The Case for Busting the Filibuster
An astute book published in 2006, Thomas Schaller's Whistling Past Dixie, argued that to craft a presidential majority Democrats don't need the Southern vote. That may be true (although it turned out that Barack Obama made historic inroads in the South, winning three states there). But there is no way to whistle past Dixie when a non-Dixie presidential majority tries to get its program through the Senate. After 2010, we could have sixty-four Democrats in the Senate and still be in bad shape.
A filibuster-proof Senate, then, is a conceptual impossibility. Even with a hundred Democrats, a filibuster would still lock in a form of minority rule. Because among the Democrats there would arise two new subparties, with forty-one senators named "Baucus" blocking fifty-nine senators named "Brown."
Here's another argument for the filibuster: "If we get rid of it, we'll be powerless against the Republicans when they're in charge." That's why we need it, they say: we're waiting for the barbarians, for the nightmare of President Palin. People in the AFL-CIO tell me this even as the filibuster keeps the right to organize a union on ice and union membership keeps shrinking.
Or as a union general counsel said to me: "Everyone here in the DC office would be freaked out completely if we lost the filibuster. They think it's the only thing that saved us from Bush." Inside the Beltway, they all think it's the filibuster that saved those of us who read Paul Krugman from being shipped off to Guantánamo. Really, that's what many people on the left think. "If Bush ever came back, we'd need it."
Of course Bush, or a Bush equivalent, will come back--precisely because Obama and our side will be blocked by the filibuster. Obama is in peril until he gets the same constitutional power that FDR had, i.e., the right to pass a program with a simple majority (at least after Senator Huey Long finally ran out of words). But let's deal with the canard that the filibuster "saved" us from Bush. What's the evidence? Judicial nominations: that's the answer they give. Go ahead, name someone we blocked. Roberts? Alito? Of course there's Bork, whom we blocked in the 1980s. But we didn't block him with a filibuster.
Think seriously about whom we really stopped. Look, I'm all in favor of opposing atrocious right-wing nominations, and I admit that the filibuster, or at least the GOP's refusal to nuke it, did keep some appellate and district courts free of especially bad people. But I can tell you as a lawyer who does appellate work, who has to appear before these judges, it makes little difference to me if we lose the filibuster. All it means is that instead of a bad conservative, I end up with a really bad conservative. Either way, I still wind up losing.
I think I can say this on behalf of many liberal lawyers who appear before appellate courts: if we could give up the filibuster and get labor law reform or national health insurance, I'd put up with a slightly more disagreeable group of right-wing judges. We'll take the heat.
The fact is, as long as we have the filibuster, we ensure the discrediting of the Democratic Party and we're more likely, not less, to have a terrible bench.
Sure, sometimes liberal Democrats put the filibuster to good use when Republicans are in power. Sure, sometimes a liberal senator can use the filibuster to stop a piece of corporate piracy. It's impossible to prove that the filibuster never does any good. But the record is awfully thin. Look at all the financial deregulation that Senator Phil Gramm and leading Democrats like Larry Summers pushed through only a decade ago. The filibuster did not stop their effective repeal of the New Deal, but it would block the revival of it today.
On the other hand, Republicans and conservative Democrats use their filibusters on labor, health, the stimulus, everything. They can and will block all the change that Obama wanted us to believe in. And even when they lose, they win. For example, when we say that after a major rewriting of the stimulus package--a rewriting that seriously weakened the original bill--it "survived the filibuster," what we really mean is that it didn't.
But let's turn to the final objection: "No one in Washington cares about this. It's not on the agenda. It's a waste of time even to discuss it. What you're talking about is impossible."
What Washington insiders partly mean when they say this is, With a filibuster, any senator can stick up the Senate, and what senator is going to turn in his or her sidearm by giving up the right to demand sixty votes? That's why they're raising a million dollars a day. Otherwise, they'd be peacefully serving in the House. The right to filibuster is what makes each of them a small-town sheriff. That's why it would take massive marches in the streets to force them to give it up.
Indeed, it's hard to imagine how bloody the battle would be. The last time anything so traumatic happened on the Hill was in 1961, when the bigger procedural bar to majority rule was not in the Senate but the House. John Kennedy had just come in, and it was clear that his New Frontier program (we still didn't have Medicare) would go nowhere because of the power of the House Rules Committee chair, the now forgotten "Judge" Howard Smith. Kennedy had to enlist the Speaker of the House, Sam Rayburn, to break Smith's power to stop any bill he disliked from leaving House Rules. In the end, the battle to beat Smith probably killed Rayburn, who died later in the year.
It was an awful power struggle, and many were aghast that Kennedy had thrown away all his capital for this cause. But had he not done it, there probably would not have been a Civil Rights Bill, or certainly not the full-blown version of the Great Society that Lyndon Johnson pushed through after Kennedy's assassination. Imagine having to fight the battle for Medicare today. Without that war on Judge Smith, what we now call the "liberal hour" would not have come.
Nor will any "liberal hour" come in our time, until we bring the filibuster down. I know it seems hopeless. But so did knocking out slavery when the abolitionists first started, or segregation, when civil rights activists began their struggle against Jim Crow. It's a fair enough analogy, since the filibuster is one of the last remnants of racist politics in America: it was a parliamentary tactic used by the Calhounians to make extra certain slavery would stay around.
We should adopt the strategy of the antislavery movement, which in the early stages had three approaches:
1. The laying of petitions on the House. Forgive the archaic legal phrase: I mean petitions to Congress, both houses. In the era of John Quincy Adams--in case you missed the Steven Spielberg movie--there would be mass petitions, with Adams and others reading them on the House floor to the howls of the Southerners. Every group busted by a filibuster should lay on a petition. And start with the House, which is the only place it has a chance of being read.
2. Resolutions by the House, as a warm-up for the Senate. Such resolutions might read: "Resolved, that Congress has no authority to require supermajorities in any chamber except as authorized by the Constitution." Aren't House chairs tired of seeing their bills cast into black holes by senators whose names they never even know?
3. Evangelizing. The most effective tactic in the fight against slavery was the preaching of New England clergy against it. We can start in our battle against the filibuster by enlisting faculty at New England colleges to hold teach-ins. Teach the kids why "Yes, we can" can't happen with the current Senate rules.
By the way, the abolitionists knew the Senate was their enemy, just as it is our enemy today. Let's hope these tactics work for us in getting rid of this last vestige of slavery: Senate Rule 22. What's painful is that we have to cross some of our most sainted senators. But unless we decide to just give up on the Republic, there's no way out. To save the Obama presidency, we may have to fight our heroes.