The Sunday Editorial: Fix the Filibuster, Fix Washington
WASHINGTON, DC (The MPJ) — The hat’s gotten old. One party proposes a new piece of legislation or person to head a department, the opposing party declares, with utmost certainty, that person or policy will ruin the nation, and turn us into the annex of some horrible, other country. The person or policy may be the very thing that will save our nation, or make everyone a legitimate millionaire, or at least keep millions of us from dying of some horrendous cause…but it’s evil because the “other party” proposed it.
We’ve seen this trend for decades of course. This isn’t, really, anything new. But there is a new element about it. The constant use of the filibuster. Since 2006, and even more so since 2009, it’s been used less as a tool to protect minority interests, but as a tool to allow the minority to rule as if it were the majority. And it’s gotten old.
According to the book Congress Reconsidered, by Lawrence Dodd and Bruce Oppenheimer, the use of the filibuster has grown, being used on 8% of legislation in the 1960s (or, roughly, once per Congressional term) to 70% in 2009. That is, today, the filibuster is used more than a true vote by a significant margin.
This trend has two primary causes that can be traced to two very different times. The first change dates back to 1975. That’s the year of the so-called “Gentleman’s Agreement.” Prior to that session, filibusters in the Senate required someone to be on the floor of the chamber, beating a piece of legislation into submission with his or her words. No other business could be conducted until either cloture (a vote to end debate) could be invoked with a vote of 67 senators, or until submission was achieved and the bill died. Think Mr. Smith Goes to Washington (which, if you haven’t seen this, it’s highly recommended for an optimistic glimpse at how Washington has never…ever…worked).
The second catalyst was the hardening of party positions in the last ten years. One could say that this really began after the “Republican Revolution” of 1994, when then-Speaker Newt Gingrich (R-Georgia) forbid party members from living in Washington (and thus preventing legislators to get to better know each other during off-hours). But, in earnest, it began sometime during the George W. Bush administration when both parties began a greater push toward ideological purity.
Today, the filibuster is used at such a ridiculous rate, more than a quarter of presidentially nominated positions remain vacant. Since all Cabinet-level positions are filled, and all Supreme Court seats are taken, these are all second-level appointments. Federal judges, Deputy Department-Chiefs, leaders for lover-level agencies, and the like. We’re not talking about filibustering transformative pieces of legislation like Civil Rights or Supreme Court nominations these days (since those filibusters go without saying). We’re filibustering budgets, budget amendments, and other small-ball measures.
So what’s the fix?
FROM THE LEFT (by: J. Metzger)
It’s time to go back to pre-1975 rules. Simple enough.
The filibuster is an important concept to the way American legislates. We have seen, more and more lately, that legislative majorities can overreach in arenas where there is no filibuster. Look at Wisconsin, Ohio and Michigan for example. With one party in control of both houses of these states’ legislatures as well as their respective governor’s mansions, there’s no check to majority power. Yes, the majority should usually get what it wants. The reason majorities are made is because the voting public says they agree with them more than the minority. Simple enough.
But majorities can have unpopular goals and unpopular means by which to achieve them. That’s where the filibuster comes in.
At the same time, as we’ve seen, filibusters can easily go overboard if made too easy to implement. That’s the case in Washington now. Party positions are so hardened, it’s nearly a miracle these days to bring in opposition-party votes on a bill. And when they do, they’re often referred to as a pejorative “Gang.” For example, take 2005’s “Gang of 14,” seven Democrats and seven Republicans, that agreed to end the filibuster of some judicial appointments in order to preserve the use of the filibuster on judicial appointments. Or 2009’s “Gang of 6,” three Democrats and three Republicans, that worked on negotiating a compromise deal on President Obama’s health care reform effort. In both cases, those groups were considered traitorous, or at the least anti-party-unity. In the latter case, their efforts failed.
So the solution I propose is returning to the pre-“Gentleman’s Agreement” rules. Cloture votes go back to two-thirds vote (67), bill tracking goes back to one-at-a-time (meaning all business halts until the matter is resolved or defeated), and filibustering senators have to stand before the American people, and either explain their position at (exhaustive) length, or at least read us the phone numbers and addresses of every Tom, Dick, and Harry in the Metro-DC area. We don’t know who they are, but we may like to call or write them at some point in the future.
But if you have to work to block legislation from the minority position, it will happen less often, and will only happen on the pieces of legislation that genuinely cause great harm from the minority view.
It’s either that, or continue the paralysis in Washington. I don’t know about you, but I’ve had enough of that.
But just reading this and agreeing with this isn’t going to be enough. Next year is an election year. We want you, the reader, to forward this on to your Senator, and anyone else in your state running for Senate, and get their position on this on record. This change is going to have to come from within the Senate. And it’s the responsibility of you and I to put that in motion. It’s going to be a long and arduous slog, but it has to start somewhere.
FROM THE RIGHT (by: Nick Otto)
Unfortunately Mr. Metzger’s suggestion would be filibustered.
I like filibusters as they are now, since it impedes government’s ability to meddle. I’ll probably feel less strongly about that when the Republicans take control in 2012, but will be back in full support of drive-by filibusters when they squander it all on 1 or 2 ridiculous symbolic issues and the Democrats regain control in 2016.
A number of reasons for the increasing use of the filibuster were mentioned, but I think by far the most important is the increasing ideological divide in America. It isn’t just a case of disagreeing about how to achieve a common goal, we disagree about what that common goal should be. It should not be surprising that there is increasing animosity and polarization within the political body when the population it represents is also increasing in animosity and polarization.
