Sunday, November 24, 2013

Sunday Question for Liberals

Same question, pushing  on my Saturday Salon column, in which I argued that the filibuster can still be saved. I say if Republicans offered a deal which would preserve some possibility of blocking judicial nominations, but gave up at least some of the filibuster on legislation, Democrats should go for it. If Republicans did suggest such a deal, should Democrats accept it?


  1. What reason is there to trust Republicans on this when they have violated every previous deal? It's fine going back to the majority rules Senate that existed before the 1990s. There's no reason to accept fake deals that will quickly be broken.

    1. Agreed. The key phrase here is "If Republicans did suggest such a deal." What Republicans are in a position to bind future Republican caucuses? What those caucuses do will depend entirely on what political pressures they're under at that moment. A year ago at this time, who was predicting that one new Senator, Ted Cruz, would play as big a role as he did in a government shutdown? There's a Catch-22 here: There's no point discussing the substantive pros and cons of a possible deal unless you've got a GOP that can make and keep deals; but if you had that, the filibuster wouldn't have been nuked and the question here wouldn't be before us.

    2. Sounds like a decent deal to me, although devilish details. I'm not at all worried about reneging Rs - if they do renege, we'll know within a month or two and can retailiate by killing the filibuster for all legislation.

      As for the reason why it's a decent potential deal, it's important to get some shred of depoliticization back in the judiciary, while legislation is inherently political.

  2. And if I had some roast beef I'd have a roast beef sandwich...if I had some bread.

    Kidding aside, if Republicans made that offer, I think I'd favor a counteroffer of: 1) preserve some form of filibuster for judicial/lifetime appointments, 2) eliminate filibuster on executive/time-limited appointments, 3) eliminate/severely restrict filibuster on legislation.

    Rationale being: 1) lifetime appointments are a bigger deal than short-term appointments, 2) the constitution's four hurdles for enacting legislation (the House, the Senate, the president's signature, upheld by the courts) are sufficient.

  3. No, I'd urge the Democrats to reject that deal. For Democrats to achieve their vision of the federal government, they need a year of swift appointments, both executive and judicial.

  4. No.

    The filibuster is not an obstacle to passing legislation over the next year or likely the next 3 years. The filibuster is a potential obstacle to getting judges and executive branch nominees confirmed over that time frame.

    As others have suggested, a deal is only as good as the political pressures facing the minority and majority at any given time. If there were some political norm where duly enacted deals would continue to be honored even if changing circumstances made a deal more beneficial to one party, things might be different. But that norm does not exist.

  5. No.

    I assume as soon as one party controls the Presidency, House, and Senate the filibuster will be dead for legislation as well. And good riddance. The 60-vote-senate was horribly undemocratic and a deliberate attempt to make the US Senate completely useless during the Obama era.

    There are more than enough obstacles to anything actually happening under our system of government. A senate that at least allows itself to do it's job will be a refreshing change.

  6. I'd say that if the Republicans offered a deal that involved some kind of compromise on their side, I'd probably check my temperature, because I'd be delirious..... It would mean that they accept the legitimacy of the opposition. But to accept that the Democrats are a legitimate government would be to get primaried. So it won't happen.

  7. I think I'm in the same boat as the others.

    The fundamental problem is the structure of the modern GOP. Everyone keeps saying "IF the Republicans made such an offer..." because we all don't see how the current GOP would offer it. So, it's really hard to react to your column, because the hypothetical just seems so divorced from reality.

    Republicans cannot be bipartisan today. If the Democrats make the offer, that makes it DOA. If more than just a couple of Democrats vote for a proposal from the right, that, too, taints it. Today's Republicans cannot afford to support any legislation that a Democrat votes for.

    The problem is the dysfunction of the GOP. While we, as outsiders in the liberal thread, can't necessarily do anything to fix that, we somehow feel obliged to treat the symptoms. We can try to do that. But, at the end of the day, our efforts are doomed to fail. We can try to make the institutions function differently (eg, reducing the filibuster). But, to SAVE the old institutions, you're going to need to restore the old institutions, inlcuding the parties. There's no point to preserving the filibuster if the modern GOP exists.

