Drive A Stake Through Its Heart: Updated
Almost 9 months ago I wrote my first post calling for an end to the filibuster. Since then I've written many that have advocated ending it, all linked from this page. As the months have gone by, and apparently due to the obvious damage the institution of the filibuster has done to pending health care reform, legislation, more and more people have added their voices to the call to end it, Chris Bowers, Jon Walker, and Ezra Klein among them. I'm glad to have the company, and having it persuades me that there's a reason to update my original post on the public, and to present the case I made there once again. So, here goes.
The Republican Tax Cut wingnut, Steve Forbes, once said of the IRS: “The only thing we can do with this hideous beast is kill it, drive a stake through its heart, bury it, and hope it never rises again to terrorize the American people!” While I don't share this view in relation to the IRS, I do think the sentiment is perfectly crafted to express my feelings about the Senate filibuster.
The filibuster is an extra-constitutional travesty that has too often undermined the power of the US Congress to express the will of the people. It has worked to require super-majorities whenever the United States has to get anything important done. The need for super-majorities, in turn, a) has stopped action favored by a majority in many areas; b) where action is possible, it has often watered down or gutted its effectiveness, because the need to compromise with minority opponents of legislation has required agreement to loopholes, “fine print” and exceptions by the majority, and c) perhaps most important of all, the need for super-majorities, has prevented later adjustments by the majority to errors in legislation, and to its unanticipated effects, because, very often, an administration may get only one bite at the apple in each major area of concern.
The “one bite at the apple” problem is made much worse by the need for super-majorities. Legislatures can't follow a continuous improvement/learning-based approach to legislating. They need to get it right the first time. But, that's a virtual impossibility, because politics and economics deal with complex systems and none of us know enough about such systems to do it right the first time without pure, blind luck. The current stimulus package, the coming health care bill, the future energy and environmental legislation, all are sure to be flawed and to require continuous improvement, just as we're finding with the TARP legislation. But we won't be able to do that improvement, because the lack of a super majority won't allow it, and because if there is a need for improvement, that very fact will ensure that the minority's political interest will impel them toward preventing it.
How do we handle complex systems in non-legislative environments in order to be successful? The best method we know is to develop a solution to a problem by comparing alternatives and selecting what appears to be the best, monitor the results closely, and if those don't meet our expectations, then recognize another problem and go back for a second or third or fourth bite at the apple, in order to continuously improve our results until we meet some standard we've had in mind from the beginning. The biggest problem with the need for super-majorities in Congress, is that they make legislating a “crap shoot,” because they shut the door on any realistic possibility of proceeding along the path of correcting errors. Instead, super-majorities only allow us to pass an inferior solution to a problem in the first place, and when its results are unsatisfying to everyone, to blame the “ins” for failing, get the “outs” in, and give them a chance to try to get their own solutions through the same obstructionist process.
In the twenty-first century, a society that can't adapt to error, which is, after all, the human condition, cannot long survive. And the United States is in for a very sharp decline unless we can do something about a legislative process that is incapable of continuously evaluating and improving the results of its previous decisions. That something is getting rid of the filibuster and returning to the constitutional requirement of a simple majority in each house of Congress to pass new legislation.
Getting rid of the filibuster is easy to do, if we have the will and are willing to abandon the mythology of the desirability of immobilist government that thwarts the will of the majority. The instrument of doing it is a maneuver that's been given the name of “the nuclear option.” It was proposed by the Republican Senate in 2005 to overcome Democratic filibusters of Presidential judicial nominees intended to block Senate confirmations. When Bill Frist, the Senate Majority Leader at the time, got ready to “trigger” the option, which would have had the consequence of eliminating the rule or precedent underlying the filibuster, a bi-partisan so-called “gang of fourteen” (7 Democratic and 7 Republican) senators arrived at a compromise which got the Republicans what they wanted, and saved the filibuster for posterity. The compromise was to avert a vote on “the nuclear option,” give up the filibuster on some of the nominees, table the consideration of others, and save the filibuster for "extraordinary circumstances."
