End the Fillibuster? by Kevin

Both Matthew Yglesias and Nathan Newman have reasonable arguments against the filibuster. The gist of their arguments is simple: the filibuster is anti-democratic in nature, and that progressives benefit from an easier ability to pass laws than conservatives do. With the obvious caveat of the judiciary (where I think the Constitution should make confirmation a 2/3rds proposition), th argument has some appeal. Obviously, giving in to the GOP attempt to destroy the filibuster now is simply unacceptable. They want to put the worst kinds of extremists on the bench and that has to be stopped. The judiciary is simply too important and too powerful to allow for the minority to be shut out of the process completely.

I am an honestly not sure if I agree with the notion of removing the filibuster or not, so this post is more in the nature of talking the argument through.

As I said, it is a reasonable sounding, but I have some problems. First, I have some doubts that the end of the filibuster would somehow force the long awaited GOP crack up. Newman contends that the filibuster allows the GOP to paint their failure to enact the theocratic portion of their coalition’ demands as a consequence of Democratic obstruction. That sounds nice, and there is some short term evidence that the Schiavo intervention did have that effect. But it is not long term evidence, and the GOP crack up has been predicted for a long time. The notion of letting them have whatever they want sounds quite a bit like heightening the contradictions, and no one is talking about the power of money and the conservative media, like FOX, to smooth over differences. It would certainly not be as easy as it is now, but with the endless war on terror to beat the Democrats over the head with, with Roe v. Wade preventing serious movement on abortion, and with gays to demonize, and the fact that rural dwellers tend to be more libertarian in outlook that urban dwellers,I am doubtful that the crack up would be imminent. And since the crack up would not be imminent, the Democrats would be trading away a powerful tool for preventing some of the GOPs worst ideas from harming people in a very real and lasting way. How long before a federal version of the execrable “pharmacist refusal” laws makes it way through the Senate? It is bad enough when such a bill is used as pure political theater. It is worse when such a bill is used as political theater and actually makes woman’s lives worse.

The larger problem for me, however, is that the Senate in an inherently un-democratic institution. It is entirely possible to imagine a scenario where 51 Senators represent less than half of the population of the United States. In fact, if you count each Senator as representing half of the state’s population, then the 43 Democrats and one Independent who caucuses with them represent more people than the 55 Republican Senators (142,183,068 to 138,669,009) if my back of the envelope calculations are correct. (The population figures are census numbers, not eligible voters, but the census numbers are used for determining House representation, so I thin k they make a decent point for comparison). In other words, the minority is in a position to impose its will upon the majority. That is undemocratic — it is one thing to protect minority rights from the tyranny of the majority; it is quite another to replace the tyranny of the majority with the tyranny of the minority. It doesn’t seem correct to allow that to happen. The filibuster provides one check on that possibility. I can imagine others — no bill may pass unless it has at least 50 votes and the votes come from people representing at least 50% of the population, for example — but they would all require changes to the existing rules. The filibuster provides that protection right now.

There is no doubt that the filibuster has been used badly in the past, and there is a good case to be made that the filibuster hurts progressives more than conservatives. But it is not a slam dunk case, and I am uncomfortable with the fact that once the filibuster is removed, there is nothing to prevent the minority from imposing its will on the majority. And that doesn’t even address the question of judges. Should the minority be allowed to impose its judges on the majority? What could possibly be the justification for that? Matt and Nathan make a good argument, but I think they haven’t gone quite far enough to convince me to abandon the filibuster.