Matt Yglesias and Kevin Drum are defending the elimination of the filibuster on the grounds that unpopular legislation will fail even if a majority of legislators are behind it. (From their lips to God's ear . . . ) I find it interesting that a major word is missing from the discussion: abortion. The most successful Democratic use of the filibuster has, of course, been against judges who might overturn Roe v. Wade. If it weren't for the filibuster, it's pretty likely that a play to overturn Roe would even now be wending its way through the courts, to a probably-successful conclusion. Other treasured liberal programs like affirmative action, and certain kinds of environmental regulations, would probably also be in serious danger.
Why is abortion missing from this discussion, especially when it is currently more central to our main public policy debate than the filibuster? The filibuster has allowed Democrats to impose a minority view of abortion rights on the country; saying that unpopular legislation tends to fail is true, but not complete, because that is not the most powerful effect to which Democrats have used it.
Now, maybe it's worth sacrificing some abortion rights in order to secure legislation. Me, I'm comfortable with the filibuster, because I think that in a democracy as pluralistic as ours, the government needs a way for sizable minorities to influence policy. But I think you have to be more explicit about the tradeoffs when you discuss eliminating it.
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Wait, wasn't it just a few years ago that the Republicans were considering eliminating the filibuster, and the Democrats were claiming it was an integral part of American Democracy?
You are correct. And I believe that is slated to happen again around 2017.
In vague, general terms, yes. If you can tie that to conflicting statements by Yglesias and Drum(or Senators or what have you), then you've actually got something. According to this recent post, http://yglesias.thinkprogress.org/archives/2009/11/the-filibuster-is-bad.php, Yglesias was still against it in 2005, and to my knowledge has been critical of bicameral legislatures in general and the Senate in specific.
I happen to disagree with him, but don't attribute statements to a mushy Democrats inconsistently. Tar the individuals like Sessions, Graham, Brownback, and McConnell along with the democrats who are on the record switching positions.
Trailing comma in that link.
http://yglesias.thinkprogress.org/archives/2009/11/the-filibuster-is-bad.php
Good post. A coherent progressive should be against the filibuster because it makes it easier for the minority to obstruct the majority will. A consistent (small "r") republican should be in favor of the filibuster for precisely the same reason.
I think you'd have more luck catching Drum or Yglesias in a contradiction by looking at reactions to using ballot measures against gay marriage. You might find them outraged that rights can be taken by minority votes. But while I put the both of them in the category of confirmation bias, I think they are still savvy enough to avoid that trap.
You think it'll take until the 2016 election for Congress to switch parties?
Yes, that is true, but if you notice the radically different uses. It is literally used to block any vote since Republicans became the minority. That is unprecedented (probably comparable to reconstruction or Woodrow Wilson's term).
Either elections have consequences or they do not. I am not for an abolishment of the filibuster, but I do think that a majorities agenda should not be held hostage by it. It should exact a toll on the minority, it should be used infrequently, not as a strictly procedural maneuver. More of the pain of sustaining it should fall on the minority party.
RomanX:
"It is literally used to block any vote since Republicans became the minority."
Well, if that were the case, the Senate wouldn't have reorganized for the 110th and 111th Congresses, right? No votes have taken place since Republicans entered the minority? Surely someone would have noticed 2 years and 11 months of inactivity from the Senate, right?
I'd apologize for my sarcasm but misuse of the word "literally" is truly irritating.
Both sides claim that the minority's use of the filibuster is "unprecedented" in every case. The shoe was on the other foot with judicial nominations in 2005 and it didn't seem to do much for the Republican majority then. That's why it's disingenuous now. Not that I expect principled consistency from politicians, but let's call it what it is - and it's certainly not unprecedented.
Elections certainly do have consequences, but in this case, the majority's agenda is only being "held hostage" by the members of the majority who dislike it. Democrats have enough members within their Caucus to stop a filibuster if they stay unified, full stop. If they can't stop a filibuster, it's because *Democrats* object to something, not the minority. That's a slightly different dynamic than in prior years because the majority is especially large, and that's why your suggestion that more of the filibuster's pain should fall on the minority is moot.
Yes, elections do have consequences. For example, we got the version of the stimulus that we got. Sotomayor was confirmed. However, there is supposed to be a limit to the consequences elections have. The U.S. is a big country with a lot of power. It would be both dangerous and impractical to expect it to turn on a dime. Too many people - both here and abroad - have to make decisions looking forward more than a month or two, and those decisions are often affected by the direction America is going.
