The Filibuster Argument

The filibuster argument out here in blogland has been a bit more engaged recently, with Ross Douthat and Will Wilkinson taking on the anti-filibuster group, featuring Ezra Klein, Matt Yglesias, Kevin Drum, James Fallows, and others.


As regular readers know, I'm broadly sympathetic to the anti-majoritarian arguments that Douthat and, especially, Wilkinson have been making.  American democracy has never been a simple majoritarian system.  Madison believed, and I think correctly, that majoritarian democracy was an invitation to instability.  For all of Ezra Klein's focus on the filibuster and it's evolution from a rare to a ubiquitous tactic, he's wrong to imply that Congress used to be governed by simple majorities.  In fact, one of the possible reasons for the rise of the filibuster is that many of the older anti-majoritarian practices in Congress, especially in the House, have vanished (can't link to Ezra's post from today right now, because his blog is broken, but I'll correct later).

However, I think that Douthat and Wilkinson need to answer two questions if they really want to persuade:

1.  Why this specific anti-majoritarian rule?  60 Senators to pass all legislation?  Really?  What's the justification not for anti-majoritarianism in general, but for the 60 vote Senate?  I do think that Matt Yglesias, for one, would prefer to just eliminate the Senate (and have the House choose the president), but that doesn't mean he's necessarily wrong that the filibuster is a bad anti-majoritarian device.

2.  Does democracy work if the out party can, as long as it has 41 Senators, benefit from being the "party of no?"  I think that's the best anti-filibuster argument out there, and Matt Yglesias and Ezra Klein have been making it recently.  I'll develop this one a bit...Wilkinson says:

But the ability of a minority to affect the pace of a session forces the majority to focus on its priorities and keep contentious but not-so-important issues off the floor. This blocks any number number of “particular issues.”

Why would a senator stall the process? Because he or she wants something, of course. Most of the procedural convolutions in the Senate are pretty clearly logrolling and vote-trading opportunities. It is the sum of these exchanges, not mere head-counting, that ensure that the various interests represented by the legislators have been taken into account. And this rough balancing of conflicting interests and convictions, not mere head-counting, establishes whatever democratic legitimacy legislation might have.

That's all well and good, and I agree with the underlying democratic theory expressed here.  However, I think it's pushing things to say that it's a good empirical description of the current United States Senate.  "Why would a senator stall the process? Because he or she wants something, of course."  Is that really why Republicans were filibustering legislation and nominations that they ultimately voted for?  The case Klein and Yglesias make is that as long as the minority party believes it will collectively gain from blocking things that will help the nation; and, as long as the minority party contains at least 41 Senators who will act on that belief instead of acting on specific things that those Senators want, then the minority can win: block legislation, nation goes to hell, minority party wins next election. 

Now, if that's what's actually going on in the Senate right now (and, granted, the GOP doesn't have 41 Senators willing to do it), then that's really not the empirical reality described by Wilkinson's theoretical justification.   I think this is a serious point, and defenders of the 60 vote Senate have to address it.