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November 01, 2013 10:11 AM Decision Time on Filibuster Reform

By Ed Kilgore

Well, nobody can say senators didn’t have the time to think it all through. Three-and-a-half months after the temporary deal that enabled Senate Democrats to quickly confirm five executive-branch nominations, Republicans are blocking another such nomination—former congressman Mel Watt for director of the Federal Housing Finance Agency—along with the first of several nominations to the highly influential D.C. Court of Appeals.

The pairing means that any re-establishment of the earlier deal would involve an implicit if not explicit Democratic acceptance of the filibuster as a legitimate weapon in judicial nominations. In the past (most notably during the Bush administration), many Senate Democrats and liberal activists have argued that the lifetime appointments at issue in judicial nominations justify a right to filibuster.

But short of a Supreme Court opening, the impending battle over D.C. Circuit nominations is about a high-stakes as judicial nominations can be. The GOP’s aggressively idiotic “court-packing” argument for stopping these nominations, which very thinly disguises a Federalist Society-bred determination to keep Obama from “getting control” of the second most influential court in the country, has to be tempting Democrats to “go nuclear.” Could Democrats “go nuclear” on one kind of judicial filibuster but not another?

One of the reigning experts on this subject, Sarah Binder of George Washingon University and Brookings, has a WaPo op-ed expressing doubt that 51 Democratic senators can be held together for a direct assault on judicial filibusters. I agree, but hope fury at Republican obstructionism soon makes radical filibuster reform more realistic.

Regular readers know how I feel (filibuster delenda est!), but let me raise this in a broader context than is usual. All the endless and interminable and redundant whining we hear these days (sometimes in our own voices!) about partisan gridlock in Washington invariably revolves around demands for “deals” and “compromise”—which is actually music to the ears of the least compromising elements in Washington (hint, hint: the ones who shut down the federal government), who know that this false-equivalency framing of the problem gives them a huge advantage in ultimately getting their way. Indeed, when such folk have no plausible way to achieve their goals via elections, the obstruct-then-compromise-on-favorable-terms approach may seem the best and maybe the only way to win.

So what if all the people upset about “gridlock” took the different route of making it easier for majorities to govern? Might not that improve the horribly eroded concept of democratic accountability, while also making all the disruptive tools of minority obstruction, including filibusters, government shutdowns, debt default threats, and deliberate sabotage of existing legislation, less powerful and less tempting?

I’m not holding my breath for the grand poohbahs of bipartisanship in pundit-land to move en masse towards forceful advocacy of filibuster reform; for the most part, they seem to cherish the hoary and disreputable tradition and even ignore that today’s Republicans have transformed the Senate by making it semi-routine. But anyone who wrung his or her hands over the government shutdown needs to reflect once again that we will never transcend dysfunction in Washington without one of three things happening: (1) perpetual surrender to the obstructionists and hostage-takers; (2) more regular electoral landslides; or (3) radical filibuster reform, perhaps combined with steps to make it easier for legislation supported by majorities in the House to get to the floor.

Those are the issues that Harry Reid and indeed, the president, ought to be raising in developing their strategy for dealing with the next wave of filibusters, if only to increase their own leverage in securing a “deal” short of radical filibuster reform.

UPDATE: While my post is mainly intended to challenge the self-styled enemies of “gridlock” to stop supporting “traditions” like the filibuster that encourage election-losers to obstruct government and take hostages, I’d also add that the many observers (mostly on the Left) who have criticized our basic constitutional framework for making gridlock inevitable have a special responsibility to support radical filibuster reform. The United States is not going to adopt a parliamentary system of government, now or at any time in the future. As Ryan Cooper argued recently at the Plum Line, filibustering and other methods of obstruction have become central to the ongoing disability of the system we actually have. We can imagine alternative utopias, or resign ourselves to dysfunction, or fix the problem. So Harry Reid and the Senate Democratic Caucus’ decision on how to proceed on filibuster reform is a high-stakes decision for all of us.

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.

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