By Ruth Marcus
Wednesday, January 27, 2010;
This won't comfort Democrats mourning the loss of their filibuster-proof majority, but the existence of the filibuster is, on balance, a good thing.
The filibuster is frustrating, literally and intentionally: It frustrates the will of a simple Senate majority. From a purely situational view, this is infuriating if you are trying to pass crucial legislation or confirm a worthy nominee. It is wonderful if you are trying to block something bad from happening -- especially if you don't have the comfortable backstop of a presidential veto.
The current Democratic impatience with the filibuster and demands to adjust or abolish it are as situational as Republican praise for the device. The capital is a place where memories tend to be conveniently short.
Five years ago, Republicans were thundering against the outrageous assault on democracy and majority rule embodied in Democrats' use of the filibuster against George W. Bush's judicial nominees. Democrats were writing sonnets to the practice as a necessary bulwark against Republican overreaching.
That the roles are now reversed does not answer the question of which claim is correct. The filibuster makes the process -- take a deep breath, Democrats -- fairer. It enhances the opportunity for real debate. On the major legislation for which its use was meant, the filibuster tends, overall, to create a better end product, one more likely to gain wide acceptance among voters.
No doubt, the filibuster has been overused in recent years, snarling Senate action on even the most routine matters. But such abuse is evidence of a deeper problem -- the increasing polarization of politics -- and not its cause.
In terms of fairness, the filibuster demarcates the difference between the Senate and the House. In the House, a dictatorial majority can prevent the opposition from playing any meaningful role -- even from offering amendments. The existence of the filibuster in the Senate ensures that, at least in one chamber, the minority gets its chance to try to change the end product.
As political scientist Gregory Koger, an expert on the filibuster, writes, the Senate minority's ability to gum up the works requires that "the majority and minority party haggle over the process for debating major legislation to ensure that members of both parties are able to deliberate fully. Without the minority party's power to filibuster, it is likely that the majority party in the Senate would be no more generous than its counterpart in the House."
A fair process is an end in itself; it also contributes, as a general matter, to an improved result. Not always, of course. Filibusters can be used for odious purposes -- most notoriously, to block anti-lynching and civil rights legislation. Overall, however, a product that can secure the votes of 60 senators is more likely to be one that can achieve a national consensus as well. It is no accident that the Senate health-care bill is better than its House counterpart.
If you tend toward political extremes you are not likely to agree with this assessment, but take comfort in the assurance that the filibuster still protects your side against the wildest excesses of a temporary majority. Just imagine, Democrats, what congressional Republicans and President Bush could have done -- absent the right to filibuster -- during the four-plus years of complete majority rule.
The most trenchant criticism of the filibuster is its overuse. The Senate has become a body that requires 60 votes to get out of bed in the morning. This degree of gridlock was not intended. "From its earliest incarnation," congressional scholar Norman Ornstein notes, "the filibuster was generally reserved for issues of great national importance, employed by one or more senators who were passionate enough about something that they would bring the entire body to a halt." No more. Cloture motions -- the device used to end a filibuster -- were once a rarity. Now they are routine. The biggest spike has come since Republicans became the minority party in 2007, with a record 139 cloture motions in the last Congress. The current Congress is on a course to match that.
A more polarized Senate, with almost no ideological overlap between the parties, has accompanied, and most likely produced, a more fractious process. Changing the rules would treat one symptom -- delay and gridlock -- at the cost of exacerbating the underlying disease: excessive partisanship and ideological extremism.
Myself, I'd rather live with the filibuster.