libertopia

If the Senate goes nuclear...

[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
US Constitution Article II, Section 2, second paragraph

To prevent a hand-full of Bush’s nominees to Federal Courts, Senate Democrats have availed them selves of the time honored parliamentary obstruction tactic known as filibuster. Which, of course, is the extension of debate for the purpose of delaying or preventing a floor vote. This has enraged Republicans and ostensibly has galvanized conservatives as well as liberals. The Republicans argue that Bush ought to be able to appoint any Judge he deems fit. The Democrats counter that the select few nominees in question are “out of the main stream” and would likely seek to overturn Roe v. Wade. The truth may well be somewhere in the middle, as politicians of all stripes are prone to use hyperbole.

An interesting twist in the story is that noted liberal Matthew Yglesias, on his "reality based weblog", has expressed opposition to the use of filibuster.

What I think is important here is that there's a basic asymmetry between liberal and conservative legislative initiatives. There are a couple of different ways to frame this asymmetry depending on how generous to the right you want to be. The unkind characterization is that since liberals try to put good policy ideas on the table, once they're in place, people like them a lot, so they're very hard to get rid of. Kinder to conservatives would be the observation that big progressive measures (Social Security, Medicare, Civil Rights, etc.) create and empower large political coalitions to support them. Either way, the point I would make is that even during an era when liberals have been astoundingly bad at winning elections, it hasn't proven especially difficult to defend the key elements of the New Deal / Great Society settlement.

What has been hard is getting any new shit passed. Labor law reform, health care reform, etc. But if that stuff did get passed, it would be very hard to repeal it. Republicans no this perfectly well with regard to health care -- once universal coverage comes in, it's not going away short of a nuclear war. Robustly pro-union governance will create stronger unions which will make it very hard to mobilize anti-union politics in the future.
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What the filibuster lets the GOP do, by contrast, is impede popular structural reforms of American social and economic life that, though controversial at the time (Social Security, Civil Rights) would, if implemented, rapidly become popular unrepealable measures. Ergo, ditch the filibuster.

To me, this seems to be the logical extension ot the "nuclear option", a rule change that would allow a simple majority to move for a vote. What I don’t understand is why Republicans fail to see this. Could it be that the benefits of expediency outweigh the cost of future fast-track liberal legislation? Conservatives would be well served by taking a cue from their opponents. Mark Schmitt, of the Decembrist points to history:

…procedural reform in the 1940s, 50s and 60s was built on the assumption that if the rules were different the results would change. Reducing the number of votes needed to end a filibuster from 66 to 60, breaking the "committee system" by which senile Southerners held total power over what was considered, and making votes public were expected to lead not only to passage of civil rights legislation, but to a much more activist, presidential government. Reformers assumed that they would help a strong president, who was likely to be liberal, set the congressional agenda.

As Mark Twain said, "History doesn't repeat itself, but it rhymes." Would-be nuclear politicists ought to remember that. The Founders’ intent was to prevent a simple majority from easily saddling the nation with onerous laws. As Yglesias elucidated, laws are rarely, if ever, repealed. This is why bills (and nominees) should meet the highest of standards before being given the stamp of approval. Sure, some good legislation and able Judges may well not go forward because of filibuster. More importantly, we will all be spared the negative consequences of "extreme civil servants" (on either side) and atrocious regulations, be they socialistic or authoritarian. In fact, the legislative process and Presidential appointments were designed with built-in obstacles for good reason. If the party in power (whichever it may be in the future) is able to govern unopposed, Constitutional checks are rendered toothless. Yet again, a liberal Democrat, Kevin Drum of Washington Monthly, states the obvious facts that are eluding Republicans:

On a broader note, it's correct to point out that the United States government was set up by the founders to be inherently conservative, and the governance of the Senate has made it even more so. Passing a law requires a majority in one house, a supermajority in another house, consent of the president, and consent by the Supreme Court. Any of those four institutions can stop proposed legislation dead.

posted by Robert @ Friday, April 08, 2005