Is Bringing Back the "Real" Filibuster the Solution?

In a Times op-ed today, Barry Friedman and Andrew Martin advocate a proposal you often see in blog comment sections: restoring the "real" filibuster as a solution for gridlock:

...the Democrats need to take three steps: First, they should announce the order in which they will take up their legislative agenda. Next, they should declare that they will no longer be using dual tracking, so that the Senate will hear just one issue at a time. Finally, Democrats should require those who want to filibuster legislation or appointments to actually do so, by holding the floor, talking the issue to death and bringing everything to a halt.

The new-school filibuster would preserve minority rights in the Senate, while imposing significant costs on obstructionist members, changing the calculus that causes today’s logjam. Stuck on the Senate floor, filibustering senators couldn’t meet with lobbyists or attend campaign fund-raising events; they couldn’t do much of anything, really, until their filibuster ended.

I am skeptical of this kind of proposal for three reasons:

  • While it's true that such a change would make it much more difficult to sustain a single-person, Jimmy Stewart-style filibuster, it's less clear how much more difficult it would make a filibuster supported by an entire minority party. The 41 Republicans in the Senate could keep a filibuster of health-care reform going without an enormous sacrifice to any one member.
  • More important, the classic filibuster also entails greatly increased costs to the majority party. The minority party is likely in many cases to see the obstruction of other aspects of the Senate's agenda as a feature, not a bug. Moreover, the political reality is that the majority party will be blamed for failures in government regardless of the merits. Because of this, it's far from clear if this rule change would even make that much difference -- a credible threat to filibuster by the minority party leadership would probably remain enough to get a bill removed from the Senate's agenda.  
  • Whether the rule change would be a marginal improvement, make things marginally worse, or have no effect at all, my biggest disagreement with the proposal is the undefended assumption that the "rights" of legislative minorities to block initiatives with majority support are worth preserving at all. A vastly superior reform of the Senate would be to simply get rid of the filibuster altogether and use the same decision rules that work well for most of the world's other democratic legislative bodies. I particularly object to the use of the "minority rights" locution, which ties the filibuster to a genuinely important democratic value: the protection of underrepresented minorities against domination. The filibuster's effect on this kind of minority rights, however, has been and will almost certainly continue to be a net negative. Rather, the filibuster protects the interests of minorities that are already substantially overrepresented by the American political system.  

--Scott Lemieux

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