27 December 2012

Filibusters, then and now

According to Wikipedia, it was a contextual accident that led to the ancient legislative tactic of delaying votes with long speeches receiving a name that at the time -- the 1850s -- was associated with pirates and freebooters. William Walker, the American who overthrew a Nicaraguan government and briefly took over that country in the same decade, was known as a "filibuster." Since then, many people have viewed the classical delaying tactic as some kind of piratical hijacking of the legislative process. It's entirely legal, however, for between 1806 and 1917 the U.S. Senate had no reliable means of ending debate while Senators kept speaking. "Cloture" was introduced in the 20th century, but in order to prevent it from becoming a mere partisan tool it has always required a supermajority: two-thirds of the Senate initially, and 60 votes since 1975. Since the Democrats reclaimed Congress in 2006, progressives have urged another rule change -- the Senate can do this itself without amending the Constitution -- requiring only a simple majority to end debate. Republicans have resisted such reform while using filibusters more frequently to thwart Democratic plans. Justifying their resistance, George Will argues that the filibuster is one of the things that keeps the Senate from being a redundant echo of the House of Representatives. Will regards the filibuster as characteristic of the Framers' desire for limited government, although history shows that they had not anticipated what we call filibusters and that nothing of the sort occurred before 1837. He'd be on firmer ground arguing that, whether the Framers anticipated filibusters or not, the tactic is consistent with their idea of the Senate as, on some level, a more deliberative than representative body, one that existed to check the democratic impulses from the lower house. If the House represents the will of the people, the Senate, in theory, represents not just the states but also the wisdom of the nation's elder statesmen. As Will puts it, "98 percent of good governance consists of stopping bad --meaning most -- ideas." Historically, however, Senators have talked not just bad ideas to death, but indisputably good ones, delaying adequate civil rights enforcement for generations. One must be very conservative to suppose that anywhere between 51 and 98 percent of all "ideas" that take the form of legislation are bad. In Will's case, the columnist simply lacks faith in progressivism, the filibuster's nemesis. Only progressives, he argues, have a beef with filibusters, since they believe in swift rather than wise action. He does note that Republicans have sometimes practiced "situational ethics" on the subject, recalling the GOP's 2005 threat to forbid filibusters of judicial nominees. For the most part, in his account, overbearing progressives force the escalation of filibusters, which are "means whereby the minority can give an overbearing majority an incentive to compromise." Seeing things this way, Will affects surprise when filibustering Republicans are the ones accused of unwillingness to compromise.

Elsewhere in the column, Will writes that the filibuster "protects minority rights by allowing for the measurement of intensity as well as mere numbers." This is a somewhat confusing analysis, since he otherwise argues for the filibuster as a check on the intensity of progressive majorities. Perhaps there are different kinds of intensity in play, but the sort of intensity that fuels filibusters -- ideological fanaticism more than anything else in our time -- doesn't seem conducive to the compromises Will expects to result from their use. Nor does "intensity" sound equivalent to the wisdom that justified the Senate's existence for many Founders. Will is grasping for arguments in the face of an alleged threat from Sen. Reid, the Majority Leader, to use a parliamentary tactic to force a rules change on January 1 that would reduce the cloture requirement to a simple majority. On one level, Will's concern makes sense to the extent that the Senate is something besides an echo chamber for the House, though the relations between the two houses needn't automatically be adversarial, either. If, however, for reasons progressive or otherwise, you believe that the only legitimate check on the will of the people as expressed through their representatives is the Constitution -- if you believe, as a conservative might be expected to, that "intensity" is no substitute for a proper understanding of the fundamental charter -- you may wonder why, in our irreversibly more democratic age, a Senate elected by the same people as the House, whose members show no obvious superiority in intellect or experience to House members -- ask Republicans their opinion of Sen. Obama, after all -- should be deferred to when some members intensely oppose measures endorsed by multitudes more. My point isn't that one person can't be right when opposing millions, but my question is: has the Senate ever really represented wisdom? Does the Constitution really provide for wisdom's representation in any branch of government? If Will wants us to assume that Senators are entitled to some deference from the House, or that even a minority of Senators (or one of them) are entitled to deference from the majority, on a presumption of wisdom, hasn't this arch-conservative and skeptic of politics put himself in the position of ascribing wisdom, on faith, to the winner of a popular election? It's possible to argue that there's been no concrete justification for filibusters since 1913, when the election of Senators passed from state legislatures to the people. From that point Senators were no different from Representatives, except for representing larger areas and, usually, larger populations. Would Will argue that Senators are wiser because even more of the rabble vote for them? I don't expect him to, but for him obstructionism is a fetish, the necessary guarantor of limited government. For him, limited government may always be a good thing. The rest of us recognize some necessary limitations without seeing limits as ends unto themselves. The Senate should not be redundant, but if the filibuster is the only thing preventing its redundancy, perhaps the status of the Senate itself should be up for debate.


Anonymous said...

All governments, by their very nature, are limited. What we should be asking is; "What ought the limits to be?" and "Who decides what the limits on government are?"

The reasonable man intuitively understands that an efficient government is one which is flexible enough to handle any crisis which may arise in a quick, decisive manner.

Rather than constantly whining about "smaller gubbermint", what we need to figure out is how to create a government in which cheats, thieves and liars don't rise to the top, while the honest, civic-minded man gets relegated to the trash bins of history.

Anonymous said...

Filibustering should be illegal. It is highly inefficient, counter-productive and a waste of taxpayer's money. It should come to this: a bill is proposed then anyone who has something to say regarding the bill gets their few minutes to state their opinion as to why it ought or ought not be passed. Then it gets voted on. Very simple and gets the job done.

It is the government's duty to get the people's work done. As it stands, our government is shameful.

Samuel Wilson said...

The Senate can make filibusters "illegal" anytime it wants, but a supermajority is necessary to change the rules, except on January 1 (some claim), though Majority Leader Reid didn't take advantage of this supposed opportunity today. It's probably too easy for Democrats to envision the worm turning to make such a major rules change for any short-term advantage.