During Barack Obama's first two years in the White House, liberal commentators devoted millions of pixels to denouncing the use of the filibuster by Senate Republicans. Others may have written more often about how a legislative minority's resort to arcane procedures to frustrate the will of the majority was an affront to democracy, but no one wrote about it more passionately than Hendrik Hertzberg of The New Yorker.
Filibusters, he argued
earlier this year, have become "as common as sunsets--and as destructive as tsunamis." The de facto requirement that no bill will be passed by the Senate without a super-majority of 60 votes means, in theory, "The minority can't quite rule, exactly, but it can, and does, use the rules to ruin." In practice, the result was that "dozens of ... worthy measures--all of which passed the House and had majority support in the Senate" - wound up rejected by Congress.
Such ringing, sweeping pleas for plain-old majority rule in our elected legislatures became awkward two weeks ago when the 14 Democratic members of the Wisconsin state senate decided to leave the capitol - and apparently the state - to prevent the 19 Republican senators from voting on Governor Scott Walker's proposals to reduce the power and prerogatives of the labor unions representing state and municipal employees. Ordinarily, a majority of 17 senators would be enough to provide a quorum in a senate with 33 members, allowing legislative business to proceed. The state constitution, however, requires 20 senators for a quorum to consider bills, such as Walker's, relating to the budget. (This super-majority of 60.6% is almost exactly the same as the percentage of U.S. Senators needed to break a filibuster.)
Consistency being the hobgoblin of little minds like mine, I've been hoping to see one of the filibuster's critics step forward to denounce the Fugitive Fourteen for resorting to parliamentary tricks to impede the will of the majority. That Democratic minority in the state senate can't rule, exactly, but appears determined to use the rules to ruin. As a result, a bill that passed the Wisconsin state assembly and for which a majority of democratically elected state senators clearly intend to vote languishes.
This week Hertzberg sets our minds at ease, explaining
patiently that the one thing has absolutely nothing to do with the other: "Liberals who applaud the Wisconsin senators' interstate flight have been
accused of hypocrisy, given that these same liberals indignantly reject
the undemocratic use of the filibuster in the Senate of the United
States. The analogy is as clever as it is flawed. The Wisconsinites are
not trying to kill the bill (they can't stay away forever); they merely
want to delay a vote in the hope of mobilizing public support for
compromise. And, instead of simply declaring an intention--the only
effort a modern filibuster requires--they have to do something;
wit, camp out in cheap motels at their own expense, away from their
families. They even have to forgo their own salaries: the Republicans
have halted direct deposit to their skedaddling colleagues' bank
accounts. If they want to get paid, they have to come back to Madison to
pick up a paycheck."
The argument is as weak as it is tendentious. Because the clock is always ticking in a legislative body, the distinction between delaying and trying to kill a bill has hundreds of shades of gray. The Wisconsin senators don't need to stay away forever - just long enough that the necessity of addressing other public business in a reconvened senate forces Walker and his allies to accept a "compromise" that is indistinguishable from a capitulation. Mobilizing public support is exactly what Republican senators wanted by running the four-corners offense against the health care bill in 2009, a tactic that seemed like it might make the difference when Republican Scott Brown won a surprising victory in a special election to represent Massachusetts in the U.S. Senate. The liberal chorus after that election did not call for Democrats to re-assess their approach to health reform in light of an electoral rebuke, but to redouble their commitment to passing the bill Brown had denounced as the central plank of his successful campaign.
The agonies of the skedaddled senators, living apart from their families and paychecks in cheap Illinois hotels, don't move the needle, either. This year's Democratic state senators, like last year's Republican U.S. senators, are playing the game according to the rules, taking advantage of its opportunities and forbearing its inconveniences. The reason the passionate denunciations of the filibuster never kindled the outrage of anyone outside the liberal blogosphere is that people have a basic grasp of fairness: the rules can be sixteen kinds of idiosyncratic, but if both sides have to play by the same
rules, the contest is fundamentally fair. Furthermore, in a country as closely divided as the U.S. has been for the past 20 years, procedural departures from strict majority-rule persist because politicians in the majority party can easily envision being in the minority in an election or two, and would rather be frustrated now than defenseless then.
Rather than embarrass themselves by insisting that fundamentally similar parliamentary procedures in Washington and Madison are decisively different, the filibuster critics would be better off acknowledging that their arguments were, all along, in the service of their policy preferences. The filibuster was wicked when it bottled up worthy bills proposed by Obama. By contrast, denying a majority the quorum needed to pass an "unworthy" bill, such as Walker's, reflects the highest ideals of deliberative democracy. Real candor about by-any-means-necessary polemics would be a big step up from sermons about procedural imperatives that magically stop being imperative the minute they stop being politically useful.
P.S. Mr. Hertzberg expands on his thoughts that the Democrats' refusal to provide the Wisconsin senate majority is not the moral equivalent of the Republicans' filibuster in a live chat
with New Yorker
readers. "What do you think the Wisconsin Senate Democrats should do now?" one asked yesterday. "I think they should stand firm and set an example of solidarity," Hertzberg replied, "a
virtue that has been nearly forgotten. If this drags on for more weeks,
I'd like to see those 14 state senators get together, go on the web, and
run a sort of classroom/seminar in the history and purposes of trade
I challenge readers who are already puzzling over the claim that frustrating senate majorities in Washington is abominable, while frustrating them in Wisconsin is heroic, to go on to the extra-credit question: If the redeeming virtue of the Wisconsin Democratic senators' decision to prevent a quorum is that they "merely" want to delay a vote on a bill that they can't kill, since they can't stay away forever, how does encouraging them to express the archaic virtue of solidarity by staying away for weeks [why not months? or until the 2012 elections?] in order to bring some proletarian realism to a computer screen near you add moral force to the distinction between the lack of a quorum in Madison and the failure to invoke cloture in Washington? To further clarify matters, Hertzberg adds that "there really should be a way for people to help" the road warrior legislators who are paying their Motel 6 bills out of their own pockets. That
will help bring home the senators who can't stay away forever, and encourage the spirit of compromise.