The reaction of Senate Democrats and progressives generally to Rand Paul’s “talking filibuster” yesterday looks to be paradoxical. On the one hand, it has (if only in contrast to the non-talking-filibuster being simultaneously deployed to block the confirmation of a circuit court judge) revived interest in the need for filibuster reform. On the other hand, it’s creating a lot of sentimental noise, much of it invoking the ghost of Jimmy Stewart, about “old-fashioned” filibusters like Paul’s. The fact that many progressives (mostly outside, not within, the Senate) empathize with the substantive case Paul was making against broad legal claims of executive powers to kill citizens suspected of terrorism without due process has added to the temptation to bring back Mr. Smith.
I have to admit—although I, too, am glad Paul forced the administration to plainly disclaim any power to kill non-combatant U.S. citizens on U.S. soil on “terrorism” grounds—the spectacle had the opposite effect on me. It confirmed my membership in the ranks of those who think filibusters of every sort should be banned.
Why? Well, it’s becoming clear all the jesuitical efforts to distinguish “good” from “bad” filibusters really just come down to whether one approves or disapproves of the cause involved. If Ted Cruz conducts a “talking filibuster” of, say, EPA nominee Gina McCarthy because she is a conscious or unconscious agent of the United Nations seeking to implement its godless socialistic “Agenda 21,” would progressives applaud because he’s honest about his objections to the nomination? Would giving him unlimited control of the Senate floor to spread his poison amidst cheers from right-wing radio talk hosts and bloggers, and to the delight of his fundraisers, remind anyone of Jimmy Stewart? I sorta doubt it.
Hypocrisy over the filibuster, of course, is a bipartisan phenomenon. You could make a good case that filibusters of judicial nominees are more justifiable than other forms of the practice on grounds that they deal with lifetime appointments. That didn’t keep Senate Republicans—now the most filibuster-prone body of senators in the history of the chamber— from threatening the “nuclear option” to make such filibusters impossible just a very few years ago, but also didn’t justify Democratic glamorization of the practice (i.e., the Alliance for Justice’s Schoolhouse-Rock-inspired “Phil A. Buster” campaign) either.
Even if you reject the argument (made again today at TNR by UCLA’s Adam Winkler) that filibusters are unconstitutional, no one doubts the practice is a figment of Senate rules that could be abolished instantly with no violation of its original purpose in the scheme of the Founders. Those who claim abandoning the filibuster would make the Senate just like the House ignore the facts that the upper chamber’s two-members-per-state nature makes it vastly less representative than the House, and that the availability of filibusters is hardly the only major difference in rules and customs between House and Senate.
I know there are and will always be progressives who favor the filibuster as an unfortunate but necessary curb against the destructive tendencies of temporarily powerful right-wing congressional majorities. But let’s not forget that if Republicans had succeeded in winning the White House and even the barest Senate majority in 2012, they clearly intended to seek enactment of the Ryan Budget—the most sweeping and radical legislative package since the Great Society that it sought to unravel—via budget reconciliation rules, which short-circuit filibusters entirely.
So filibusters are no reliable safeguard against the destruction of progressive legislative legacies. What they are, however, is a tool for frustrating popular majorities and making any coherent agenda for governing impossible. Thanks to the filibuster, Democrats cannot seriously contemplate action on the much-applauded initiatives contained in the president’s second inaugural address until after 2016, and even then it’s a stretch. But beyond that, it’s inherently offensive to any notion of accountability in government, as Ezra Klein argued in 2009:
The clear accountability of passing laws and being judged on their success is far superior to the confusing campaigns that result from promising the passage of laws and then failing to surmount a filibuster. Strengthening that crucial relationship between cause (one party got elected) and effect (they passed bills) is not only better from the perspective of assuring action on problems. It’s also a road to a better-informed citizenry that knows who to blame, and who to reward, for the condition of the country and the performance of the most recent Congress.
So let’s don’t get too caught up in the drama of a single senator forcing a discussion of the legal authorization for a drone program blind us to the general menace of the filibuster, or create too much optimism about “reforms” of the practice that just limit its most egregious abuses.
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