Our founding fathers gave us a Constitution deliberately constructed to keep the government from doing too much or changing too fast. One of its "features" was a bicameral legislator whose Senate was not popularly elected - a dual restraint on popular passions carrying the day. While the U.S. has subsequently grown more democratic and some of our governmental structures have altered, we haven't stopped teaching the kiddies about checks and balances in government class and for good reason: We are a republic, not a democracy. The purpose of our government is not to implement majority will, but to handle public matters (the literal translation of republic) in a way that is responsive to the people within a constitutional framework.
The filibuster, for all its problems, makes sense in one critical way: It maintains the senate as the cranky upper chamber that holds popular passions in check.
As a side note, I think Bergamot and TomB get to the heart of the matter. If it's your majority being obstructed, the filibuster can look pretty abusive. Before you wage arguments against the filibuster, though, you have to ask yourself whether you think Presidents with the following names should have an easier time getting their agendae enacted: Bush, Palin, Obama, Pelosi. Very few, I think, will be enthusiastic for all four. Our founders knew what they were doing with the bicameral legislature and to the extent that the filibuster maintains the senate as a problematic place for "getting things done" we're all better off in the long run.
Leaving "literally" to one side, has there been even one filibuster in this Congress?
If someone could point me to a list of failed cloture votes, I'd be interested.
Wait a minute. Maybe I missed something here, but did Democrats ever actually use the filibuster against judges who might overturn Roe v. Wade? I know there were vague threats of this back in 2005, but was this ever actually done?
And does one really think that any of the judges actually appointed by Bush do not support the overturning of Roe v. Wade. Exactly what judge was blocked by the Dems only to be replaced by a seemingly pro-Roe judge? I think this very broad statement by Megan needs a little factual back-up before being taken at face value.
"Wait a minute. Maybe I missed something here, but did Democrats ever actually use the filibuster against judges who might overturn Roe v. Wade?"
Um ... it's become a verb ... called "Bork-ing."
Robert Bork.
They didn't use it successfully on Alito or Roberts did they?
Bork wasn't filibustered. He was voted down in an up-or-down vote. The Democrats certainly threatened filibusters of pro-life Supreme Court nominees, and they filibustered pro-life lower court nominees, but the key reason we still have Roe and Casey is because of the defeat of Bork, which was not a filibuster but by majority vote.
So Megan's wrong, ultimately, about the filibuster preserving Roe.
Major logical leap here in assuming that the only reason for Bork's defeat was abortion. You're right on one point - Bork was defeated by a majority vote of 58-42 - but it's a huge jump from there to assuming that Roe and Casey are still sacred because of that one vote.
Every Supreme Court nomination and most federal judicial nominations are colored by abortion politics and the filibuster is intricately intertwined with those votes. So no, Megan's not wrong.
I don't think you get it. The claim is that the filibuster preserved Roe. That's wrong. Bork would have been the crucial 5th vote to overturn Roe. He was defeated and Kennedy was put in his place. And Kennedy was the crucial 5th vote in Casey to reaffirm Roe. Thus, whether or not abortion politics played a role in Bork's defeat, it was the crucial event that saved Roe.
Since that time, there has never been a situation where the 5th vote in favor of abortion rights has left the Court. As a result, the filibuster has not played a role in saving Roe. Roe was saved when Bork was voted down.
Bork was not filibustered, he was soundly defeated in an up and down vote, 42-58. 2 Dems voted for him, 7 Reps voted against him. Bork was accorded a floor vote even though the Dems were in the majority.
Again, I challenge anybody to provide for me a realistic example where an appeals court judge that was solidly pro-life was challenged by a Dem fillibuster (or even the threat of one), resulting in his withdrawl and the appointment of a pro-choice judge, thereby preventing the opportunity for what Megan described as a "play to overturn Roe would even now be wending its way through the courts." What liberal judge was forced upon Bush by those dastardly Dems in the minority that has prevented a challenge to Roe form being sent up to the Supreme Court? megan, can you name one?
Not only that but it isn't a minority position. One poll doesn't make it so. Megan can claim what ever she wants, but she doesn't get to make up facts.
