Cheering on the Nightmare Scenario

As the Prospect's Jamelle Bouie notes, the invaluable Greg Sargent outlines a "nightmare scenario" should the Republicans capture the Senate in 2012: the possibility that they will eliminate the filibuster. My response would be that ultimately this is more of a dream scenario, both for progressives and for American democracy.

This is not to say that eliminating the filibuster with unified Republican government—the only scenario, as Sargent correctly notes, in which the filibuster would be eliminated—wouldn't lead to some bad legislation that wouldn't pass with the filibuster buffer. It almost certainly would. But such potential short-term setbacks shouldn't blind us to the fact that the filibuster is a transparently indefensible feature of American government, and if it takes a temporary Republican advantage to get rid of it, this is a price worth paying.

In theory, the filibuster is a terrible idea. To be sure, democracy means more than simple "majority rule," and it is important to have institutional arrangements that protect minority rights. But the constitutional design of American government is already an unusually cumbersome one with many veto points that constrain majorities. It already requires the support of two independent and powerful houses of Congress and the signature of an independent president with veto powers. After passage, legislation is then subject to review from independent courts. Adding extraconstitutional features that make passing legislation even harder by further empowering legislative minorities must surpass a very high burden of proof. Lending credence to minorities in a legislative house that is already terribly malapportioned cannot meet this kind of standard.
 
If the filibuster worked well to protect the rights of powerless minorities in practice, one might overlook how bad it is in theory. But the filibuster has, if anything, been even worse in practice than it is in theory. It's not, exactly, that the filibuster fails to protect "minority rights." The problem is that the national minorities that the filibuster has actually protected—such as lynchers, people who believe African Americans shouldn't be allowed to vote or use public facilities on the same terms as whites, people who believe women shouldn't receive equal pay for doing the same work as men, and people who believe that gays and lesbians should not be allowed to openly serve in the armed forces—are generally powerful minorities who were already grotesquely overrepresented within the political process. The evidence that the filibuster can help underrepresented minorities is scant. The filibuster was a very powerful tool for stopping civil-rights legislation but did nothing to stop the passage of the Fugitive Slave Act, the Espionage Act of 1917, or the Taft-Hartley Act.  
 
It is true that the use of the filibuster prevented some reactionary judges from being confirmed to the federal courts during the second Bush administration (although Bush was able to get two down-the-line conservatives confirmed to the Supreme Court without any serious attempt to mount a filibuster). But the Republicans have used the filibuster to much greater effect in terms of stopping judicial appointments. Barack Obama is likely to be the first president in several decades to serve a full term without getting a single appointment to the powerful D.C. Circuit Court of Appeals confirmed, despite several vacancies. 
 
The example of judicial appointments also reveals a further problem with the filibuster—its contribution to general dysfunction in American government. As parties have become more ideologically coherent and disciplined, Senate minorities have made it increasingly difficult not only to fill judicial vacancies but to fill executive-branch positions. Even getting relatively noncontroversial nominees to lower-tier positions confirmed has become a grueling process as Senate minorities hold nominees hostage to gain leverage in other political battles. The result of this is a vicious circle in which no party is better off but American government functions much less effectively as key positions go unfilled for no good reason.   
 
Despite the many bad effects of the filibuster, Democrats may understandably be terrified of what kind of legislation might pass if Republicans had control of the government without a filibuster. But it is also important to note that with responsibility comes an accountability that creates political constraints. House Republicans could feel free to vote for Paul Ryan's unpopular plan to effectively end Medicare because it had no chance of actually becoming legislation with Democrats in control of the other two branches. A Republican Party that was in control of all three branches might make the Ryan plan law—but it is much more likely that it would not. The filibuster was unnecessary to stop George W. Bush's plan to privatize Social Security, which didn't even get voted on in either House. And where the Republicans are likely to do the most damage—by passing more upper-class tax cuts—can already be done without the filibuster.
 
Even if the Republicans decided to adopt the Ryan Plan, that's politics—winning parties should have the opportunity to govern and then be accountable to the electorate. The way to stop legislation you don't like is to win elections, not by arbitrarily handcuffing the party that wins. Ending the filibuster would also make it easier for future Democratic governments to correct mistakes as well as tackle new problems. For the Republicans to end the filibuster would be short-sighted from the perspective of their interests—and hence very, very good for the country. 

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