Here’s Ed Kilgore, today, on the filibuster:
I’m among those who really get upset when people sort of internalize the recent routine use of the filibuster by Republicans to create a de facto 60-vote requirement for doing business in the Senate, as though it came down from Mount Sinai on stone tablets. It didn’t. It’s a revolutionary development in the empowerment of congressional minorities, of special utility to those who wish to obstruct progress. And it has a huge ripple effect on what happens in the House (as Frank indicates), the White House, and the country. We should never get used to it until it’s modified or gone.
Kevin Drum agrees, with an insightful response:
Agreed. And yet, in a way, it seems to me that Ed is wrong: we have to internalize the recent routine use of the filibuster first in order to have any chance of getting rid of it. As long as the public continues to hear about “filibusters,” they’ll continue to think that this is just Mr. Smith Goes to Washington, something that happens now and again when the minority party opposes a bill especially strongly. It’s only when everyone starts to realize that the Senate is a 60-vote body — not a place where filibusters take place periodically, but a 60-vote body — that we might finally get some public pushback on this.
Or maybe not. The sad truth is that no matter what we call it, filibusters will probably retain strong support pretty much forever. In general, fear of what your opponents could do in a majoritarian Congress seems to be a much stronger motivation than passion for what your own party could do.
Regular readers will know that I have concerns with all this. I’ve explained my views on majoritarianism and the filibuster many times (see here for my basic overview thoughts on the filibuster; here on the primary cost of getting rid of it; and here for my thoughts on democracy and majoritarianism), so I don’t want to completely rehash the whole argument. But it’s worth restating my three basic points:
- The Senate is malapportioned. Removing the filibuster will not ameliorate this, and may exacerbate it.
- A majoritarian Senate will operate, functionally, like a second House of Representatives. This has real, knowable costs, such as the foreclosing of minority amendments that could carry a floor majority, and the disappearnce of the compromise that such amendments now foster.
- Following from 1 and 2, there’s no ex ante reason to think trading in the status quo Senate for a small, malapportioned House with six year terms would improve American democracy.
Now, I’m not saying that eliminating the filibuster wouldn’t alter the policy outputs of Washington, or restructure Hill politics, or even have an effect on congressional elections. I actually think it would do all three of those things. I just don’t think the aggregate effect of those changes is obviously good for the republic. (I would like to see the filibuster pared back on nomination, which is a largely a separate issue). As Kevin notes, there’s no real reason to think that any particular partisan ideology would have an advantage. Both sides have priorities that have been held up or watered down by the filibuster; so for every public option or bigger stimulus that the liberals could obtain, there would be a stronger partial birth abortion ban and deeper tax cuts for the conservatives.
What I think you would get — and what I don’t think filibuster critics grapple with seriously enough — is an absolute increase in the volume of legislation. Not better legislation. Not worse legislation. Just more legislation. And that’s raises the question: is more legislation — unconnected to ideology or party or quality — inherently a good thing? I’m skeptical. Not because I’m a libertarian, although I suppose that’s a sizable part of it. But because I think making legislation easier to pass interacts in bad ways with a systemic problem of a democracy: management bias.
There’s a basic incentive built into democratic political systems that encourages politicians to Do Things To Help People. That’s mostly good news! It sure as heck beats any real-world alternative system. But it does result in political actors wanting to signal to their constituents that they are using their public offices to solve problems. And so it encourages the finding and passing and implementing of “solutions” in the form of legislation and government action, even when there’s a problem that can’t be solved, or the “solution” doesn’t solve the problem, or the “problem” doesn’t even exist. Trust me, you can think of plenty of examples.
Just like baseball managers have incentives to over-manage (changing pitchers, pinch-hitting, etc.) because public opinion is less harsh toward actively managing and failing than it is toward sitting on your hands and failing, so do politicians have the same incentives. Even when sitting on your hands is the optimal policy. Managers gonna manage. It’s a corollary to the idea of the cost of good intentions. How often do you hear from people Well, we have to do something. We can’t just let X happen! In many cases, this is undoubtedly true. But in a fair number of cases, it’s precisely wrong. Sometimes you want to sit on your hands. And given that representative democracies are prone to over-management bias, institutional reforms that allow for easier production of legislation are bound to exacerbate the bias toward over-management.
There are those who will object to this, those who believe that if we had triple the amount of legislative output from Congress and it was, in aggregate, neutral from a partisan perspective, that it would be a net benefit for the nation. That active government, regardless of ideology, is better than restrained government. That good intentions and our best efforts at improving conditions are worthwhile and have merit, even if they do not, in fact, improve conditions. That the state’s role is to govern, and that to govern is to actively manage. I will not convince anyone who believes so otherwise. But I do, however, respectfully disagree.