libertarian-minded Thomas Jefferson, had to say about it). But scrapping the filibuster won’t be good for other things that the Founders seemed to care about more deeply than majoritarian rule such as: individual liberty, limited government and checks and balances between various branches of government (not just the balance-of-power between large and small states that Klein alludes to).

There is nothing sacred about the filibuster, or any procedural rule for that matter, of course. Such rules are not ends in themselves. They are means to ends. And so the question for partisans of limited government is does the filibuster help or hurt their goal?

If, say, Democrats were trying to scrap the Patriot Act against Republican wishes, then Republicans filibuster would be bad. Conversely, if Republicans wanted to deregulate the airline industry or cut entitlement spending against Democratic wishes, then a Democratic filibuster would be bad.

But by and large those are not the kinds of issues that preoccupy our elected leaders. Neither party’s politicos are much inclined to sit around in their august offices thinking up of creative ways to cut government and give up their own powers. To the contrary. The vast bulk of Congressional business involves expanding government. In such circumstances, odds are, every time the opposition, whether Democratic or Republican, uses the filibuster, it will end up doing more good than harm.

Democrats are pissed off because filibuster rules have prevented them from enacting their grand plans even when they controlled all the branches of government. But for limited government types that precisely is its beauty.

What’s more, ending the filibuster will also mean that a president who controls Congress will have little incentive to reach out to his political opponents.  This might be fine with Democrats so long as President Obama is in office. But do they really want a President Romney with the help of 51 Senate Republicans (not an impossibility in the next election) saying “bug off” to Democrats in order to, say, raise middle classes taxes to make the American military so powerful that “no one will ever think of challenging us?”

As they say, be careful what you wish for….

(Actually, I’ll wager that Democrats will drop their anti-filibuster crusade the minute President Obama hops onto the helicopter for Chicago from the White House lawn. They are only revving up it up now just in case he doesn’t and they keep control of the Senate.)

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  • ||

    Man dies during lap dance.

  • Scruffy Nerfherder||

    Robert Gene White was face-deep in pelvic gyrations when it came time to pay the girls and he was found unresponsive

    Even Whoopi would call that rape

  • ||

    Even Whoopi would call that rape

    But not rape rape. In any case, it looks like he's getting away with it this time.

  • Mr. FIFY||

    Maybe he microaggressed the lap dancers?

  • ||

    This seems vaguely akin to the old Monty Python skit about condemned prisoners choosing their method of execution. And it happened in Texas! I smell an awesome policy change....

  • Scruffy Nerfherder||

    There's nothing really wrong with the filibuster or the nuclear option. It is a red herring that is designed to hide the greater truth.

    The only thing Democrats are pissed about is that they cannot avoid responsibility for ObamaCare or even share it with the Republicans under the normal guise of bipartisanship. Because they used the nuclear option, they and they alone hold responsibility for it. And the last thing a professional politician wants is to be held responsible for something, particularly something that probably won't turn out well in the long run.

    Congressional antics over the last 40 years have been designed to shed responsibility by turning authority over to regulatory agencies and the executive. Congress wants to claim credit by empowering these agencies but at the same time wants to take advantage of that middleman by having someone to blame when it goes wrong. In the case of Obamacare, the Democrats cannot avoid it.

    Besides which, since the nuclear option worked for them in Obamacare, why shouldn't they use it again? There's nothing really stopping them other than their fear of being held responsible for the outcome.

  • ¿Ex Nihilo?||

    ...why shouldn't they use it again? asked

    ...being held responsible for the outcome. answered

    There is nothing a politician hates more than being held responsible for something that goes wrong, or is perceived as going wrong.

  • ||

    There is nothing a politician hates more than being held responsible for something that goes wrong . . .

    Which I've never understood. I mean, isn't that every powermonger's wet dream? To be able to implement any policy he or she wishes, and no matter how ruinous it is, knowing there will never be any punishment meted out, other than perhaps on Election Day?

  • ||

    It's the Election Day they hate; to them it's like a herpes flare up.

  • ¿Ex Nihilo?||

    ⇑ THIS ⇑

    If a challenger can link a politicians vote to a policy that went wrong, then he might lose. It is that small chance of loss they hate. With a passion.

  • ||

    It's the Election Day they hate; to them it's like a herpes flare up.

    I think the flare up is equally analogous to whenever Congress is in session. Everytime they pass something, we all get fucked, and it burns for a long time afterward.

