What do you think of the filibuster?

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Food for Thought

About the Senate, a college professor of mine used to say, “One day, the Supreme Court will declare it unconstitutional.” He was joking, I think.

But the Senate, as it now operates, really has become unconstitutional: as we saw during the recent health care debacle, a 60-vote majority is required to overcome a filibuster and pass any contested bill. The founders, though, were dead set against supermajorities as a general rule, and the ever-present filibuster threat has made the Senate a more extreme check on the popular will than they ever intended....

...the Constitution explicitly requires supermajorities only in a few special cases: ratifying treaties and constitutional amendments, overriding presidential vetoes, expelling members and for impeachments. With so many lawyers among them, the founders knew and operated under the maxim “expressio unius est exclusio alterius” — the express mention of one thing excludes all others. But one need not leave it at a maxim. In the Federalist Papers, every time Alexander Hamilton or John Jay defends a particular supermajority rule, he does so at length and with an obvious sense of guilt over his departure from majority rule....

...In Federalist No. 75, Hamilton denounced the use of supermajority rule in these prophetic words: “The history of every political establishment in which this principle has prevailed is a history of impotence, perplexity and disorder.” That is a suitable epitaph for what has happened to the Senate.

Julian Zelizer at CNN.com :

Last month, Sen. Sherrod Brown of Ohio, a strong defender of the public option for health care, warned:"I don't want four Democratic senators dictating to the other 56 of us and to the country, when the public option has this much support, that it is not going to be in it."

But in the end, those senators won the battle over the public option, as well as several other provisions in the health care bill.

They have emerged as the powerhouses of the Senate.

Before 2009, most Americans never heard of Sens. Ben Nelson, Max Baucus or Kent Conrad. More have heard of the Independent Sen. Joe Lieberman as a result of his Democratic vice presidential bid in 2000.

Yet now they are the movers and shakers in the Senate. Anyone who follows politics knows exactly who they are. It could not be further from 2005 when Nicholas Confessore in The New York Times wrote that" centrist Democrats today struggle with an unfriendly environment."

Throughout the Senate debate over health care, the centrists repeatedly forced the president's hand by insisting on changes to the legislation that made Obama's liberal base furious and which will constrain the impact of this legislation. Health care was the second major victory for centrists this year. They also were able to cut down the size of the economic stimulus bill back in February 2008.

Why is this small group of senators so influential and will this change? The first reason has to do with the nature of the Democratic Party. Democrats have never been as ideologically disciplined as the Republicans, and they have been less successful containing party differences.

Moreover, since 2006, Democratic leaders embraced a campaign strategy of attempting to expand their numbers by encroaching into conservative districts and states: The 50-state strategy.

In 2006 and 2008, the strategy paid off. The cost, however, has been that President Obama needs to maintain support among legislators who come from areas that don't lean Democratic -- or who don't share his policy views.

When some Democrats pushed to punish Lieberman -- who supported Arizona Sen. John McCain in the 2008 presidential campaign -- by stripping him of his committee chairmanship, Obama refused and insisted on keeping him in the Democratic coalition.

The second factor behind the new kings of the hill has to do with the sharpening of the partisan divide on Capitol Hill. The impact of growing party polarization since the 1970s has meant that winning votes from the other party is extraordinarily difficult. Except for rare moments, neither party can count on winning significant blocks of votes from the other side of the aisle.

As a result, it is essential that the majority party remains relatively unified in order to pass legislation. Obama has learned this lesson well. With health care in the Senate, he even failed to win the vote of the moderate Republicans Susan Collins and Olympia Snowe. Because of such partisan intensity, the vote of just a few Democrats becomes that much more important. Nor can he afford to lose the vote of a defiant Independent, Lieberman, who still goes along with Democrats on many votes.

Finally, institutions matter. The U.S. now has a Senate that operates as a supermajority. The Senate now requires 60 votes on any piece of legislation given that senators are willing to use the filibuster on almost any bill. If the majority party needs 60 votes to pass a bill, and it can't win votes from the other side, a handful of moderates wield tremendous power.

The Senate filibuster, as abused by the Republican minority, is a bad idea gone wrong. By allowing any senator to block a vote unless 60 senators vote to proceed, the filibuster rule permits senators representing a small minority of the population to block or delay measures that have overwhelming popular support.

But is it unconstitutional? Though the Constitution is silent, progressive icon Thomas Geoghegan thinks so. In a New York Times Op-Ed Monday, he argues that the filibuster is “at worst unconstitutional and, at best, at odds with the founders’ intent.”

I yield to no one in my admiration for Tom Geoghegan. His career as a labor lawyer and progressive writer leaves me in awe. I gave money to his ill-fated House campaign. For a brief period last year, he and I were part of a litigation team trying to prevent the dubiously Honorable Roland Burriss from squatting in Barack Obama’s old Senate seat for the remainder of Obama’s term.

But even Jove nods. Geoghegan’s arguments aren’t just flawed -- they are actually harmful to the cause of progressive constitutionalism. They may impel progressives to squander their energies on a constitutional crusade that will make them look hypocritical and ridiculous. Even worse, they may help legitimize the constitutional techniques that the right has devised to get its political way. Many of the same arguments were used during the Republican era of dominance to threaten the Democrats’ use of the filibuster to block Bush’s worst nominations. That dispute was settled by negotiation and deliberation -- which the founders clearly did intend -- instead of by spurious arguments about “original intent.”

The right has poisoned constitutional debate by advancing ridiculous claims -- that, say, the vice-president isn’t part of the executive branch, or that the president may ignore the Foreign Intelligence Surveillance Act -- and getting them taken seriously by claiming they are “clearly” part of the Framers’ “intent.”...

Geoghegan has some good suggestions -- a resolution by the House denouncing the filibuster and united political action to support candidates who will vote for reforms. But the right way to reform the filibuster is political, not constitutional. The Senate has changed its rules before -- until 1975, a cloture vote required 66, not 60, votes. The Senate can enact new rule changes. Obviously it would be hard to do, but it can be done....