24 January 2013

The filibuster endures

Majority Speaker Reid has reached a compromise with Minority Leader McConnell that will result to some changes in U.S. Senate procedure but not the result most desired by progressives: the elimination or even the significant weakening of the filibuster. Reid will not consider changing Senate rules to require less than 60 votes for the cloture that stops filibusters. He implies that the filibuster is one of the things that differentiates the Senate from the House of Representatives and states more plainly that the Senate "shouldn't be like the House." While the Framers did differentiate sharply between the two houses of Congress, it will be recalled that the Constitution itself does not mandate a filibuster and that the Framers didn't have the filibuster in mind as one of the Senate's distinguishing features. The Senate remains distinctive as the house where the states are represented on an equal basis, and it retains distinctive functions assigned it by the Constitution. Whether members' enhanced capacity for obstruction is a desirably distinctive feature is debatable.

Cynical observers suggest that Reid has considered the possibility of Republicans taking the Senate in 2014 and doesn't want to deny himself, as a theoretical minority leader, the ability to block GOP legislation with the same tactics Sen. McConnell uses now. The cynicism of this observation is not unjustified. The alleged idealism that sees the filibuster as an aid to genuine deliberation towards compromise is unjustified cynicism. The filibuster rule is a vestige of concurrent-majority theory, the belief that one interest group shouldn't have the right to run roughshod over others simply because it has a numerical political majority behind it. It has grown repugnant to many Americans in a time when numerical minorities -- in the form of political parties -- have in effect claimed for themselves the theoretical rights of interest groups. The implicit argument of filibuster apologists is that any act of a mere numerical majority oppresses the minority -- or at least that you can tell it's oppressive if the minority protests. Political minorities claim "special rights" in imitation of the last century's civil rights movements, as if their ideologies form a group identity equivalent to those formed by religious faith or sexual preference, if not to those formed by genes. Not too long ago, filibusters were identified with a particular interest group: the white segregationists of the South who used every parliamentary tactic available to block legislation against their power to segregate and discriminate. While progressives may imagine that they're dealing with essentially the same people today, the filibuster's constituency is less corporeal, more theoretical. Its idolaters see the filibuster as a fundamental tool for limiting government, even if only by slowing it down. For partisans it's a tool of convenience, deemed indispensable as long as we have political parties with equal opportunities to oppress each other. Why don't all these reservations justify a filibuster for the House of Representatives? Why shouldn't the House be more like the Senate in this regard? Are not numerical political minorities as subject to roughshod oppression, and as in need of procedural protection, in the lower as in the upper house? Or do even today's most dogmatic or pathological politiphobes allow some scope for the actual voting majority and its representatives -- the nearest thing we have to an embodied body politic -- to govern as it pleases within constitutional but not ideological bounds? If they can condone that in the House, they can only justify the different procedure in the Senate by proving that the filibuster is as essential to that body's constitutional identity as Sen. Reid assumes.

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