  • sarcasmic||

    "When we do it it's speaking truth to power, when Republicans do it it's obstructionism!"

  • Night Elf Mohawk||

    Champing at the bit.

  • ||

    I told you all that Burr guy was an asshole.

  • DJF||

    I would think that its hard to argue that its unconstitutional when the constitution clearly says that both houses by set the rules of its proceedings.

    “Article 1, Section 5 Each House may determine the Rules of its Proceedings”

  • robc||

    ^^^this

  • JW||

    "Well, duh, we're not the really old parts. Just the stuff from the last couple of years."

  • JW||

    Jeez...

    we're not talking about the really old parts

  • Emmerson Biggins||

    That's because you don't know how to think like a moron.

  • VG Zaytsev||

    It's going to be funny as hell to watch Ezra write about how important the filibuster is to our system of government next year when the Rs have 55 senators.

  • Brett L||

    Yeah. I would slow play this one until after election day were I them.

  • ||

    Why wait on outing his hackdom when we have this:

    http://www.youtube.com/watch?v=wgeHh_e1KKE

  • RPR2||

    It just seems out of character for Ezra "Born Yesterday" Klein.

  • ||

    Elections only have consequences when the right people win. If the wrong people win they're hostage-taking terrorists engaged in active sabotage for political gamesmanship.

  • Loki||

    What they're really pissed about is that unlike GWB's and the R's expansions of government (think Medicare part D, No Child Left Behind, the PATRIOT Act), they "crossed the aisle" to make those bipartisan clusterfucks. They're just pissed that the R's didn't give them the same courtesy on Obamacare, which means they have to own it now.

    I also suspect that once Obama is out of the White House they'll suddenly stop worrying and learn to love the filibuster again. Also, dissent will suddenly become "the highest form of patriotism" again as opposed to "hostage taking", etc.

    God I hate politicians.

  • Mr. FIFY||

    I've said it more than once:

    When Team Red gets all the levers of power, Team Blue will be more than happy to obstruct them at every turn.

    As it should be. The less these fuckers get done, the better off we are.

  • R C Dean||

    Haven't researched it, blah blah, but I thought the Constitutional authority for the filibuster was pretty clear: each house can adopt whatever rules it wants to govern its proceedings.

    I don't think SCOTUS will touch this one, not even to give it a hearing.

    And, of course, the Dems would be idiots, especially with the loss of the Senate a better than even chance in a few months, to permanently kill the filibuster. But, progs and statists generally believe they are immune to the Iron Laws, including:

    Me today, you tomorrow.

  • Lord Humungus||

    hmmm... After the '04 election, I somehow remember the Democrats using the filibuster several times, with much worship of minority party rights, etc...

    ?

  • Mr. FIFY||

    It's only okay when The Team Out of Power does it.

  • Nick M||

    I probably shouldn't be surprised, but I am continually astounded at how short sighted all of these partisans can be (or maybe it's just that the public and the media buys it??). When Bush is passing executive orders and signing statements he's abusing executive power, but when Obama does it it's because he has to to overcome obstructionist Republicans. Now it's the senate. Swap the teams, rinse, repeat.

    As barfman would say, *barf*

  • ||

    No one knows what is the constitution...it was written 500 years ago...well except that part about filibusters, that part is legible.

  • ||

    Ezra Klein video for reference:

    http://www.youtube.com/watch?v=wgeHh_e1KKE

    No idea how Dalmia failed to link this.

  • NL_||

    Expressio unius doesn't apply in this case because the Constitution gave us a clear rule. We only use rules of construction where the language is otherwise unclear.

    Each house sets its own rules under Article 1, Section 5. There's no need to use rules of construction to divine what the framers might have intended, because they explicitly left the details of legislative rules to future members of Congress.

    Also, the presentment clause in Article 1, Section 7 only says that a bill will have passed without specifying a majority or other vote threshold. If they wanted to make a strong presumption of simple-majority voting in the Congress, they could've made the presentment clause more specific and then used other sections to make specific exemptions for use of supermajority voting. They chose not to do that, further suggesting they wanted to let each house set its own rules in this area.

    The best you can say for this effort is that maybe the framers would've preferred more majoritarianism and less obstruction. But their mild preferences are hardly binding on us today. Especially where we have a good sense that requiring 60% to relent to legislation might be a useful trick to block a few of the worst ideas.

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