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It is a sham that can be ended any time.
Watching Chris Bowers' Daily Kos postings on filibuster reform, it is depressing and sad seeing how many are still opposed to ending the filibuster. Broadly speaking, the netroots has watched four years of pervasive and systemic minority obstruction in the Senate which has served to significantly weaken any progressive governance. There has been a large amount of analysis in the netroots on this, with a broad consensus that the price for minority obstructionism is going to be paid for the majority whom the country blames for any and all failures to address their problems. A number of polls confirm the public neither knows nor cares about Senate rules, and are only dimly and occasionally aware of Republican tactics in this regard.
The most frequent progressive refrain to defend the filibuster is the old standby: "Well what if the Republicans take over? Won't it be nice to be able to stop them privatizing Social Security/reinstituting slavery/eating kittens?" My sense is that this viewpoint is on the upswing compared roughly and unscientifically to how often I would see this view in an anti-filibuster piece from 2008 or 2009. That's somewhat understandable. With Democratic fortunes on the downswing, it is natural to fear what Republicans would do if they got the governing triple-crown. They are dominated by awful people with frightening agendas. It's sensible to want to cling to anything which might avert the worst of this.
The filibuster will not achieve that aim. The filibuster is unlikely to serve any useful purpose in preventing anything substantial the Republicans might attempt. This isn't for the "Democrats are too weak to use the filibuster" reason (thought that is a problem), the deeper issue here is that the "Nuclear Option" fracas of 2005 proved that the filibuster is Tinkerbell; a fairtale. It only lives so long as 51 Senators keep clapping for it. The reason to get rid of the filibuster is that the Republicans will not hesitate to eliminate it if and when it suits them from the majority, so relying on it to stop anything really bad from happening is deluded wishful thinking. Besides, the way to head off those Republican majorities is to govern better and that cannot happen with the filibuster.
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| If you are hazy on what happened in 2005, in simple terms the Republicans, confronted with the smallest form of minority obstruction by the Democrats, exposed the Senate pretense of a two-thirds majority to change the rules as the mere fiction it always was. The US Constitution grants the houses of Congress the right to decide their own rules. This isn't thought to be reviewable in any Court. And in a legislative body, there is no inherent mechanism to avoid simple majority rule when you come right down to it. That's really what the "nuclear option" is. The idea of challenging the filibuster as "unconstitutional" is just a pretext for a simple majority to rule the chamber unfettered.
After all, if the Nuclear Option can be used to rule filibusters unconstitutional, why can't it be used on any other rule that the majority finds is constraining them from something they want to do? Much the same can be said for the idea of changing the rules on the first day of a new Congress. The Senate rules are written as if the Senate is a "continuing" body, and the rules are permanent from one congress to the next, until changed by a process set within the rules. Again, if the majority really doesn't like the two-thirds requirement to change the rules, what stops them from using the nuclear option to declare that rule unconstitutional?
The 2005 Republican scheme went even further in naked display of power with the idea that they could declare only Judicial filibusters unconstitutional, while leaving other filibusters in place. That creative notion was pure invention of convenience, as Republicans knew how useful the filibuster is for them, and of course many individual Republican Senators in particular like having the hold to extract booty out of the Executive branch at any time, whether in the majority or not.
That the Gang of 14 arrived to save the filibuster changes nothing. It is no coincidence that the moderates came together then, as they are the ones who gain the most from the existence of the filibuster. It helps ensure their votes are always needed for legislation and allows them to demand concessions they could otherwise not expect. The naked self interest of the Democrats in the Gang is shown in that they "won" the preservation of the filibuster by caving in on Bush's odious nominees and setting the bar for future judicial filibusters impossibly high. This was a worse outcome than the Nuclear Option, which at least would have been more honest (at least then, Democrats would have borne no shame for failing to filibuster Alito).
This is the real reason not to save the filibuster. In any scenario where negative public opinion is not sufficient to prevent the repeal or other harm to Social Security, Medicare or any other program you cherish, the filibuster won't save it either. Even if you have 41 Bernie Sanders clones willing to actually filibuster a bill repealing a major welfare state item or cherished civil right, Republicans will pay whatever small public opinion price it costs to end the filibuster in order to do that.
The same goes for any proposal to modify the filibuster to "make them talk" or whatever. If it ever hampers the Republicans from doing something they really want to do, it will be ruled unconstitutional too. If you believe the Senate should have some mechanism for minority obstruction, you need to have it entrenched in the Constitution because otherwise it will only survive while it is convenient for the majority of Senators to keep it.
You want more progressive governance? As never before, this is the time to stop clapping and let Tinkerbell die. Tell the Senate to stop clapping. |
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