The 2005 conflict wasn't the first time the nuclear option was attempted. It was moved on 10 previous occasions by various people, but each time it was attempted, it was either defeated, or a compromise was worked out to save it for future use. The procedure for implementing the nuclear option isn't difficult. Here are the steps involved to exercise it.
1) During a filibuster, a Senator makes a point of order calling for a vote on the measure being considered by the Senate.
2) The presiding officer of the Senate, most often the Vice President of the United States makes a parliamentary ruling upholding the point of order and citing the Constitution of the United States rather than previous Senate rules (which uphold the right of unlimited debate) as the precedent supporting the ruling.
3) A supporter of the filibuster will then “appeal from the chair” by asking whether the Chair's decision will stand as the judgment of the Senate.
4) An opponent of the filibuster then must move to table the appeal.
5) Since motions to table are not debatable, the Senate immediately votes on the tabling and decides by simple majority vote.
6) If a majority decides to table, the ruling of the Chair, that the filibuster is unconstitutional, and that majority vote is enough to bring a bill to vote and to pass it, is upheld.
7) By its action in upholding the Chair, the Senate will have established a new precedent, namely that filibusters are unconstitutional, and that all legislation thenceforth may be passed by majority vote, following a point of order calling for a vote.
In the last national election in the United States, I, like so many others, voted for change in both economic and foreign policy, which means that I voted for Democratic candidates for office right down the line. I wanted the Democrats to have their fair shot at fixing the American Economy and ending the foreign policy debacles of the Bush Administration. I didn't vote for more of the abysmally failed Republican thinking in either of these two areas. And since I view any input from them as clueless, reality-denying, and sure to result in more people losing their jobs and their dreams, I certainly didn't vote for that political party, whose policies have failed, to have any serious inputs into the Recovery Package.
Now, I ask myself, why are they having serious inputs into the Recovery legislation? Why are they capable of persuading people to limit the overall size of the stimulus to under One Trillion Dollars, and to eliminate or reduce funding in the Recovery Act for Head Start, Education for the Disadvantaged, School improvement, Child Nutrition, Firefighters, Transportation Security Administration, Coast Guard, Prisons, COPS Hiring, Violence Against Women, NASA, NSF, Western Area Power Administration, CDC, Food Stamps, Public Transit, and School Construction? In short, why do they have the continuing influence that I and a majority of Americans voted against them having? Why haven't we been able to get the “ins,” “out”?
The simple answer is the existence of the filibuster. Now, I'm well aware of all the arguments out there defending the filibuster on grounds that it is an important element protecting the minority against the tyranny of the majority in the United States. I don't buy that nonsense at all. None of the other major Democracies in the world have anything like the filibuster, and I don't see tyrannies in any of them. Also, the United States has a surfeit of anti-democratic elements in its political system protecting minorities. We don't need an extra-constitutional institution like the filibuster. We have too little Democracy in the United States, anyway. Not too much. And we need to redress the balance if we're to adapt to the challenges that face us.
What is the filibuster worth? The filibuster is not worth the job of a single laid-off American.
So, let's use “the nuclear option.” Let's use it this week. Let's use it for the sake of the Recovery Bill. Let's use it for the sake of all the legislation the Obama Administration has yet to pass. Let's use it for the sake of all the changes our country will need in this very challenging century. And finally, let's use it to drive a stake through the filibuster's heart, and prevent that relic of a simpler and slower moving age from continuing to sap the life-sustaining energy of political innovation out of our Republic.
Of course, this last paragraph was written last February, and doesn't apply now that a health care "reform" bill, however miserable it may be, has passed the Senate. Yet, in the unlikely event that the House refuses to accept the Senate bill, and the Senate has to reconsider its bill, this call for immediate action will again apply. Even if it does pass however, there will be opportunities to use the nuclear option in relation to "cap-and-trade" legislation, a sorely needed new jobs bill, further health care reform needed to repeal the pending bill, educational reform, and energy legislation. All of these represent needs of the United States that cannot wait until after the elections of 2010. Congress can act on them all, if the filibuster is destroyed. We need an end to it, and we need it now!