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Saturday, February 13, 2010

Eliminating the Filibuster is a Cure Worse than the Disease

Update: Word comes today that Illinois Senator Dick Durbin has now joined the effort to essentially eliminate the filibuster. So what has changed since May 23, 2005 when Durbin said “Those who would attack and destroy the institution of the filibuster are attacking the very force within the Senate that creates compromise and bipartisanship.”? All that has changed is that Democrats had only 45 seats in the Senate when Durbin defended the filibuster... today they have 59. Those who would abandon the filibuster for short term political gain need to sit down, take a deep breath, and truly consider what they are proposing.

Original Post: Two Senate Democrats have formally launched an effort to kill the filibuster. Sens. Tom Harkin (D-Iowa) and Jeanne Shaheen (D-N.H.) introduced a bill that would set a gradually lowering threshold to shut off debate on legislation, starting at 60 votes and lowering to 51 over six days.

So let’s just imagine the future – a future where the filibuster is no longer an option and only 51 votes are needed in the Senate to pass, or repeal, legislation.

In the near term, Democrats will pass Cap and Trade, Comprehensive Health Reform, and a truly progressive tax code. Then, by 2012 Republicans reclaim the House, the Senate, and the White House – a very plausible scenario, especially if the public reacts negatively to Democrats passing their agenda by changing the rules to circumnavigate debate and public scrutiny.

The new Republican majority, needing only 51 votes in the Senate to accomplish anything, shuts out the minority Democrats and repeals Cap and Trade, repeals Health Reform, passes a flat tax – and with their new freedom they privatize Social Security, next they decide to turn Medicaid into a block grant giving states the freedom to cover whomever they wish –or no one at all. Vacancies on the U.S. Court of Appeals? No problem, no debate. Vacancies on the Supreme Court? No problem, no debate. Drilling in ANWAR? No problem, no debate. Offshore drilling? No problem, no debate.

Are you thinking “well if they did all of that then the people would vote the Republicans out of office.” Indeed they would, and Democrats would then spend their time repealing what the Republicans had done… and then proceed to pass their partisan legislation and approve their partisan nominees… and the process would repeat.

Make no mistake, if Democrats repeal the filibuster it will set the stage for a complete breakdown of the legislative process – and yes, I reject the claims that the process is already broken. The best fix for our federal woes must take place at the state level where congressional districts are drawn. Partisan gerrymandering has created a polarized House making compromise with the Senate difficult and has served to polarize the Senate by discouraging turn-out among moderate and indepedent voters.

In Federalist 63 James Madison wrote of the Senate “that such an institution may be sometimes necessary as a defense to the people against their own temporary errors and delusions. As the cool and deliberate sense of the community ought… ultimately prevail over the views of its rulers… how salutary will be the interference of some temperate and respectable body of citizens, in order to check the misguided career, and to suspend the blow meditated by the people against themselves…”

The Senate was intended to be the place where everything slowed down, where the passions of the people, as expressed in the House, received a more discerning look. Where “the cool and deliberate sense of the community” prevailed. The filibuster does not represent what is wrong with our system of government, rather it represent what is best. The filibuster served our nation when it forced more intense scrutiny of George W. Bush’s judicial nominees and his proposal for Social Security reform and it serves us now as we debate fundamental policy changes.

Indeed, in 2005 when Senate Republicans were threatening to strip the ability of Democrats to filibuster judicial nominees it was current Senate Majority Leader Harry Reid who defended the filibuster saying that "stripping away these important checks and balances is about the arrogance of those in power who want to rewrite the rules so that they can get their way... This isn't about some arcane procedures of the Senate. It is about protecting liberty and our limited government... It would mean that one political party — be it Republicans today or Democrats tomorrow — gets to have all the say." Reid's words were true in 2005 and are true today.

In Federalist 73, Alexander Hamilton bragged openly about the difficult nature of policymaking in America “It may perhaps be said that the power of preventing bad laws includes that of preventing good ones; and may be used to the one purpose as well as to the other. But this objection will have little weight with those who can properly estimate the mischiefs of that inconstancy and mutability in the laws, which form the greatest blemish in the character and genius of our governments… The injury which may possibly be done by defeating a few good laws, will be amply compensated by the advantage of preventing a number of bad ones.”

If Democrats cannot muster 60 votes in the Senate, the answer is not to change the rules so that they only need 51 – the answer is to craft legislation that can attract a coalition of 60 Senators – whether that is 59 Democrats and 1 Republican, or 40 Democrats and 20 Republicans, or 35 Republicans and 25 Democrats. Anyone who dismisses that approach should take the time to read Robert Caro’s Master of the Senate and read how Lyndon Johnson negotiated the Civil Rights Act of 1957 – a bill that liberals viewed as toothless and hollow. But Johnson knew that he needed a bill that could pass, so he caved to Southern Democrats and accepted a weak bill – he didn’t win their vote, but he overcame their filibuster. That legislation then served as the foundation for the Civil Rights Act of 1960, and then 1964, and most importantly the Voting Rights Act of 1965 - perhaps none of which would have been possible without that crucial, and toothless, first bill.

Coalition and compromise that’s the Senate and it forces us to recognize that the true test of any bill is not how effective or comprehensive it may be – the true test is whether it can pass. If it can’t, move on, start over, make changes. Only those measures that can successfully navigate the obstacle course that is the American legislative process are worthy of becoming policy – and that’s how it was always meant to be. In Federalist 10, Madison argued that the only way to eliminate the threat of faction was to eliminate liberty. Today we face the question of how we might eliminate obstacles to legislating, the supposed solution is the elimination of the filibuster.  I'll respond in the same manner as Madison - such an option would be a "cure worse than the disease."