Well, her employers don't seem to care nor does she, so apparently she does.
Sluglas:
That's what the Gang of 14 was all about. The Dems were filibustering 10 Bush appointees, and the Reps were threatening to do away with the filibuster on judicial nominations. The Gang of 14 compromised the issue.
Sure, I know that, but tell me what judge was rejected by the Gang of 14 that would have made as profound a difference on this one issue, had they been appointed, as Megan is implying here? And was that judge opposed solely on abortion grounds or for, say, commerce clause grounds?
Fair enough, I forgot Estrada. However, it should be noted that that slot was eventually filled by Thomas Griffith, General Counsel for BYU; hardly a pro-choice judge, so I still fail to see how the fillibuster has actually preserved abortion rights in the judiciary.
RomanX, firstly, the Republicans aren't capable of fillibustering anything. If Democrats want to pass something, they have the sixty votes. Also, how would you propose exacting a toll on the minority? The voters would do so if the legislation being proposed were overwhelmingly popular and the Republicans were just being obstructionist. The only reason that Republicans think they are pursuing a good strategy is that the legislation at issue is not all that popular.
"... [Democrats] have the sixty votes."
No, they don't.
They have 58 votes and while two independents caucus with them, those two are by no means required to join in the destruction of the country and are free to vote as their constituents are demanding them to.
And the Democrats are required to?
You know, as it turns out, there's 100 members of the Senate who are free to vote however they want(and once in a while, a 101st, too). Whether your name ends in D-, R-, or I-, you still get to vote however you please.
"Why is abortion missing from this discussion ..."
Because neither Matt Yglesias nor Kevin Drum are woman, and women are merely expendable pawns to them.
Just like Nancy Pelosi threw a woman's right to an abortion under the bus to get her health tax bill passed.
A woman's uterus is just a bargaining chip to these people.
So back to the kitchen with you, Megan ... and take off those shoes.
You've come nowhere, baby.
And I've noticed that everyone who is pro-choice has already been born. A fetus is just a bargaining chip to them. Do some impartial moral reasoning and the implausibility of the pro-choice position emerges.
1. The concept of "life" is not metaphysics or philosophy. It falls within the domain of science. And life really does begin at conception.
2. The violinist defense fails because (1) the analogy is to rape, not consensual sex, and (2) it only establishes the right to walk away from the violinist, not kill him. We can delve into floating people-seeds and burglars but these points remain standing.
3. The fatal flaw of all personhood defenses is that if you draw the line too late you allow legalized infanticide. Draw it too early and you make killing animals to eat meat equivalent to killing humans.
So what we are left with is that the pro-choice position is based on either empirically false claims, or logically inconsistent claims.
1) Yes, life begins then. Question is about the right to keep that life, not the life itself.
3) Then the answer would seem to be drawing the line somewhere in between those two, no?
Partisans appear to have incredibly short memories. Every time the Senate changes hands this comes up with the 'winning' side.
The truth is that Senators like the filibuster - it allows them to express support/opposition to bills without ever having to vote on them.
I wish the Democrats had used the filibuster more during the Bush years, particularly re the Iraq invasion!
I find the whole argument that "Democrats voted for some big Republican programs in the last Administration, ergo Democrats are entitled to get their big programs approved in this administration" to be pathetic. It's not that the Democrats were magnaminously acting out of a comradely spirit back then and are now finding their trust betrayed. There were simply a bunch of Democrats back then that were either legitimately convinced of the merit of the Republican policies (in most cases wrongly so) or who were too politically weak to stand up to oppose them.
As someone who thinks government has grown too big for its citizens' rights to be safe, I like every obstacle I see to more federal expansion.
I wish the Democrats had used the filibuster more during the Bush years, particularly re the Iraq invasion!
The Iraq AUMF passed with 77 votes. Also, there were only 49 Republicans at the time anyway.
As a minarchist libertarian, I'd like to see a 2/3 majority required for the Senate to pass anything.
Actually Democrats do not technically have 60 votes, since we are being particular, they have 58 with 2 Independents that have the option of caucusing with the majority.
Apologies Orange, for the misuse of "literally". It is annoying, and sloppy on my part.
But this article shows the massive increase in cloture votes that Republicans have forced since they became the minority.
Not to mention the quorum rules, most of the burden of cloture/filibuster falls on the majority.
