TPM Reader TW:
I was hopeful in reading the staffer perspective that I’d learn why this was not the face-palm outcome it’s being cast as. I found an attack on a straw man (that progressives were advocating for the elimination of all minority tools), a sweeping admonition against any reform that shifted burden toward the minority (are we to suddenly forget Harry Reid’s repeated use of the word “abuse”?), and even a bizarre and incoherent claim that other minority tools would effectively nullify the effects of the filibuster reforms we wanted. So which is it, sacrosanct or inconsequential? After many months of hearing the Democratic leadership talk of filibuster abuse driving dysfunction, and after learning that the majority of sitting United State Senators, presumably just as cognizant of the traditions and implications of the filibuster as anyone else, were prepared to vote for significant reform, this outcome needs a better explanation. You told us this was a big problem. You told us yesterday that you had the votes to fix it. Were we played, or were you?
TPM Reader AS:
Another point not made is that were the Senate a majority-vote body in the 113th Congress, there would be considerably more opportunity to highlight House Republican intransigence.
If the president advocates for a (for example) gun control bill, and the Senate passes such a bill, would it make the House GOP magically support it? No, but relentlessly highlighting measures that have significant popular support, have already been passed by the upper house and would be signed by the president is strong campaign fodder for the 2014 midterms and beyond.
Frankly, the email from the Senate staffer is a quintessential example of the general obliviousness of Democrats invested in Beltway culture and comity.
TPM Reader DE:
With all due respect to your Senate staffer, the e-mail you received reads like excuse-making, not a serious public policy case for the filibuster.
And that’s because there isn’t one. Nobody denies that protecting minority rights is important in our political system. But the filibuster is a completely arbitrary means of doing it. It doesn’t protect minorities qua minorities. It doesn’t protect blacks. (Far from it— it harms blacks.) It doesn’t protect Hispanics. It doesn’t protect gays. It protects whatever semi-random assortment of states is represented by 41 Senators from one party (which, in practice, often means conservative Southern whites). And it protects the ability of one Senator, no matter how much of an extremist, to delay legislation. Selectively protecting certain minorities who are lucky enough to have their interests coincide with a partisan Senate minority of 41 Senators or more, or whose concerns are picked up by a sociopathic crank Senator who is willing to hold the country hostage to his or her demands, is not protecting minority rights. The filibuster is simply not anything like the Voting Rights Act or the Bill of Rights or even judicial review, and defenders are not being honest when they draw that analogy.
And once that argument is disposed of, everything else in the staffer’s e-mail boils down to two purely pragmatic points that offer no justification on the substantive merits for allowing a filibuster — that at some points of time the filibuster can be and has been convenient for liberals, and that abolishing the filibuster would not magically allow legislation to pass without Republican support. Even if we decide that pragmatism should trump the principle that the filibuster is offensive to democratic rule and only randomly protects minorities who have a compelling claim to protection, these pragmatic points are not persuasive.
It is true, without a filibuster, George W. Bush would have been able to get even more conservative legislation and nominees through Congress. But I don’t think it is even arguable that overall, the filibuster has demonstrably favored conservatives. You can make a list of laws that would be in place right now were it not for the filibuster— a stronger stimulus, card check, the public option, etc. And in the past, what were the most famous uses of the filibuster? To stop or delay civil rights legislation. And theory confirms that this would be true. After all, liberals favor an activist and progressive government. Thus, a legislature that can more easily enact legislation is on average, in the long term, going to favor liberal ends.
As for the second pragmatic point, that the Republicans control the House right now and won’t pass liberal legislation anyway, I think that the very fact that your correspondent makes that point shows that he or she does not understand why liberals and the base of the Democratic Party are so upset about the filibuster. It isn’t just about right now. It’s about creating the conditions so that future governing majorities can enact legislation. We want to be sure that the next time Democrats do have a House and Senate majority, we can pass liberal legislation. Indeed, we also want to make sure that the next time we have 60 votes in the Senate, someone like Joe Lieberman doesn’t have a de facto veto power. And by the way, while it is true that it is hard to get cooperation from the House Republicans on legislation, the filibuster gives them a very easy excuse for not peeling off and supporting Democratic bills— if they are going to get filibustered in the Senate anyway, there is no real reason to vote for them. It’s not inconceivable that with no filibuster, more bipartisan legislation will pass the House in the long run.
