Tuesday, April 4, 2017

The Filibuster

On March 4, 1917, in the final hours of the 64th Congress, 11 anti-war senators led by Nebraska’s George Norris filibustered to prevent a vote on a bill (which had already passed the House) to arm (supposedly still neural) American merchant ships against potential German submarine attacks. In response, President Woodrow Wilson said of the senators: “A little group of willful men, representing no opinion but their own, have rendered the great government of the United States helpless and contemptible.”  Four decades later, however, Senator John F. Kennedy, who probably shared Wilson's interventionist worldview, nevertheless included Senator Norris among his "Profiles in Courage" in his 1957 book with that title. 

Thus it has been with the filibuster, both reviled and applauded, both denounced as destructive of democracy and hailed as one of the Senate's venerable traditions, both of which are to some extent true.

But the filibuster seems to have reached a crossroads. When I was growing up, even when I first started studying political science, the filibuster meant senators actually talking a controversial bill to death. The expenditure of effort and the practical damage to the Senate as an effective legislative body combined to keep down the number of actual filibusters. They tended to be associated with profoundly controversial issues of genuine importance, as the 1917 example illustrates. By my time, it was the possibility of civil rights legislation that tended to provoke the threat of filibuster. I can still recall the famous Senate vote to invoke cloture to cut off debate on the 1964 Civil Rights Act. In those days a two-thirds vote was required for cloture. That has since been reduced to 60, even as filibusters - or at least the notion of filibuster without necessarily people actually talking without end - have increased in frequency, so much so that it is now increasingly almost routine to require 60 votes for most legislation. 

This 60-vote requirement, which was in no way envisioned in the constitution (which does provide for a 2/3 vote in certain specific circumstances), ought, it is sometimes suggested, to contribute to greater bipartisanship, since it may often require the majority party to depend on at least some minority party voted to pass its program in the Senate. De facto, however, as each party's membership has grown more ideologically narrow in recent decades, it has highlighted the partisan divide, making it increasingly difficult (if not impossible) for a congressional majority to govern at all, and (much more truly than when Wilson said it) has increasingly "rendered the great government of the United States helpless and contemptible.”

Of course, other factors have contributed to that as well. Surely, the reckless behavior of the Republican majority in not allowing a vote on the confirmation of President Obama's Supreme Court nominee last year was a very vivid instance of rendering "the great government of the United States helpless and contemptible.”  Even more contemptible was the threat by some senators, anticipating Hilary Clinton's election as president, to prevent anyone nominated by her from being confirmed. For this reason, the Democratic Senate Minority would, I believe, be responding reasonably by filibustering the Gorsuch nomination and indeed by opposing in whatever way possible any Republican judicial nomination.

It is suggested that this will provoke the Republican Majority to change the Senate's rule for Supreme Court nominations in order to get Gorsuch confirmed. Perhaps it will. The filibuster is already gone for other nominations. But, if the threat to abolish the filibuster is going to function as the equivalent of the reality of its abolition, then why not just have the reality sooner rather than later? While Gorsuch's confirmation will likely be bad for the country, ending the filibuster in my opinion would not necessarily be so bad.

Of course, there have been bad filibusters and good filibusters - in the sense of causes I would or would not have sympathized with. Everyone can take his or her pick. For example, I think Norris, LaFollette, et al., were right in trying to stop Woodrow Wilson, who, however, ended up getting his way anyway - and then took the country into war one month later. But Wilson's nasty characterization of them was not for that reason any less accurate. Any political institutional arrangement, the filibuster included, will likely produce some outcomes I would favor and other outcomes I would not. At its best, the filibuster as a political institution makes the inherently unrepresentative Senate even less responsive to the national will. At its worst it has aggravated our excessive partisanship and political dysfunction, indeed rendering "the great government of the United States helpless and contemptible.”

So let's let go of the filibuster, once and for all.  The immediate policy outcomes may not be very good. But, in the long-term, the health of our political institutions can only be bettered by the elimination of this degradation of democratic governance.

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