February 11, 2018

Another Look at Senate Filibuster

The US Senate's well known excuse for inaction, the cloture rule ostensibly borne out of the "originalist" filibuster, hasn't served the purpose small government advocates have expected. Nor, it seems, is it as sacrosanct as Constitutionalists have been told.

Analyses as diverse as Brookings and Newsmax agree that the filibuster was enacted as an unintended consequence of Aaron Burr's dubious advice that the Senate abolish the "previous question" rule, which allowed a simple majority to end debate. This was the Senate's originalist intent.

But what of its virtue as a mediating influence, moderating the excesses of partisanship by requiring legislation to be "centrist" enough to earn support from both parties? Well, it didn't prevent passage of the hyper-partisan Affordable Care Act. Yet it does manage, somehow, to help prevent that act's revision or repeal. Despite those contradictory effects, I resisted any change to the 2014 opinion I shared with my blog brother and, tellingly, with Majority Leader McConnell. But last week's passage of a new two-year budget plan has me completely rethinking this. What if the rule supposed to limit the tyranny of the majority only replaces that with the tyranny of a minority? Professor of philosophy Rob Koons in Newsmax:

As a result, 41 Senators can block any bill literally without lifting a finger.

Cui bono? The Majority Leader, that's who. Senator McConnell.

They are able to defend themselves against rebellion from the ranks, because it is mathematically impossible to reach the 60-vote margin without the discipline provided by the Leader and his Whip.

And if that's not bad enough for you, it gets worse. The 60-vote cloture actually encourages bad leglislation rather than prevent it, because a pragmatic alternative to "centrist" legislation is what you might call "co-dependently extremist" legislation.

The 60-vote rule protects all incumbents from accountability to the voters, since they can also claim, plausibly but falsely, that they were unable to deliver the reforms the people want because of the obstruction of the other party. the cloture rule insulates both parties from accountability to the electorate by alleviating both parties of the responsibility for governing.

Senator Rand Paul memorably Tweeted about the consequences of this last week:

When the Democrats are in power, Republicans appear to be the conservative party. But when Republicans are in power it seems there is no conservative party.

A similar refrain we've all heard, many times, is "Republicans and Democrats, what's the difference? They're all the same."

President Trump has described a solution to the problem: "Must elect more Republicans in 2018 Election!" The problem is, TEA Party voters feel betrayed by compromises like this, and because "there's no difference between Democrats and Republicans anymore" we continue to have a narrowly divided Senate ad infinitum.

Personally, I'm prepared to endorse a more realistic solution - one that has also been endorsed by President Trump - the one proposed by Professor Koons: "Trump and Pence must lead a rebellion by back-benchers to overturn the cloture rule." The Democrats should be supportive, as they've long advocated for this change to a "more democratic" Senate. As for keeping Democrats from abusing power should they take the majority? That is the job of the voters, quite frankly. And the fact they haven't had to do it since at least 1975 has played a large part in the massive leftward tilt of the modern Democratic party. Let them be held accountable for their bad ideas at every election, as they were in 2016. The biggest obstacle will come from Leader McConnell himself. Yet another politician who should be more accountable to his voters.

Congress Constitutional Right or Privilege? Posted by JohnGalt at February 11, 2018 11:58 AM

I have softened, but not changed my mind. The best argument against remains "Leader Chuck Schumer (TidePodFancier - MY) will pitch it in a New York Minute."

That is compelling. But I remain wary.

My Main Man, John Calvin, nailed it: "It is much more important to kill bad bills than to pass good ones."

So did Michael Barone with: "All procedural arguments are insincere, including this one."

It could be called a bit rich that ThreeSourcers are decrying "the tyranny of the minority." I consider us the vanguard against majoritarianism. The idea is to make it hard to govern: that's being a feature and not a bug.

The larger issue is that spending is on a solid growth path and legislation is required to cut it -- that is where the mistakes were made. To remove what has been an important brake on popular legislation is fraught with peril.

Posted by: jk at February 12, 2018 5:09 PM





And, mostly. Legislation is required to cut mandatory spending, but discretionary spending must be renewed regularly with - legislation. Legislation like what we witnessed last week in the 2-year budget. Legislation that must have an "I'll scratch your back if you scratch mine" component unless there are a solid 60 votes to go one way or the other.

My case is that making that 51 (or 50+1) would make it easier for Republicans to shrink government (if they ever did honestly wish to do so) and make it easier for voters to see the true colors of their own senator. It has the effect of giving more power to the voters. You know, Hoi Polloi.

My personal affinity for the 60-vote rule came from a misimpression that it limited Senators' power. In fact, it gives them more of it as explained in the post.

Posted by: johngalt at February 13, 2018 10:22 AM

I hear all my anarchist buddies screaming in my ear that "you can't stop people with parchment." So many of the swell features of the Constitution have been neutered.

I hear much Sturm and Drang about the new budget deal. They certainly all have a point, but it is not about who has 51 or 60 votes -- we have, like, three! And they're divided between the House and Senate (okay, there might be low double digits in the House).

But is it "Republicans abandoning their ideals?" Their voters (in plurality) are not clamoring for cuts, The new GOP ideal is "Trumpism." And he has never ever once said he was going to cut spending.

So I am going easy on the poor Republican legislators this week. Fiscal austerity is not the brand anymore. Like free trade, it does not have a home in either party and would be worse if Democrats took over.

But the people who are shocked haven't been paying much attention #amirite?

Posted by: jk at February 13, 2018 2:43 PM

No I don't think so. Our media overlords dutifully trumpet Trump's calls to increase spending - on a wall, on defense, on infrastructure (what am I leaving out?) - but just as dutifully omit any mention of growth, cuts and reforms to lower deficits and the debt.

Trump has called for spending cuts. And not just this year. And while your prejudice of the Trump Revolution may be laser focused on immigration (again, think about why that is at the top of your mind) there are other, some would say greater, issues that give enduring life to the "Deplorable" revolution. Instead of thinking of a border wall, when you think of Donald J. Trump, think "Tea Party President of the United States."

Posted by: johngalt at February 14, 2018 10:29 AM | What do you think? [4]