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March 07, 2013 3:28 PM Against Filibuster Sentimentality

By Ed Kilgore

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.

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.

Comments

  • Gandalf on March 07, 2013 3:42 PM:

    For crying out loud! So you think for one second that the govt wouldn't hesitate to kill terrorists by any means at their disposal if they were in the act of committing some kind of act to kill people? But if drones were involved you'd start having nightmares about Arnold Schwartznegger and an army of unconrolled robots running around the country killing innocents without any regard for human descency?
    Rand Paul is unrelenting major league idiot spawne3d by an idiot.

  • cwolf on March 07, 2013 3:47 PM:

    Well, they'll drone ya when you're trying to be so good,
    They'll drone ya just a-like they said they would.
    They'll drone ya when you're tryin' to go home.
    Then they'll drone ya when you're there all alone.
    But I would not feel so all alone,
    Everybody must get droned.

  • c u n d gulag on March 07, 2013 3:51 PM:

    The filibuster rule, is in the eye of the beholder.

    The party in the minority loves it - the party in the majority hates it.
    Until that changes.
    As it inevitably has, and will.
    And then the parties roles are reversed.

    Prior to the first filibuster, in 1837, a lot of bad laws got passed.
    And after the filibuster became something besides a theory, a lot of bad laws got passed.

    I still lean towards the "talking filibuster" side of the debate.
    I'm totally against the way it's being used now.

    Now, if you were to tell me that you wanted to end the "talking filibuster," because you wonder why we should give egotistical and pompous Senators yet another opportunity to bloviate in public, then I might side with you.

    This may be suicidal, and probably is, but maybe if "We the people" had to suffer the FULL consequences of Republican laws, un-mitigated, maybe the sooner "We the people" will realize just how bad the consequences of those laws really are.

    Of course, some, if not all, of those consequences might be fatal to a whole bunch of people.
    And it's suicidal, because one of those people will likely to be me.

  • JCtx on March 07, 2013 3:58 PM:

    This is not mentioned enough but the happy ending in Mr Smith Goes to Washington only came about because the villain in the movie had a conscience and gave in to Mr Smith. If Mr Smith were to filibuster for his cause today, Republican'ts would gladly let him die rather than give in to his cause.

  • JCtx on March 07, 2013 4:01 PM:

    This is not mentioned much but in the movie Mr Smith Goes to Washington, the only reason that Mr Smith won was because the villain in the movie had a conscience and gave in to Mr Smith. If Mr Smith were to filibuster for the same cause today, there wouldn't be a happy ending because Republican'ts would gladly let him collapse on the Senate floor before giving in to his cause.

  • boatboy_srq on March 07, 2013 4:25 PM:

    There is a distinction between Paul's filibuster (yesterday) and earlier GOTea bad behavior.

    Yesterday, Paul got up in front of the Senate, on CSPAN, and made an ass of himself. Whether you approve of his stand or not, he was willing to go that step, highlight his unwillingness to work with the administration, and stop Senate business - publicly.

    All the prior GOTea temper tantrums have amounted to one or more Senators hinting that they might go so far, and that has been called "filibustering" time and again. Each time before today, a Teahadist "filibuster" has been silent, invisible, and totally under the radar of the collective consciousness. By allowing that kind of behavior, the GOTea, the MSM and all the punditry have been able to whinge about a "do-nothing Senate" since the evidence of whose fault the inaction was has been far more difficult to find, impossible to televise, and totally opaque to the citizenry.

    THAT is the difference.

    I don't support Paul's positions. And I'm not glad that Paul filibustered. But I am much more than relieved that finally somebody among the GOTea is willing to get up in front of Senate, Cameras, public opinion and all and put a face and voice to all the obstructionism.

  • Robert on March 07, 2013 4:47 PM:

    All this highfalutin' rules talk annoys me. I'm an American who likes to get shit done! And the people's business is not getting done. So fix the fillbuster democrats, and we'll worry about the blowback IF the republican party ever rises to majority status again. We used to be a nation that invented the future, not the nation that fears the future.

  • Robert on March 07, 2013 4:51 PM:

    All this highfalutin' rules talk annoys me. I'm an American who likes to get shit done! And the people's business is not getting done. So, democrats, fix the filibuster, and we'll worry about the blowback IF the republican party ever rises to majority status again. We used to be a nation that invented the future, not the nation that fears the future.

  • smartalek on March 07, 2013 5:22 PM:

    Put me down as one more voice for abolition: end it, don't mend it.
    It's at this point just another of the manifold mechanisms by which the Publicans, and far too many Dem's, are able both to circumvent the will of the American people, and to avoid responsibility and accountability for doing so.
    My preference might be very different if there were even a vestige of decency, sanity, intelligence, and/or wisdom remaining among the current crop of Publicans.
    But there aren't, so it isn't.

