Failure Buster

Washington is abuzz with talk that the Senate Republicans will deploy the so-called "nuclear option" -- in essence, violating the rules of the Senate to eliminate the possibility of mounting a filibuster against a presidential nominee -- in order to obtain the confirmation of a handful of President George W. Bush's appointments to the federal judiciary. Senate Democrats, naturally enough, are plotting a second strike: Through various manipulations of the Senate rules, they will bring the entire legislative process to a grinding halt. And rightly so. There's no particular reason why filibusters should be banned just for nomination votes, and there's certainly no justification for doing so in a way that violates the Senate's rules. The politics of the fight that would ensue are uncertain but probably winnable for the Democrats. The substantive outcome -- no passage of any bills of any sort -- is the best liberals can hope for, given the current correlation of political forces inside the Beltway.

There is, however, a better way. Democrats should counter loose talk of going nuclear with a proposal of their own: The Senate as a whole could vote, through proper procedures, to end filibusters on votes of all kind, allowing passage of any bill (or nominee) that can secure a majority vote. Republicans may reject the offer, of course. But if they do so, that will only strengthen the Democrats' hand politically in combating the nuclear option -- by demonstrating a fair-minded commitment to principle over short-term partisan advantage.

Alternatively, the GOP might agree. In the short term, this would produce bad results: confirmation for some bad judges. In the long run, however, eliminating the filibuster will be good for liberals, and Republicans will rue the day they decided to sacrifice a major prop of conservatism in order to put a handful of under-qualified nominees on the bench.

There is a basic asymmetry between the two big ideological forces in the United States. As the old saw goes, Americans are ideologically conservative but operationally liberal. They're suspicious, in other words, of new "big government" schemes; but once such schemes are put into place, they prove quite popular. Despite dismal electoral performance over the past 25 (or, if you prefer, 40) years, liberals do a very good job defending the gains of the past. The key liberal achievements of the past -- Social Security, Medicare, Medicaid, civil rights, environmental regulation, federal funding for education -- have all withstood repeated attack. Indeed, smart conservative politicians either avoid attacking them or, as with the Bush prescription drug and No Child Left Behind bills, embrace them. In their not-so-smart moments, conservatives launch frontal assaults (as during Newt Gingrich's attempted 1995 Medicare cuts or the current effort to privatize Social Security) and watch their public approval ratings plummet.

The liberal difficulty is what it always has been -- getting new stuff passed into law. The public's instinctive skepticism toward novelty is re-enforced by the fact that the American political system puts into place an uncommonly large number of veto points at which legislation may be blocked. New bills must pass two separate legislative houses, each representing different sorts of constituencies; acquire a presidential signature; and pass muster with the Supreme Court. The filibuster merely enhances this tendency, already an outlier in the democratic world. It's no coincidence that the United States is also an outlier in terms of having a relatively underdeveloped welfare state. The many sticking points in the legislative process were deliberately designed by the Founders to bias the political system in favor of conservatism. Speaking ill of the Founders is, of course, not something done in polite American political discourse, but such biases are nothing liberals should embrace.

A filibuster-free U.S. Senate will give the Republicans only minor advantages. The Democratic talking points arguing that they've only filibustered a tiny minority of Bush's judicial nominees are perfectly accurate. This, however, is the problem. Preventing the courts from being packed with bad judges is important. But it's happening anyway. The handful of judges actually being blocked by the filibuster aren't notably worse in substantive terms than the huge quantity that have gone through already; they're just a bit easier to mount a public argument against. Beyond that, the main things conservatives have been successful at passing during their moments of ascendancy are huge tax cuts. But tax cuts -- thanks to the arcane-but-important budget reconciliation rules -- can't be stopped with filibusters. Indeed, it's very hard to think of any major conservative legislation that's ever been stopped by a filibuster.

It is, by contrast, very easy to think of liberal initiatives that filibusters have blocked. Indeed, as conservative activist Jim Boulet Jr. has wisely argued in a memo to his comrades, the filibuster is crucial to conservatism. By his account, without it, majorities would exist to raise the minimum wage; reform labor law to make new union organizing easier; ban discrimination against gays and lesbians in employment; reduce greenhouse-gas emissions; and close the "gun-show loophole." I'm not a gun-control fan myself, but everything else on the list is a key priority. In the past, of course, the filibuster is most famous for its role in delaying the dawn of civil rights. Less well known is that it was integral to the defeat of Bill Clinton's health care plan in 1993. If liberals ever get another chance to go for comprehensible health-care reform, the filibuster will once again rear its ugly head.

At any given moment, the filibuster rule helps the minority party. Right now, that's Democrats. But taking the long view, the filibuster is bad for Democrats. Ideally, you'd want to get rid of it at just the ideal moment. But, realistically, that can't be done; only minority-party acquiescence will let it happen. Now's a good time for Democrats to show some rare appreciation for the importance of long-term thinking and let the right shoot itself in the foot -- rather than giving them yet another tool with which to rile up their base.

Matthew Yglesias is a Prospect staff writer.

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