Filibusters

by eriposte

There has been some debate in the progressive blogosphere about the merits of supporting filibusters - as a *general* principle (not just for opposing the appointment of radical judges). Mark Schmitt and The Next Hurrah are in the pro-filibuster camp (for instance) and the anti-filibuster camp has people like Nathan Newman and Matthew Yglesias.

I am in the pro-filibuster camp (not just for short-term reasons but for the long-term as well) and in my view, Nathan and Matt are well intentioned but wrong on this one.

Consider these extracts from this post by Nathan:

As a populist democratic (small d), I hate the filibuster and unelected judges on principle and have implicit faith in majority rule -- as bumpy a political ride as that implies.

That said, supposed pragmatists in the blogosphere chide me for not recognizing that rightwingers could wipe out progressives laws.
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A past Congress can restrict the power of a future Congress only in very limited ways.

What is remarkable, on the other hand, is that conservatives have the ability to eliminate much of the welfare state on a majority vote through the budget process, yet are afraid to do so for fear of the political backlash. Progressive government is protected by popular support, not the filibuster.

Conservative opposition to new legislation, though, depends utterly on the filibuster. Precisely because, say, national health care would be popular and almost impossible to repeal once enacted, even with no filibuster -- as many conservatives acknowledge -- progressives wouldn't need the filibuster to protect it, yet conservatives depend on the filibuster to prevent national health care from being enacted.

First of all, I simply do not share Nathan's "implicit faith in majority rule". This is not just because I refuse to put blind faith in the "good" intentions of people I will never know (who will run the country in future generations). History is replete with instances of how unchecked, majority rule has led to devastating consequences.

Secondly, I suspect there is a bit of misunderstanding about what a democracy is and what should be allowed in a democratic system. The success of Western-style democracies (which have since spread to other parts of the world) is based not just on democracy (or loosely, majority rule), but also on the often anti-democratic principle of personal liberty. (Fareed Zakaria, for instance, discussed this quite eloquently in his book "The Future of Freedom".) An example - the majority of people in this country evidently do not approve of gay marriage (I'm not talking about civil unions here). So, if we were a pure democracy, gay marriage would be very difficult to legalize in this environment. However, we are not a pure democracy. We also believe in the concept of liberty and equal rights. That means a democratic majority cannot take away the rights of the minority, under the guise of "democracy". (In this case, for example, the balance between democracy and liberty is likely to be decided, in my view, by one of the arms of Government that is present to ensure balance of powers - the judiciary.)

The filibuster is a tool that seeks to achieve balance of powers. Does this mean it will always be used in the right way? Of course not (as Nathan points out). But this is not a reason to get rid of the filibuster at all. All rights that defendants have, for example, were not designed to protect criminals, even though they sometimes do. They were designed to protect innocent defendants. This is the very nature of law and constitutional rights. The filibuster is to be viewed in similar light (replace "criminals" with "corrupt minorities" and "innocent defendants" with "noble minorities", for example). Getting rid of it because it is misused would be no different than getting rid of Miranda rights (to name just one example) because those are exploited by criminals.

The way to solve the problem of abusive majorities or corrupt minorities (who would filibuster progressive laws) is not to remove balance of powers. One solves it by ensuring that the people of the country are exposed to the real facts about the laws and issues being debated and not misled by self-serving politicians or activists, or the insidious, corporatist media. As Nathan himself says: "Progressive government is protected by popular support, not the filibuster". If this is the case, then we need to recognize that the reason getting progressive government or laws in place has been so difficult of late is the illiberal conservative media that makes it almost impossible to get the facts to the people and a Democratic party that is willing to sacrifice victory in the war in order to win a few private battles, time and again. These are the real problems that need to be attacked. Not the filibuster.