There is no reason to let the filibuster die a slow death. Democrats should finish the job
By M.S.
REPUBLICANS from Charles Krauthammer to John McCain are now telling Democrats they will rue the day when they decided to use a simple-majority vote to change Senate rules and eliminate the filibuster for executive office-holders and federal judges (apart from the Supreme Court). They're wrong. Democrats will rue the day when they didn't go ahead and eliminate the filibuster for legislation, too, just as they are even now ruing the day in 2009 when they didn't eliminate the filibuster immediately on winning control of both houses of Congress.
Here's how "ruing the day" works. To rue the day you did something, it has to be the case that, had you not done that thing, something better would have happened for you. In this case, Republicans are claiming that had Democrats not decided to eliminate the filibuster for executive office-holders and judges, they would have retained the ability to use that filibuster when they are in the minority, which could be as soon as January 2015. They may also be claiming that had Democrats not used a simple-majority vote to change the Senate rules in their favour, Republicans would have refrained from doing so as well.
There is no evidence for either of these claims. To believe that Republicans would not have taken advantage of every legally available technique in the Senate rulebook to maximise their power when they are in the majority, you would have to believe that Republicans have a respect for the traditions of the Senate that overrides their interest in achieving their political ends. As my colleague wrote yesterday, "That bomb was dropped some time ago." Republicans have spent the past five years demonstrating that they have no such overriding respect for Senate tradition by demanding an unprecedented 60-vote supermajority to get anything passed, essentially filibustering virtually every piece of legislation and every executive appointment. Alternatively, you might believe that Republicans are afraid of the political consequences of all-out tactical maximalism in Congress, worried that they might appear to American voters to be extremists who will go any lengths to effect their agenda. It's hard to see why anyone would have believed this even in the autumn of 2009, but to believe it even after the government shutdown of the autumn of 2013 is like believing in pixies. (Worse, actually: there's no dispositive evidence that pixies don't exist.)
In order to believe that Republicans would not have used the nuclear option or ended the filibuster as soon as it serves their political ends, you have to think there is some sort of internal brake on the Republican Party's legislative behaviour. But there isn't any such brake. In the tea-party era, Republican politics are dominated by the conservative-purity feedback loop. Even Republican senators who might be personally inclined to preserve old-fashioned Senate rules or moderate the intensity of bipartisan conflict in any way will find that they are unable to do so. Either they will be whipped into shape by tea-party primary challengers, or they will be outflanked by more tactically extremist rivals who place them in an impossible position. Jonathan Bernstein has a complex illustration of how this seems to have happened to the "moderate" Republican senators who brokered the brief, doomed filibuster truce this summer:
The problem with the summer compromise is that it was horrible for deal-making Republicans. The deal essentially said: Republicans will continue to filibuster nominations, but will supply enough votes for almost all of them so that the filibusters will be defeated. But that meant that in practice a handful of Republicans were forced to tag-team their votes, making sure that Democrats always had 60. What’s more, the shutdown fight — which began right after the Senate deal was struck — revealed that radical Republicans led by Sen. Ted Cruz (R-Tex.) were eager to scapegoat those same deal-making Republicans. That raised the cost of the executive branch nominations agreement for tag-teamers such as Sens. Lamar Alexander (R-Tenn.), Bob Corker (R-Tenn.) and John McCain (R-Ariz.). In other words, the summer deal might or might not have been stable, but it certainly couldn’t hold in a world in which the majority of Republican senators are looking for ways to separate themselves from mainstream conservatives, and then using that separation to attack them.
We should have already known this: the other thing the government shutdown showed is that John McCain and his mainstream Republican colleagues are powerless to affect their party's course.
In any case, the point is this: the filibuster is dead, and it was always going to be dead, the moment Republicans take power and decide it's getting in their way. Democrats are still in control of the Senate for the next 14 months, at least. To use those 14 months to best advantage, they should have gotten rid of the filibuster entirely yesterday. Had they gotten rid of the filibuster in 2009, Obamacare would be a less dangerously kludgey law; they might have gotten a cap-and-trade energy law to fight climate change, immigration reform, a jobs bill, a budget compromise instead of the sequester. The filibuster has done Democrats a world of harm over the past five years, and by the time they lose the Senate, they won't have it anyway. Apart from its partisan disadvantage to Democrats, it's a horrible institution with no moral or practical legitimacy, "an anti-democratic monster" as Emily Bazelon puts it. There's no reason to let it die a slow death. Democrats should finish the job. They could start on Monday.
