No, Seriously, Get Rid of the Filibuster

Jay Cost has a passionate response to recent liberal criticisms of the filibuster. In his view, it’s a good thing to pass legislation that has broad (and perhaps bipartisan) support, rather than to pass legislation with increasingly partisan “simple majorities.” But there are several little problems with Cost’s argument that need to be pointed out, and I think they add up.

First, perhaps it’s true, as Cost argues, that ideological polarization has led to the increased use of the filibuster, but it is also possible that the existence of the filibuster has enabled ideological polarization, creating a vicious cycle. Senate leaders on both sides have discovered, to put it crudely, that they don’t need to win elections in order to win legislative battles. As long as they man the barricades to preserve 40 safe seats, they can achieve a lot — or, what is the same, prevent the other party from achieving a lot. And those 40 seats, sought for their safeness, are likely to be filled by very partisan, ideological senators.

Second, I’m unconvinced that the filibuster has really led to “moderate policies,” instead of just nonsensical ones. I don’t really understand Cost’s position on this issue: he admits that he finds the compromised Senate health care bill “highly objectionable,” but implies that it’s better than what we would have gotten if the Dems only needed 50 votes. I think that this assumption is quite wrong, and wrong not just from my own liberal perspective but from a “moderate” perspective as well. Sure, you would have gotten a public option if there had been no filibuster. But you might also have gotten more serious attempts at cost-cutting: tough choices of the sort that serious moderates like Cost and Ross Douthat desire, but which stand no chance in the polarized, minority-rule Senate. You would also have avoided the sweetheart deals to “centrist” senators that Republicans have spent the last week decrying.

See, if you have liberal senators cutting deals with center-right senators, or conservative senators cutting deals with center-left senators, what you are likely to get is not moderate legislation — precisely because the parties have become so polarized, and their most extreme members, their Boxer and their DeMints, also have effective veto power. Rather, you will either get the same old “partisan” legislation but with sweetheart deals to bring the centrists on board, or you will get watered-down legislation, catering to the centrists’ overwhelming imperative to extract their pound of flesh from all legislation no matter the policy implications. In the case of the stimulus and health care reform, half a loaf was/is better than no loaf, but that will not always be the case (consider cap-and-trade, for instance). Sometimes a bill that can attract Boxer and Franken, as well as Nelson and Landrieu, just won’t make sense. Ditto if you replace the first two with DeMint and Inhofe.

Third, I just don’t find Cost’s concern about violent policy swings all that convincing. The fact is, if we got rid of the filibuster, it would still take a lot of work, and a lot of electoral success, to swing policy sharply in one direction or the other. Imagine that the Democrats had only 53 seats at the moment, and there was no filibuster, and they passed “extreme” liberal health care legislation. Now imagine that the Republicans win five seats in 2010, take the Senate, and pass narrow, partisan bills to repeal health care reform and privatize Medicare. You’d still have to assume that the House has changed parties too, because Nancy Pelosi’s majority, even if neutered, would never consent to those bills. And you’d never get those bills past the desk of President Obama. So, the extreme changes would have to wait at least until 2012, and we’d have to assume the (I think unlikely) defeat of President Obama. (And all this without considering political culture and the likelihood that many laws, once passed, are not so easily repealed.)

In other words, what Cost forgets is that bills have to get by three different institutional sets of eyes, a fact which, on its own, limits the amount of legislation and, yes, ensur

es consensus. The people decided, over the course of two biennial elections, to put Democrats in charge of the entire federal government. That’s a consensus! Cost’s persistent reference to a “bare majority” passing legislation overlooks the fact that you need a bare majority in effectively three legislative bodies (the executive branch included) and that, per the founders’ wisdom, the members of these bodies have different constituencies, and are elected in different ways and at different times. There are a lot of checks on the passions of bare majorities in the American system. Cost’s fallacy, in understandably pointing to Federalist #10, is that he suggests that because some checks were desired, all checks must be justified. But

we can require varying degrees of political consensus; we don’t have to choose between government-by-filibuster and government-by-faction. By any measure, even without the filibuster, our system would require a substantial degree of consensus. But the filibuster goes too far.

One last thing. Cost argues that the filibuster doesn’t prevent change, it just makes it less likely. He says, if your party has only 55 senators, and can’t get anything done, you can always try to enlarge your majority in the next election. But voters punish ineffectiveness, and they are not likely to be favorably disposed to cries from the majority party that they couldn’t get anything done because of dastardly filibusterers. Yes, the argument could work in extre

me circumstances, but the most likely outcome is that the minority party says “you gave them a chance, and they couldn’t handle it” and that the voters buy that. In other words, the filibuster not only allows the minority party to stop legislation, but (and it should be obvious that this follows) to politically hurt the majority in doing so. You can see this on a small scale in the recent furor over Ben Nelson’s sweetheart deal: the deal would never have been needed without the filibuster, or without the Republican threat to use it, but instead of blaming the institution or the Republicans, people are (predictably enough) blaming Nelson and the Democrats. So, I think Cost overestimates the likelihood that “they’re filibustering for

political reasons” will be a winning electoral argument, and so the filibuster might not just make legislative change less likely, but make it impossible for a long time. Is there any doubt that health care reform wouldn’t happen in 2011 if it doesn’t happen in 2009?

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