I’m not sure that we really disagree with each other so much more than past generations, but they did not have the internet, 24 hour news organizations, and incessant polling to constantly tell them that other people in America had extremely divergent beliefs. I wonder if our increasing level of communications will lead to greater conformity, as humans are not conducive to difference; we tend to homogenize within our social group, and the internet has made it possible for us all to be in the same social group. We just happen to be lucky (?) enough to be alive while this new consensus is being hammered out.
Of course the problem with our split beliefs is that our nation is being tugged in opposite directions. Without the filibuster we would be jerked extremely far in either direction every few years. Constantly changing laws decreases people’s respect for those laws, and helps to keep us polarized; if a society’s rules stay the same for a long period of time people tend to accept them and move on more than when the rules can be changed on a whim every few years.
Abortion is an excellent example of this. 40 years ago it was a polarizing issue. Since then the polls have slowly moved in its favor, and other than a few fanatics few pay it any serious attention. Politicians make some non-committal “I’m against it except when I’m for it” statement during the election and then ignore it while in office. If abortion were up for grabs every other election cycle, rather than requiring many election cycles until enough Supreme Court justices were replaced, the numbers would not be changing on it and it would still be a major issue in elections.
Easy access to filibusters means our legislative laws can more easily tap into this process of acceptance to move towards a new national consensus. Without the filibuster we would be getting radical swings like nationalized healthcare (or its removal) every few elections.
Good lord, Otto, that was every bit as a thoughtful as it was sarcastic! Of course, isn’t this debate at least as old as the nation itself? Otto, you’ve got the classic Federalist line, albeit in a somewhat modernized context: government should be just unwieldy enough to prevent the government from taking too much action.
Justin, you’ve taken the anti-federalist approach, and the Lincoln era Republican approach of granting to the federal government the power and authority to make things happen.
It’s funny how shifts in the major issues facing our country seem to require that we lean more heavily towards one of these ideologies or the other, but I don’t think the case can be made that one is always preferable to the other. For example, in the years prior to the emancipation of the slaves (not just those in the rebellious South), a strong federal government imposing its morality on the states was a good thing. The whole history of Civil Rights really runs with that same theme.
On the other hand, the federal government’s aggrandizement of power through an overly liberal use of the commerce clause and a rather restrictive view of what constitutes the “Police Power” and traditional authority reserved to states has led to fairly absurd circumstances, such as the legalization of medical marijuana in some states while the drug remains fully outlawed by the federal government (which really has no good Constitutional authority to do so). So-called dispensaries, pseudo-pharmacies where patients can purchase their pot, are left with an obligation to pay taxes to the federal government, but because their income stream is illegal from a federal standpoint, they have no choice but to lie on their tax returns or face confiscation of all of their assets by the DEA.
Considering that marriage has also long been a matter traditionally reserved to the states, it is somewhat ironic that we see the modern Republican party, typically more federalist in their leanings (i.e., pro states rights), are the ardent supporters of DOMA, an act which is utterly anathema to the parties political viewpoint, albeit perfectly in line with it’s moral ideology.
Ultimately, I agree to an extent with the Federalists, that limiting the federal government so as to allow the states to take actions on their own is a good thing. The states are excellent places to test out new legislation and ideas, and what works would hopefully spread to the other states. On the other hand, history and experience has taught us that states have an awful tendency to abuse their power and authority at the expense of individuals. I believe this problem was foreseen by George Mason, if not some of our other “founding fathers”, and is why we have a Bill of Rights.
The dilemma, then, is simply this: how do we know when to enable the federal government to act in such a way as to undermine the states? The truth is, we don’t. We also don’t have anything near the scale of Slavery to make the answer seem so clear (in retrospect, anyway. Obviously, people couldn’t see the issue quite as we can in hindsight). Is preventing the scourge of Marijuana a vital, national interest such that the states should be subordinated to the federal government on the issue? Probably not. But really, does it matter? Is anyone going to take up arms in the name of grass? I sincerely hope not. So, how this balances out may be an annoyance to some, it does not appear as though a fundamental right is at stake.
DOMA and the same-sex marriages it effectively nullifies as between states may be a different story. Should the federal government be involved here? From a purely legal standpoint, not in the way it has. The states have the right to define marriage for themselves, and that should be beyond question. The only time the federal government should become involved is when the states are violating Constitutional rights, seeing as we now require that states not violate our rights, under the Constitution. Isn’t this where the federal government has shone in the past, demanding that states not violate the constitutional rights of members of society during the civil rights movement? I’m not saying that the actual grievances are of the same gravity, in fact, I don’t know whether or not there is a right under our federal Constitution for same-sex couples to marry. I think there should be, but I’m not trying to argue my beliefs in that regard. I don’t think the federal government could or should force states to grant same-sex couples the right to marry, that’s within the purview of the state. DOMA merely stands as a federal blessing to the states to violate the full faith and credit clause (is that the right one, it’s been a few years since ConLaw), which is the exact opposite of what the federal government should be doing.
In the end, allowing the federalists a complete victory effectively turns the federal government into the United Nations- an organization which would have a two word entry in the Hitchhiker’s Guide to the Planet: Mostly Harmless. The federal government as a protector of human rights has been, in history and experience, a vital part of the American Machine. On the other hand, power begets power. The polarization created by our two party system is nothing new. It is not decades old, it is centuries old. It is why we are a federally organized political unit, the United States of America, and not a centralized government with subsidiaries at the local levels. It is why, as Otto, you pointed out, we never swing too wildly from one side of the debate to the other.
Do we need easy filibustering to achieve this? No. The system worked for years without it. Quite frankly, I see the 1974 filibustering agreement as politicians doing what they do best: Buying more campaign time and making themselves look better to their constituents. Make them work for their ideals. Make them do SOMETHING for %@$#’s sake.
For more on politicians, visit my blog at http://stinkingpolitics.blogspot.com/2011/06/june-2011-one-year-5-months-until.html
Happy Justin? I left a comment.