    Yes, unified GOP government will be truly awful without the filibuster. But it would be with it, too. Ted Cruz will say that the filibuster doesn't appear in the Constitution, and anyone who's not with him, is a traitor. (If not Cruz, then name your Tea Partier...the names don't matter). This GOP cannot function without a president of their party. Then, everything the leader wants is the yardstick. With a Dem president, there's no possibility of government functioning, because voting for anything he signs is primary-able.

  8. No. The Rep have repeatedly demonstrated that hey can;t be trusted on deals.

  9. I also say no. A minority that made a deal like that would want to prove it could block judicial nominations. If that deal were made tomorrow, I assume we'd be right back to the blockade of the D.C. Circuit. If the deal were made later, I would expect Republicans to filibuster other important vacancies regardless of the nominee, and view any Democratic response as a violation of the deal.

  10. Your column might have been more persuasive if you had listed one case where the filibuster helped progressives in some important way in the US Senate. (You brought up Wendy Davis, but in the first place that was in a state legislature and in the second place it was unsuccessful. ) I have already pointed out that the only conservative Supreme Court nominee to be blocked in modern times--Bork--was blocked by majority vote, not filibuster. As for the legislative filibuster, what major conservative legislation did it prevent? Not partial privatization of Social Security--that never even came to a vote in the House.

    You might say, well, it may come in handy in the future to prevent repeal of the ACA. But if Republicans get control of the Senate and presidency as well as the House, they could repeal the ACA without abolishing the filibuster--just say it's a tax and therefore not subject to the filibuster.

    As for, "Do you want to see the Senate run like the House is?" the answer is No, not like the present House. But I also wouldn't like to see it run like the Senate was back in the days when the Senate, not the House, was the burial ground of anti-lynching and civil rights laws. There have been bad Houses and relatively good Senates, but there have been relatively good Houses and very bad Senates, too.

    In my view, good riddance to the filibuster.

  11. Maybe.

    Any such deal could be broken. This is not an argument against deals. What a deal represents, then, is a set of norms, and a set of conditions where people make (potentially) votes.

    For the first, some sort of established norms on when obstructionism is justified, how far it can extend, I say that's probably a good thing. If the minority breaks the norms, well, then the deal hasn't really hamstrung the majority much, since they can then go back and eliminate the filibuster again.

    For the second, I don't really mind if filibuster reform whereby more things the majority wants come to the floor, if the cost is more "tough" votes for marginal politicians. If a filibuster is essentially just a means by which the minority demands that the majority go "all out" in support of it, get everyone's record crystal, but it still passes, again, I don't really have a problem with that.

    What matters most to me is that a deal wouldn't just be a filibuster deal, but a general procedure reform deal. Delays and holds matter greatly. It doesn't make sense if the minority party is deprived of one throttle lever, while they still can use any of three others almost as effectively. I'd rather bring them all down a few pegs.

  12. The anti-majoritarian argument in favor of a 60 vote Senate makes no sense to me.

    Whether confirmations require 51 votes or 60 votes, a minority can still block block confirmation. Senators from the 25 least populous states represent less than 25% of the population.

    The fact that a majority of Senators can represent 75% of the US population or 25% of the population confounds this argument beyond the point where arguments like this make sense.

    If the real problem was the interests of a majority of represented people running roughshod over the interests of a minority of represented people it would make a lot more sense to argue for a House filibuster than against the Nuclear option.

  13. Yes, small states are overrepresented in the Senate, and in theory that means senators representing a decided minority of the population can prevail regardless of whether we have a 51-vote or 60-vote Senate. But in practice, the states are not divided on the issues by their size to any great extent. There are conservative small states and liberal small states. Obama carried 26 states in 2012, or 52% of the states--almost exactly his share of the national popular vote.


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