Thoughts on the Filibuster

I had a Facebook Messenger discussion with my friend Professor Mondo yesterday.  It started with an article he shared to me from Jim Geragty at the National Review.  I’m not a fan of NR or of the writers there necessarily, but no harm in reading something from folks on the other side of the political aisle, right?  I wasn’t feeling great yesterday and I think I was a little grumpy, so this article probably rubbed me the wrong way.  Or more than the usual stuff from NR does.

So, the article was the author’s riff/amplification of Moscow Mitch’s op-ed in the New York Times in defense of the filibuster.  Some of the Democratic presidential candidates are talking quite openly on the campaign trail about how they support eliminating the filibuster for legislation if they get a majority in the Senate so that they can pass whatever piece of legislation they’re pushing at the moment.  The author’s point runs along with Mitch McConnell’s that the Democrats should remember back to the time when they were in the majority and eliminated the filibuster for certain executive and judicial nominees and how Mitch himself warned them that they would regret it down the line.  Of course, Mitch didn’t just take advantage of the Democrats’ rule changes, but he upped the ante and made rule and norm changes of his own – eliminating the filibuster for Supreme Court nominees (which the Dems left intact), deciding to ignore a Supreme Court nominee from the President of the opposite party in the last year of his term (a norm he said he will break again for the President of his own party) and other norms and rule changes that allow him to get federal judges pushed through the Senate more quickly.

The author’s article is titled Why is it so Difficult to Imagine the Day Your Side is in the Minority.  While it doesn’t explicitly say this, the article seems to be in favor of the “cooling saucer” theory of the Senate.  It’s slower there than the House and on purpose.  Except for unusual times in history, you have to get some members of the opposite party to get things passed.  And this is a good thing.  Otherwise, it’s just mob rule as Mondo argued.  It’d be terrible to be in the minority if everything in the Senate were just 51 votes and done, so Democrats, if and when they regain the majority, should not make any rule changes they can’t live with in the minority.

A couple of thoughts.  First on the idea behind the article.  As I told Mondo yesterday, I’m actually not all that upset with the idea that everything just requires 51 votes.  The filibuster as it’s exercised now is a perversion that actually makes passing things require 60 votes.  Yes, that means Democrats will be on the wrong side of that occasionally.  They are now and it sucks.  But long term, I think there’s something to be said for just letting a majority of Senators be able to do their work.  The 60 vote thing is a rule the Senate itself adopted, not something enshrined in the Constitution.  I say let it fall and let’s see what happens.  If you’re going to pass legislation, you still need the House and the President.  And if you get that, as the Republicans did in 2016, then you can pass stupid tax cuts for the rich and corporations.  Or maybe you try and undo something like Obamacare that the opposing side passed previously.  It’s messy, but requiring 60 votes to pass anything is also messy.

Second, it’s absolutely not a surprise that Moscow Mitch is making this argument.  If he actually cared about norms or the filibuster, he could do something about it.  I feel as certain as I can be that MM would have eliminated the filibuster for Supreme Court nominees once Trump became President regardless of what the Democrats did previously in the majority.  He has respect for the norms of the Senate only insofar as they help him accomplish his ends.  His op-ed is completely disingenuous and should be ignored completely.

Finally, I’m not sure how to take the author here.  I generally dismiss the NR writers as hacks who are just trying to pretty up GOP talking points for their readers.  So, in this case, I have to take the author as gullible to believe MM’s argument on its face.  Or I take him as a mouthpiece of the Republicans who are just trying to do some damage control in advance, just in case the Dems win control of the Presidency and both Houses of Congress.  Or I take him as a true believer.  If one of the first two options is the case, then the article isn’t worth the pixels that were expended in its being published.  But what about the third option?  Geragty really believes the stuff about the Senate and “cooling saucers” and all that stuff.  Professor Mondo believes it and I respect his opinion (even though I disagree with him).  But if the author really thinks the Senate should return to those halcyon days when the minority in the Senate was worth something, then why is his article aimed at Democrats who MIGHT do something about the filibuster for legislation in the future?  Why does he not call out MM for his rule changes and norm breaking, which actually went beyond what the Dems did in the past?  Why does he not address his thoughts about how the Senate should go back to some other version of itself to the one guy who can actually make that happen.  Like now.  He could do it tomorrow.  I guess it’s possible that the answer here is that he’s some combination of true believer and also a mouthpiece for the GOP.  He does have to serve a conservative readership after all.  Still, if you want your piece to be something more than just concern trolling Democrats, you’re going to have to do better than this.

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