  • alcatraz on March 07, 2013 5:30 PM:

    I wouldn't mind if Ted Cruz filibustered for hours talking about black helicopters and Agenda 21, because he would be on record talking to the American people, much like the Jim Crow supporters of yesteryear. I realize it would be a colossal waste of time in the short term, but the trend would probably soon cease because it would wake people up to the limits of our public discourse.

  • Doug on March 07, 2013 6:37 PM:

    While I wouldn't be THAT upset if the filibuster was abolished, I still prefer to retain a "talking filibuster". Face it, any rule can be abused and if the Republicans don't have the filibuster to abuse any more, they'll just find a different rule and misuse IT.
    What I DO like about a talking filibuster is that whoever's doing it has to get up there and talk, has to PUBLICLY oppose the passage of some piece of legislation and why. Personally, I really believe that a major reason so many "Repubican" voters STILL vote as they do is because they won't believe what a Democratic opponent tells them about the Republican they support. Fine, let the Democrats run videos of exactly what that Senator said on the Senate floor while trying to prevent the passage of some piece of legislation the (Republican) voter supports and the Republican candidate opposed and, surprisingly, which opposition wasn't mentioned in his/her latest plea for support/funds. And, yes, I do realize it can work the other way. So?
    When a Senator mounts a filibuster against some legislation it sort of makes them position of that Senator rather public. I LIKE transparency...

  • Malatesta on March 07, 2013 6:40 PM:

    I've always been mystified by talk of the Founder's intent when it comes to defending the filibuster. Not only because in so far as they had such intent on the issue, they wanted to get rid of supermajority requirements, lest we become Poland. Have we really deified them so much that merely attributing things to them is supposed to show the rightness of something?

  • navarro on March 07, 2013 6:48 PM:

    despite mr. kilgore's gladness, i don't regard attorney general holder's note a plain disclaimer. unless the word "combat" was somewhere described in the course of the filibuster, i regard the note as a weaseling around the question. senator paul might be satisfied but i am not.

  • paul on March 08, 2013 11:13 AM:

    Talking about the filibuster as a hijacking of the democratic process seems disingenuous at best. We've got a body apportioned by 200-year-old boundaries rather than population, we've got so many campaign funds and PACs and super-duperPACs that it's hard to keep track of which companies a senator represents -- all these are way more of a deal than whether individual senators should be allowed to bloviate as long as they can hold out.

    Talking filibusters and 40 on-the-floor votes to keep them going.

  • Sean Peters on March 08, 2013 12:22 PM:

    Ok, look. I hate the filibuster as much as the next guy, and I'd totally be down with getting rid of it altogether. But that outcome is totally out of the question, politically speaking. I think we need to take what we can get - a somewhat watered down filibuster - and revisit the topic again if this measure isn't sufficient.

    To review the history: at the beginning of the session, there was an impetus to do something about the GOP's insane levels of obstructionism, but the response was to implement "reform" that amounted to extremely minor changes around the margin that essentially did nothing. The result: now pressure is building for further measures. So let's take another incremental step. If that doesn't work, pressure will build again. Just the threat of ending the filibuster might be sufficient to bring the GOP at least somewhat in line.

    This whole argument is very much reminiscent of that in favor of single-payer health insurance. Sure, that would have been vastly preferable to what we actually got. But it was never going to happen, politically speaking, so we got the best deal we could get. We need to take the same approach here.

  • gdb on March 08, 2013 6:55 PM:

    Kilgore finally says what I've been saying since 2008. And most Senate Dems and BHO still don't "get it".. Often using the tired old arguments exhibited by ..

    Sean... the outcome (getting rid of the filibuster) is out of the question only in your mind, not in Senate reality. It takes 50 votes + the VP. Easiliy done in 2009--- and it could have led to single payer health care if BHO really believed in reforming health care (In most matters, BHO's preferred policies are to the right of Nixon's). As others have noted, Repubs will do it in a heartbeat the minute they control the Senate-- and need to eliminate the filibuster.

    It appears you would have been or are pleased with the results of Munich and Yalta--- Hey, could have been lots worse. And all deliberate speed gets tiresome after over 200 years of first Southerners (of which I am one)and now Repubs gumming up the legislative works.

  • Peter on March 09, 2013 11:51 PM:

    The filibuster is clearly unconstitutional. (See the briefs and opinions in Common Cause v. Biden.) The Democrats should abolish it on a point of order.

  • Peter Fugiel, PhD on March 18, 2013 7:22 AM:

    The US is headed towards 400 million by 2050. The twenty smallest atates have less population than does California. While Madison thought that the new decentralized government would benefit from dual federal-state influences, the current imbalance among the states is creating fiscal imbalance. States with less than six million residents are being tempted to take more fiscal resources for themselves, then turn the senate into what the British House of Lords used to be, a reserve of anti-democratic posing. Those that pay the federal bill do not want to listen to small state leaders pretend that they aren't taking more for smallish states than their size should allow.