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When Is It Appropriate to Filibuster?

July 28, 2010

You’ve probably heard by now that the DISCLOSE Act didn’t make it through the Senate because of a Republican filibuster.  While I find myself rather agnostic on the bill in question — oh my gosh, not money in politics! — I actually don’t have a real problem with the chorus of liberal voices maligning the filibuster as the end of democracy as we know it.  But first, let’s just address this comment from Michael Tomasky criticizing Olympia Snowe for saying that the bill would have benefited Democrats more than her own party:

She is undoubtedly correct in that the court’s decision – maybe not so much this election cycle, but 2012 and all subsequent ones – will overwhelming benefit Republicans. But she’s starting to cry wolf a little on this slow-down business. This was her same reason for voting against healthcare reform, which took nearly a year (and which she’d supported in committee).

That’s the Supreme Court’s Citizens United decision, in case you’ve been living on Socotra Island, which prevents the feds from capping the amount of money private donors can give to political campaigns.  Presumably, the ruling will “overwhelming[ly]” benefit the GOP because those damnable corporations can now give however much money they desire to Republicans candidates, and we all know that for corporations, Republicans good and Democrats bad!  Of course, we could always pull out the data, which says that those evil corporations donated more money to 44 than they did to John McCain and that organized labor has taken advantage of the ruling’s implications more so than any private company so far.  But let’s not bother with the facts.

Anyway, the reason I bring up Tomasky’s piece is because I like the James Madison quotation that he cites at the end of it.  According to the guy who basically wrote the Constitution:

In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. It would be no longer the majority that would rule; the power would be transferred to the minority.

So Madison opposed supermajority requirements except in extraordinary cases such as treaty approval and the deposing of members.  Never mind that the filibuster was an accident in the first place.

Now, I do have a problem with the discourse surrounding this argument.  Obviously, it’s necessary to look past the actions of opportunistic politicians to really see what the problem with the filibuster is — Democrats like it when it allows them to prevent the confirmation of Supreme Court justices by a Republican President, while the Republicans like it when it allow them to prevent the passage of things like the PPACA.  The central argument, as I gather it, coming from liberals on this issue is that an elected party should have a chance to “advance its agenda”.  I don’t really see the merits of that explanation, especially since ending the filibuster would quite conveniently benefit liberals more than conservatives, since there tends to be no “undo” button on liberal policy initiatives (see: the income tax, Social Security, Medicare, PPACA).  I think the Left enjoys pretending that it would benefit both sides equally, but they probably know who would emerge victorious from this fracas.

Unfortunately, that’s not a good reason to support the filibuster.  I think Madison trod softly on the line between opposing and supporting it — he certainly didn’t believe that every law ought to be subject to the approval of a supermajority, but he also worried quite seriously about the trampling on the “rights of the minority” by an “interested and overbearing majority”.  But treading the fine line doesn’t really fly anymore.  Nowadays, you can’t say that you sometimes support the filibuster and other times don’t, especially when it comes to laws like health-care reform which are strictly the business of the legislature.  The idea that it should exist for “special cases” means that politicians will use it every time they decide something is a special case, which is quite often in an era where Congress is no longer “authoritarian, hierarchical” or “opaque”.  And that’s not really a good way to run a legislature, just like deeming laws unconstitutional via 5-4 votes isn’t really a good way to run a judiciary.  These practices need to be switched.

The problem is that it’s impossible to separate instances where the filibuster should be used and where it shouldn’t be used.  And, if that’s the case, then it probably shouldn’t exist a’tall.  Yes, even though that will enable liberals to enact their government programs that are almost impossible to undo.  Yes, even though that will expose the minority to the whims of an impassioned majority.  Despite these drawbacks, the practice of sometimes invoking a rule that requires a three-fifths majority to confirm judges or pass unemployment insurance strikes me as fairly arbitrary.  And that’s not a good way to run a legislature.

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