Filibuster Reform Fizzles Again

Why shelving the nuclear option is bad for democracy.

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Senate Majority Leader Harry Reid, D-Nev., has been threatening to go "nuclear" on the Senate, allowing a simple majority of senators to change the upper chamber's rules, in this instance to do away with filibusters of executive branch appointments. (Changing Senate rules traditionally requires 67 votes, but can be achieved with 51 through a more complicated process.) Republicans threatened a similar move on judicial nominations during the George W. Bush administration, and both times a change was averted by a last-second deal.

Thanks to what Democrats are portraying as a big "cave" on the part of Republicans, seven of President Obama's nominations who have been gummed up will finally be allowed to proceed, including Richard Cordray as head of the Consumer Financial Protection Bureau (whose nomination was quickly advanced past the last procedural hurdle before final approval by a 71-29 vote). The only catch is that Obama will need to submit two new names to sit on the National Labor Relations Board, rather than receiving votes on the two people he had previously nominated.

It was clear from days of acrimonious back-and-forth in the press that Reid was extremely frustrated with the way the Senate has been operating, but also that many long-serving senators were uncomfortable with going nuclear. Case in point, during a press breakfast sponsored by the Christian Science Monitor today, Sen. Carl Levin, D-Mich., a longtime foe of filibuster reform, said:

The issue before the Senate is whether or not a majority of the Senate can change the rules at will. … Do I favor changing the rule about executive appointments getting a vote? You betcha. … I want to change the rule, but not by fiat, not by breaking a rule which says that it takes two-thirds of the Senate to end debate on a rule change.

[See a collection of political cartoons on Congress.]

Levin also brought up, as filibuster reform opponents often do, that Democrats have been able to "stop some very bad things from happening" due to use of the filibuster, and going nuclear on executive appointments means someone may, someday, go nuclear on straight legislation.

Those are fair points, and it's certainly nice that Obama is going to win long overdue confirmation of some nominees, particularly Cordray, who no one thinks is unqualified for the job. (It remains to be seen how the GOP will act toward two other Obama nominees: Mel Watt to head the Federal Housing Finance Agency and the as yet unnamed replacement for Janet Napolitano at the Department of Homeland Security.)

But the deal to avert a showdown is disappointing on another level because, eventually, the filibuster as it is practiced now has to go. As U.S. News' Peter Fenn ably explains, the supermajority requirement for every piece of legislation is an anomaly of the modern senate, not something dreamed up by the writers of the Constitution.

 The modern filibuster clouds democratic (small d) accountability by allowing the minority to thwart the will of the majority and then blame the majority for a lack of change. In a two-party system, then, the incentive is obviously to block everything and proceed to campaign against the majority's lack of results, thus becoming the majority through intransigence.

[Read the U.S. News Debate: Should The Filibuster Be Overhauled?]

The filibuster also allows parties to wildly overpromise, knowing that the most extreme versions of legislation will never pass, thus clouding the public's perception of what each party's actual desired policy outcome is and what the realistic result of giving a particular party power will be. (The New Republic's Alec MacGillis has a good take on this.)

If a party wins an election and holds the Senate, it should be allowed to implement its agenda. If that agenda is unpopular, that party will lose the Senate. Filibusters should look far more like the one in "Mr. Smith Goes to Washington" – one or a few impassioned senators holding the floor and making a public case for their obstruction – and not at all like the current version, in which the whisper of opposition is enough to grind the entire Senate to a halt.

Had Reid gone nuclear, would Republicans then have tossed aside the 60-vote threshold on regular legislation somewhere down the line? Sure, maybe. Would the GOP then have passed some things that I personally find odious. Yeah, quite possibly. But would our democracy be better off for it in the long run? Absolutely.

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