Strengthening Constitutional Self-Government

No Left Turns

The (Eventual) Strange Death of the Filibuster

I think and maybe fear that the argument over reconciliation might have inflicted a mortal wound on the filibuster, but not in the way that liberals might have hoped and probably in a way that they will live to regret - at least for a time.  On the one hand the filibuster will come out of this current scrap okay.  Obamacare will pass or fail based on whether the House of Reps passes the Senate version of Obamacare unchanged.  If the House passes it, the Senate version of Obamacare become law.  The law passed the Senate according to the familiar filibuster rule.  It got sixty votes in the Senate (as the vote was taken before the Massachusetts Senate election). The reconciliation process then might or might not (I suspect not) be used to make some changes in the version of Obamacare we get.

The problem will come when the Republicans again take over control of the presidency and both houses of Congress.  The Democrats remembered how the Republicans in the Bush years threatened to change the filibuster rule (using weak and transparently self-serving constitutional arguments) to back the Democrats off filibustering Bush Supreme Court nominees.  The Republicans will remember how a Democrat President who was a staunch supporter (and user) of the filibuster rule when he himself was in the Senate minority was happy to see the filibuster circumvented.  They will also remember that he abandoned the filibuster in order to pass a major and controversial piece of legislation - exactly the kind of legislation that the filibuster, if it has any purpose, was designed to to moderate in order to garner crossparty support and broad legitimacy.

In the memories of many Republicans, the filibuster will have become a one way door in which the Democrats can pass things by ignoring the filibuster,  but Republicans require supermajorities.  And it will be a door that can be broken by fifty Republican Senators and an allied Vice President.  It is easy to imagine that a Republican President with narrow congressional majorities will take such a path to undo many liberal policies and enact many conservative policies of that would not have gotten sixty votes in the Senate and therefore not have passed in so pure a form or perhaps not passed at all.

Liberals will have many complaints.  The will argue that the "fierce urgency of now"  had given way to the need to do nothing until liberals are back in the saddle for consolidation and broad consensus for major change.  They will also note correctly that they never actually changed the filibuster rule.  But Republicans will remember the bad faith across decades, and the cries of the liberals will not avail. 

Discussions - 9 Comments

Is it really unreasonable to say that the filibuster is proper for Article I legislative powers, but not Article II advise and consent powers? That was the Republican argument in the Bush years. It was a rule that used to be recognized, even if it was unwritten. The change was filibustering nominees.

Good riddance... to the filibuster, 'holds' on nominees, and bicameralism.

Riichard, in the sense of whether the Senate is violating the Constitution by having a supermajority rule for bringing nominees for an up or down vote, then I would answer no. The Abe Fortas case comes to mind. One could argue that this was a special case as Fortas was corrupt, but that is a prudential rather than a constitutional argument.. I think the Republicans just filibustered to death an Obama appointee to the NLRB.

I emant filibustered the nomination to death, not the appointee. Yikes!

Constitutionally speaking, there needn't be a filibuster at all, or it could require 90 votes to break, so I obviously wasn't making a constitutional argument, strictly speaking. I was arguing that the process was traditionally understood only to be fitting for Article I powers. That's a reasonable and clear rule. As you note, there is no longer much respect for that idea in the Senate. The gang of 14 (or however many it was) deal marked the change,.

The liberals have never before abided by their own standards ... why in the world do you expect them to in the future?

Pete and Richard, excellent points.

As to the latest proposed methods of passing Obamacare, I want to make a joke about "deeming," the Slaughter Solution, and the "self-executing rule," but I can't quite pull it off. It's in there somewhere.

But let's face it, this is more appalling and even dangerous than it is ridiculous. Shame on these Congressional Democrats. By this point they must know that THIS bill is going to be subjected to long-term efforts to repeal every last portion of it. And yet they press on, betting so much of their energy and prestige on passing this whole kit and kaboodle right now. The narrative they bought on the Clinton health-care failure is killing them--they simply cannot accept that some deferring-to-public-opinion short-term losses would be better for them and the nation than the spectacle of them concocting ever-more unprecedented and labyrinthine ways to (supposedly) "win it all" by a razor-thin margin. No commentator is going to be able to explain these bizarre procedures to the American public, and more importantly, no moderate-minded commentator of any ideological stripe is going to be able to justify them (even reluctantly--in the spirit of losing gracefully) to the 45% or so of Americans who are not just leaning against this bill, but who fearfully hate this bill.

That is, the Democrats are now playing with the fire of basic democratic legitimacy. If they pass (or "deem passed"--Lord) this bill just prior to the latest announced anti-Obamacare rally in DC (3/16), the anger is going to be overwhelming, and protest leaders may not be able to channel it into entirely non-violent paths. Ditto for nation-wide actions. Calls for radical actions on the right, such as tax boycotts, state-opt-outs, direct-democracy initiative measures, sit-ins on DC roadways, "right-wing Alinksy-ism," are going to take off. Not good. Not for anyone.

Richard, based on your last comment I don't think that there is much substantive difference between us on the constitutional issue. I was reacting to the idea (that I heard expressed in 2005) that the President had a right to an up or down vote on his nominees and that a Senate rule that allowed a minority to block that up or down vote was unconstitutional.

Carl, I think that the way the Democrats have gone about this will probably bite them, but not right away and not directly. My suspicion is that Obamacare, if it passes, will happen according to regular procedures with the House passing the Senate bill. Either Obama and the House Democrat leadership will con or buy enough no voters to swtich to yes or they won't.

I'm not sure how much the median voter knows about, much less cares, about the procedural trickeration. It will certainly infuriate right-leaning voters who consume conservative-leaning media, but for the median voter, the focus should be on the bill's substantive flaws. I think that the long-term effect will be to harden rising conservative elites who will remember the Democrats WILLINGNESS to play any procedural game they could in order to win - even if those tricks are not actually played at the end. Those rising conservative elites will be more wiling to use those same tactics (including scrapping the filibuster if that is what it takes) in order to pass an unmoderated version of some future conservative agenda of hope and change.

I also think that the first inclination of conservatives in the face of Obamacare passing will be to fight for repeal. I think that will, if that is all it is, be a mistake. Even if Republicans win control of Congress, the presidential veto will prevent any substantive repeal, and in any case, the new legislation will create interests over time that will make a return to the status quo ante more and more difficult. Better to focus on the bill's many flaws and focus not so much on a repeal, but on a better alternative policy.

Pete you may be right on the substance, particularly prior to Obama leaving in 2012, but the slogan is nonetheless going to be:

REPEAL IT.

You will see on bumpers everywhere.

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