I should add that even conservative Democrats could benefit politically from removal of the filibuster. With the filibuster in place, every Democrat is needed in every vote, which means that red-state Democrats have to be whipped to take tough votes. Without a filibuster, we could pass laws with 50 Senators and the Vice-President, allowing those Democrats more room to peel off and vote no if it is necessary to secure reelection.
One final point. I also don’t think your correspondent understands how bad this all looks. This entire process has gone on in secret, after Harry Reid announced that he had concerns about the filibuster. And now, what is coming out is that they are agreeing to changes that are basically entirely cosmetic, on an issue the base cares a lot about. I think a lot of liberals and Democrats will conclude, and have reason to conclude, that the fix was always in, that you have a bunch of Senators who, in the end, love the filibuster (because it gives every individual Senator a potential de facto veto on legislation) and who are just putting on a show for their base and throwing them a symbolic bone on an issue on which they have no intention of actually enacting substantive changes. This sort of thing has the potential of creating a huge rift between Senate Democrats and the party base, which could manifest itself in primary challenges and the like down the line. I would imagine that in many blue states calling for an open, up or down vote on the nuclear option to end the filibuster could be exactly the sort of thing that could fuel a successful challenge to a sitting Democratic Senator. Even if, in the end, Reid doesn’t have the votes to do what the base wants, I think the base is at least entitled to an actual open, public floor vote on the filibuster. We are entitled to know where everyone stands. If the arguments for keeping the filibuster are as great and compelling as your correspondent seems to think they are, let the Senators who espouse them make the case openly so that Democratic voters will have the opportunity to evaluate them and, if necessary, make it be known that a pro-filibuster stance is unacceptable to them.
TPM Reader DS:
One more short point the responders missed. The most troubling passage in the first senate staffer email hinges on the last word, “Is the progressive community oblivious about what happens when the minority has no tools to prevent majority excess?” The real question at the heart of this is the word excess, and WHO DECIDES on what counts as “excess.” As long as there is a thing called “excess” that can be used to stop progressive legislation, opposition interests will scream it as often as possible. The goal is to have a functioning government, and all opponents of that need to be called out because that is their goal.
TPM Reader AD:
I read the letter you posted defending the Reid-McConnell deal on filibuster reform. I think it fundamentally misses the point.
The argument that thwarting future right-wing initiatives via the filibuster is theoretically valid, I suppose, but fundamentally flawed. Functioning government is an ideological goal for Democrats and liberals, not merely a procedural one. Things that keep government from functioning well only hurt the progressive cause. Some of those things, like The Republican Party’s existence, are beyond our control. Others, like the filibuster, are not. I’m sympathetic to the argument that allowing more deliberation was central to the Senate’s initial design. Fine. Adopt Tom Harkin’s gradual decrease of votes needed for cloture. That allows for a lot of deliberation and even delay, but still allows things to happen after a fashion. This package doesn’t even make conference reports immune from filibuster. Better than nothing, but barely.
Also, I find it rich that the defense of filibuster defenders is that it would help keep progressive interests safe during times of Republican rule. It sure didn’t during the Bush years. Social Security “reform” was killed by internal GOP dissent, filibustering was never used on something like Iraq funding, and Dems even rolled over on filibustering Janice Rogers Brown’s nomination to the D.C. Court of Appeals. Democrats like to think they play this game as tough as Republicans do, but they don’t, and recent history confirms it.
David Kurtz is Managing Editor and Washington Bureau Chief of Talking Points Memo where he oversees the news operations of TPM and its sister sites.