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Posted 02/19/10 by Christopher L. Matthews

How I Learned to Stop Worrying and Love the Filibuster

Topic(s): Public Affairs/Public Policy Advocacy   

"[The filibuster] encourages moderation and consensus. It gives voice to the minority, so that cooler heads may prevail... The right to extended debate is never more important than when one party controls Congress and the White House…" Senate Minority Leader Harry Reid (D-NV) 2005

"When this country belatedly recognized the wrongs of slavery, there were those who dug in their heels and said 'slow down, it's too early, things aren't bad enough.'…When women spoke up for the right to speak up, they wanted to vote, some insisted they simply, slow down…When this body was on the verge of guaranteeing equal civil rights to everyone regardless of the color of their skin, some senators resorted to the same filibuster threats that we hear today." Senate Majority Leader Harry Reid (D-NV) 2009

These are two opposing views on the filibuster from the same man.  Yet, aside from his revisionist history and absurd comparison of American healthcare to slavery, Reid is only displaying the same intellectual contortionism shown by Republicans who have recently learned to love the filibuster.  There’s nothing particularly new here.

People do, however, harbor a lot of illusions about the filibuster and its effect on the legislative process.  If there were no filibuster, with 59 votes, health care reform and the whole of the Democratic agenda would pass tomorrow, right?

Probably not, because even the world’s greatest Kabuki theater is subject to chaos theory.  Simply put, you cannot change one vote in the U.S. Senate without potentially changing all of them.  Just as importantly, the much-beloved and much-harangued Senate rules are not distant and objective umpires; they are essential players in the show.

Think of the 2000 presidential election.  If there were no electoral college, many people assume that Al Gore would have become president.  Perhaps, but if there were no electoral college, we can assume that George Bush would have run a much different campaign.  The Senate works in much the same unpredictable manner.  We can see this most clearly from two perspectives in particular – the individual member and the party leadership.

Individually, there are a myriad of factors that politicians consider when making decisions.  Among them are electoral concerns, ideology, internal party power, principle, and personal relationships.  Each has a different value depending on the politician.  Count the good and bad and come out with an answer on balance.  The problem is that the factors are never static; nor are they independent of the rules.

For example, as the 60th vote on healthcare, everything seemed to depend on Senator Ben Nelson (D-NE) and he was able to make the biggest, most unrealistic demands in return for his acquiescence.  Among his colleagues, he stood to gain the most internal leverage for his support; or to become the Most Reviled Member of the caucus for his opposition. Much to the chagrin of reigning MRM Joe Lieberman, Nelson backed the healthcare bill for a bag of magic beans and the stipulation that Nebraska would receive favorable treatment-- at least until the House-Senate Conference met and summarily dumped his provision.

Today, however, neither the pressure nor the benefits may exist for him.  Members willing to cast the winning vote, will often refuse to pledge a tough vote that could fail (“Why should I take the hit for nothing?”)  Conversely, they are less likely to side with the party when there seems to be an excess of support (“Why should I take the hit when you don’t need me?) In both cases, the upside is a free vote to proclaim “independence” without affecting the party agenda.  Without the filibuster, Reid would simply have nine senators thinking they might be surplus instead of the fifty-nine now thinking they might be sacrificial.

From Leadership’s perspective, the partisan margin is directly proportional to how far away from the center they can move and still pass a bill.  With 59 Democrats and no filibuster, an ideological contingent would move the legislation leftward until they lost the more centrist members of the caucus.  Then the conversation would be much the same, but focused on securing 50 rather than 60 votes.

The only exception to these realities comes in confirmation votes.  Those are simple ‘yes’ or ‘no’ decisions with no room to move left or right, and are based mainly on party discipline.  The grand irony is that these most straightforward of votes are the ones that truly grind the Senate to a halt.

After Shays Rebellion, Thomas Jefferson wrote to James Madison that, “A little rebellion now and then is a good thing.”  One might say the same for a little chaos.

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