Monday, January 11, 2010

Aren't Republican filibusters horrible?

Thomas Geoghegan, a Chicago attorney and author, has written an op-ed piece in The New York Times, about filibusters in the U.S. Senate.

Filibusters are primarily an issue that arises when the president's party has a majority in both the House and the Senate. Under those circumstances, on an issue where the vote breaks down according to party lines, the filibuster is the last-ditch tactic by which the minority party can block initiatives of the majority party. That was the case for the Democrats as minority party from 2003 to 2007, and has been the case since last year for the current minority party, the Republicans.

Not all issues come to a party-line vote. Up until 1964, Southern Democrats filibustered civil rights bills. Even though their party controlled the Senate, a coalition of Republicans and Northern Democrats constituted a majority in favor of such legislation. Nowadays, the parties are less ideologically diverse, so party-line votes have become more common.

In the situation that existed from 1981 to 1987, when Republican President Ronald Reagan's party controlled the Senate but not the House, Senate Democrats were not completely dependent on the filibuster, because their House colleagues could block, or at least significantly influence, legislation advocated by Reagan.

And from 1995 to 2001, with Republican control of both houses of Congress, but not the White House, the Democrats' last line of defense was not the filibuster, but rather the veto pen of Democratic President Bill Clinton.

During the 2003-7 period, the most controversial Democratic filibusters were mounted in opposition to some of Republican President George W. Bush's judicial nominees. In the current Congress, the biggest issue that has brought filibusters into play is, as Geoghegan notes, the health care bill.

I don't want to be unfair to Geoghegan. Perhaps he opposed Democratic filibusters during the last administration; I don't know. But I note that he has chosen this time to challenge the constitutionality of a Senate rule that has been on the books for 35 years. I can't help but speculate that he might be more concerned about what he calls the "recent health care debacle" than about a procedural question, per se.

The Senate's original rules, dating from 1789, did not allow filibusters. But they have now been institutionalized for more than two centuries. And the 1975 rule change that allows "ghost filibusters", which has contributed to making them a routine part of Senate procedure, has not been subjected to a constitutional challenge.

If, as Geoghegan advocates, the courts were now to step in and declare unconstitutional what has in effect become a 60-vote supermajority requirement for normal legislation to pass the Senate, it could be seen as a political move to benefit the party that is currently in power. But I suppose one could argue that a Supreme Court decision to that effect would be no more partisan than its Bush v. Gore opinion that halted the recounts in the 2000 Florida election dispute (although subsequent inspection of ballots showed that further recounts would not have resulted in a Gore victory).

Aside from any questions regarding the political ramifications, a plausible constitutional case could be made for disallowing filibusters. The courts would need to weigh the balance between the Senate's constitutional right to determine its own rules, and those constitutional provisions that strongly imply, but don't exactly state, that legislation is subject to a simple majority vote in both the House and the Senate, except in the wake of a president veto. The routine nature of filibusters in the modern Senate strengthens the case that procedures prescribed in the constitution are being violated.

As Geoghegan explains, the Senate rule has evolved over the years. But senators have never shown any inclination to eliminate filibusters. Majority Leader Harry Reid would rather not be required to build a 60-member coalition for the health care bill. And I'm sure that Reid's predecessor, Bill Frist, would have preferred an easier path toward confirmation of judicial nominations. But both parties have followed that old legal principle, "what goes around comes around". Sooner or later, Democrats will be back in the position they were in during the 2003-7 period. When that happens, they would regret any move they made while in the majority, to cut back on filibusters.

One last point: the procedural issue is not ideologically neutral. Those of us who veer toward the libertarian side, welcome any procedural hurdles in the path of expansion of government. Geoghegan seems to favor activist government, and I suspect that is another reason for him to crusade against filibusters.

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