Perhaps the biggest obstacle to demolishing the filibuster is the cynicism and defeatism of those who assume this can't be done. The obstacles are fearsome, but they cannot be worse than the obstacles faced by the generations of activists who called for, and eventually won, direct citizen election of US Senators via the 17th Amendment to the US Constitution, ratified April 1913. I mentioned this in comments to a recent diary on the filibuster by Chris, and there was some objection to the comparability of the fight for the 17th to the filibuster, so I wanted to elaborate on the magnitude of this victory to make clear that yes, bigger and more difficult Senate reforms have been done than ending the filibuster.
No mistake about it, the 17th Amendment was an epic battle, one that began as early as 1826 (when the first amendment attempt appears in Congress). After its passage, Wilson's Secretary of State, William Jennings Bryan described it superlatively as the greatest reform attained in over a century. It's hard to agree with that, given the importance of the 13th, 14th and 15th Amendments, but does make it clear that a major contemporary populist figure viewed this as a big victory.
Consider the situation prior to its passage: The amendment to require Senators to face election must get passed by two-thirds of the Senate, a chamber of men selected, not elected, by the legislatures of their home States (sometimes with only plurality support). After this, three-quarters of the State legislatures would then have to ratify a measure decreasing their power and influence over the more powerful chamber in the national government. All the built-in incentives were opposed to this.
Here's how the New York times described the issue, the day after the 17th Amendment passed Congress in 1912 (transcribed from PDF at link by me, errors mostly mine):
Part I of this series examined the nature of paired vetoes, which turns out to favour conservative interests despite theoretical equality.
Part II looked at the specifically distinct powers of each chamber and found that the Senate ones were much more relevant and independently exercisable.
Part III looks at how that institutional imbalance between the Houses actually affects the institutional balance between the Branches with some examples.
In recent decades, as the Executive branch has grown in scope and power relative to the Legislative, the Senate's powers have only served to magnify its advantage over the House. The more powerful the Executive becomes, the more the Senate can use its leverage to demand concessions in which the other half of Congress has no input.
It is a form of negative feedback loop. The Executive is more powerful than the Legislative, and can use that influence to convince the Senate to allow it to accrue even more power, which the Senate agrees to in exchange for favours the Executive can dole out, and because it still has considerable leverage over the Executive, so fears less the loss of other powers. Rinse, repeat.
Congress could roll back the Executive's powers, except that half of Congress has little interest in doing so, since they actually can gain power more easily by conceding Congress' formal influence in exchange for informal power, which they don't need to share with the House.
Part I argued that though the legislative veto powers of each chamber are equal, in effect this benefits conservative interests more often. This piece examines the asymmetrical powers of each chamber to demonstrate that the two Chambers are not remotely equal, because the Senate is plainly more powerful. This is no longer in the Anatole France sense of an unequal effect of a non-discriminating rule, this is about giving the Senate a better hand of cards to play with in every game.
I hope it is evident from reason and authority, that in the constitution of the senate there is much cunning and little wisdom; that we have much to fear from it, and little to hope, and then it must necessarily produce a baneful aristocracy, by which the democratic rights of the people will be overwhelmed.
- Anti-Federalist #64
It's encouraging to see the recent attention to the filibuster, and a possibly growing liberal consensus that the filibuster is generally a bad thing, and should be curtailed or eliminated. I'm going to continue a very old series of mine, "Unstacking the Deck" which began with my very first front page post at Open Left, to discuss the broken institutional balance of the US government. The filibuster is certainly a big factor in that, but it's worth going into some detail of the underlying power disparity which the filibuster only exacerbates.
The chatter about a compromise bill on FISA to replace the expired PAA got louder last week:
The new Republican proposal_ which Sen. Kit Bond of Missouri said is backed by the White House and intelligence agencies, would allow the FISA court to decide. It would require the attorney general to certify that the companies acted lawfully and at the request of the president.
The court would be allowed to read classified warrantless wiretapping documents, and the plaintiffs could file their complaints with the court. The court could dismiss the lawsuits if it finds that supported by "a preponderance of the evidence."
There's little reason to trust any "compromise" offered by Republicans. The only thing they typically compromise on is the size of the fig-leaf they offer to Democrats to hide their shame in supporting whatever is being offered. That said, it is worth looking in particular why this offer is utterly unacceptable. It comes down to the Foreign Intelligence Surveillance Court being, in essence, a movement conservative Star Chamber.
Part 1 - The Case for some kind of systemic reform
(And now a real post to balance the navel gazing last one...)
Continuing this series, I'm going to cut to the chase and get started on unstacking the media.
Obviously this is a topic of huge blogospheric interest (probably not just progressive blogs either), and I won't pretend my views have any special authority, but I do want to make a couple points I feel are missing from the general discussion.
First let me make a couple general points I'm not going to try and prove extensively (this is a blog post, not a journal article):
1) It's corporate and right leaning/biased at least partly as a result
2) Even aside from the explicit right wing bias, it's generally not that good
3) Any improvement over 2004 or 2000 is incremental at best, and in some respects things are even worse
In my first entry, I made a brief case for the value of norms and traditions in reforming formal institutions. In the case of the run-away Presidency, this is perhaps the most vital weapon.
I'm going to add something to that, in terms of the power of norms. One of the biggest checks on a runaway executive is the two-term limit. What's interesting is that for almost 200 years, the limit of two terms was purely normative, and only the extraordinarily popular FDR had the temerity to successfully broach it, and even then, after he died, the violation of this norm was problematic enough to pass a constitutional amendment preventing anyone else from doing as Roosevelt did (Unsurprisingly but still ironically it was a Republican congress that first passed the 22nd Amendment). So in terms of limiting the executive, my proposal is to change the norms, then once some President overreaches, that will trigger a backlash sufficient to end the practice in law or even the constitution. One nice thing the founders did get right is that the President has no formal say over constitutional amendments. That's between Congress and the States.
So the case I'm trying to make here is that the very institution of the Presidency is one which is anti-democratic and anti-progressive. The inexorable growth in the powers and prestige of the Executive branch is naturally of great concern, but I'm going to take issue with even some of the explicitly constitutional powers of the office, because I think they are a large part of why and how this branch has succeeded in beating down the legislative one.
First, let me thank Chris for opening the floor and allowing me to write here. Openleft continually impresses me for its ability to take the initiative on progressive causes, and in actually getting things done. After following Chris and Matt here from MyDD, it quickly reached my "daily must read" list so I'm honoured to be able to contribute.
Ok, so what deck must we "unstack"? In my view, the deck is the various institutions of the US government and the organs governing society itself. This will be the first of a few diaries on a medium and long term vision for progressive reform of government.
Looking at the sweep of US history, what strikes me is how overwhelming the progressive mandate needs to be in order to get anything substantial done. The New Deal required historic majorities in congress and even an attempt to stack the Supreme Court by FDR to survive the entrenched resistance inherent in the US system. Truman couldn't achieve UHC in an era where other industrialized nations were doing so, and it basically took JFK's assassination to ram civil rights legislation through the Senate over the persistent filibuster of the racist Dixiecrats. In between all these flashes of progressive revolution, we have long periods of rightward drift. So if we are sitting at the cusp of a new progressive governing era (as we hope and see some evidence for) let's put some thought into leaving those that follow in better stead to effect progressive change in their time. It just shouldn't be this hard to govern progressively.
So let's dream big for a minute, and think about what needs to happen to realign the steering of the automobile public to correct that rightward bias.
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