I guess my point is, this is not merely one of those "pox on both houses" arguments. One side is demonstrably abusing the intent of rules. If it was meant that the majorities legislative agenda needed a super-majority to pass, then they should have the stones to amend the senate rules to reflect that.
I appreciate your clarification on "literally," but since we're being particular, I'll note that I said "Democrats have enough members within their Caucus to stop a filibuster if they stay unified, full stop." Which is true - Both Sanders and Lieberman caucus with the Democrats and can be disciplined just like other members of the caucus - committee assignments and seniority, etc. My larger point is simply that it's inaccurate to blame the minority in this situation for obstructionism because the minority actually doesn't have enough votes to obstruct when looking at party identification.
The article you cite, moreover, is from March/April 2008. Since then, we've had another election and Senate Democrats dramatically increased their majority. Filibuster politics are *much* different when it's 49-49-2 than when it's 58-40-2. Even conceding arguendo that Republicans filibustered more during the '07-'08 session than Democrats ever did, the Senate's current party makeup means that Democrats don't need *any Republican votes* to cut off a filibuster. That's the most important difference. Sure, it's inconvenient for Harry Reid as he tries to pass a health care bill, but that doesn't mean it's Republicans' fault if he fails.
Finally, I'd dispute your assertion that "one side is demonstrably abusing the intent of rules." The whole point of the filibuster is to allow an impassioned, united minority to have a voice in legislation - even when that voice means preventing legislation from becoming law. I agree that its evolution may have been murky, but it's certainly consistent with the idea that the Senate has always been meant to slow the public's immediate desires.
The closure vote count is not an actual measure of Republican filibusters. There are a number of reasons Reid would find it useful or necessary to have a closure vote. By the way, how many of those actually failed, and only due to Republican votes? Prior to January, the threat of veto carried more force than filibuster, so it could just be that Democrats wanted everyone on record...
Personally, I think that if Democrats can not negotiate to keep the entire party on board and manage to appease two centrists, they should not be able to pass something. It should speak volumes about a piece of legislation when they can not.
Well the use of the "threat" to filibuster has definitely evolved. Some of that is procedural (increased cloture motions) and some is structurally oriented (with regards to caucus composition).
One big problem with comparing eras (especially when talking about bipartisian bills) is that you really had 4 parties in the past. Both parties had its liberal-conservative wing. That is no longer the case. One party is far more homogeneous in its ideology (thus far easier to unite and far more politically lucrative), while the other is more of a patchwork. That is a bit of digression, but something that does not get mentioned very often in these situations.
I will however add one caveat to one of your statement, "..the Senate's current party makeup means that Democrats don't need *any Republican votes* to cut off a filibuster.", unless any of their caucus falls ill, must return home, can not be on the floor for any reason. The minority does not face such a requirement. Also as you stated, the filibuster as it was intended was not meant to stop debate, but to insure debate on an issue. It was not meant as a de facto veto for the minority.
Even though the Senate is meant to be the more deliberative body, it was not meant as an absolute road block for the majority.
Again I am not arguing for the abolishment of the filibuster, just that the onerous aspects of it be placed more firmly on the minorities shoulders. If our government can not function in a time of crisis then what purpose does it serve?
So would you favour allowing a proxy vote to remove the problem of illness or other absence?
I think most liberals see abortion rights being scaled back as so unthinkable that it just doesn't come to mind... think of Dayo Olopade's response to the notion that taxpayers wouldn't fund abortions in your recent BhTV conversation: "It's inconceivable to think that voters/legislators would actually get away with scaling back what I consider to be a fundamental right." They don't consider what would actually happen because they eliminate possibilities that they find completely outrageous, even when they find themselves in a solid minority position.
@ Hagios: Abortion is a sin.
Yes, you did not say that, so
I made your motive explicit.
Logic can operate on any set
of assumptions, including a religion;
Reason is restricted to objective
reality, in which life has no
intrinsic value.
Value is assigned by a society,
based on its situation; societies
have the kind of morals they can
afford.
Economic collapse will make life
cheap, and abortion a necessity.
Do what you can to prolong prosperity.
By that logic, murder, assault, theft, etc. are all "necessities" at times.
"The filibuster has allowed Democrats to impose a minority view of abortion rights on the country..."
Not sure I agree... don't most favor keeping abortion legal?