The salient point that seems to be missing from the recent discussion of the fillibuster seems to be that there are two wholly different objectives for which it can be employed. I'm uncomfortable with the seeming hypocrisy of arguing against the fillibuster now when I was very much for it only a few years ago. But I think there's a legitimate difference between the two situations.

When the Democrats fillibustered Bush's judicial nominees, I believe they did so because of honest (and legitimate) substantive concerns about the nominees. You could argue, even, that Bush was trying to push through nominees that never would have passed a popular referendum. It's fair, then, for the minority to use the fillibuster when it believes it's representing the will of the people.

Of course, that situation would be impossible to actually define. But there are pretty clear instances when the use of the filibuster in no way upholds that spirit. The problem right now is that there are incentives in the senate for obstructionism for obstructionism's sake. The fillibuster is now being used as a purely political tool. If the Republicans fillibuster universal health care, for instance, it's certainly not because they believe in good faith that they're protecting the will of the people.

So, as much as the hypocrisy leaves a bad taste in my mouth, I do think there's a principled argument for getting rid of the fillibuster now, given what it has evolved to.

>Now that the filibuster doesn't even require excess speech, it's come completely unmoored from the right to unlimited debate.

Ezra, you have the solution right there: just make them talk. Enough of this polite, taking-it-as-read stuff. Stand them up there for 56 hours straight explaining to America why they want old people to die in the street (or whatever the issue may be). Then require more moderate senators to get on board with those views. Watch as the lock-step crumbles.

I'll make the obligatory case for real filibusters, at least as a temporary measure. For one thing, however they arose, there is something very American about the filibuster. For several generations, it has marked the biggest difference between our Senators and the faceless MPs of other nations. The disruption and hassle of mounting a real filibuster, with Senators sleeping on cots in the hallways and media circling about waiting for the moment of surrender, is an iconic American spectacle. To do away with the filibuster is to abandon that particular piece of Americana.

That said, it's obviously true that the filibuster as a positive act has been effectively abandoned for some time now. The minority party merely signals its intention to filibuster, the majority (lacking 60 votes) sighs defeatedly, and everyone moves on to other business. It would be far far better, and worth the time, to make the filibusterers follow through on their intentions.

Now, it may be, in this era of partisanship. That even real filibusters will be just as numerous as todays de facto filibusters and just as intolerable obstacles to governing. I tend to doubt it. But if so, I imagine it will be much easier to do away with the filibuster if the public has had some tangible demonstration of its pernicious nature.

Get rid of it now and you'll find yourself in a 360 degree shitstorm with very little in the way of wet weather gear.

agreed. problem is, "we" don't decide what the Senate should be. The Senate does. And, notwithstanding the exevrable "nuclear option," the supermajority required to change Senate rules still stands at 67. If the majority had that many votes, the filibuster would be moot.

"We" could change that rule, but it would require EITHER a Constitutional Amendment passing with two-thirds approval in both houses of Congress and ratification by the states OR a "Convention to propose amendments" to the United States Constitution, as provided for in Article V, which would allow a simple majority of the convened to pass amendments to be ratified by the states. Of course if we get to that point, we won't be debating the filibuster...

Back when it was cool for Dems to love the filibuster, I was a huge opponent of the nuclear option. Now I'm just a flip-flopper.

We like legislative action but we don't get it in our system that seems designed for gridlock. Gridlock is just a euphemism for small-C conservatism. We need action and I believe countries and laws get progressively ... progressive.

And besides, all this talk of the good things the filibuster has done ignores the fact that the things it's blocked operated in a political context of a filibuster. Some of these things wouldn't have been attempted, or would have still failed, if there was no filibuster. Other things would have been quickly overturned once the political backlash set in.

Absent a filibuster, I'm sure there will be less of this political "backlash" to overreach by progressives than there will be to conservatives.

The Senate already has 6 year staggered terms to insulate the body from popular whim AND it awards it's seats in manner that massively overrepresents the voters in small states. Adding a third internal check on popular sentiment like the filibuster to the body is just ridiculous.

The point isn't for all of you earnest and wonderful writers to go on the record opposed to it. Why don't some of you call up the Senators themselves and ask what THEY think? It's their internal rule.

The "either/or" you pose is somewhat flawed too. The Senate is not, officially, a "60 vote" institution even now. Indeed, Bush got all sorts of his legislation passed on the basis of simple majority votes. The positive function of the filibuster (when working properly) is to raise the bar for passage only in those situations where the minority finds the majority's proposals so extreme that they are willing to obstruct it.

The problem today is that: 1) the GOP is abusing this process by literally filibustering every piece of substantive legislation and 2) neither the Democrats nor the media are pointing out how much of a huge historical perversion of the filibuster power this is.

I think that some sort of extraordinary supermajority power is an essential part of the democratic process. Congress has passed too many horrifically bad pieces of legislation, often supported by a temporary majority, to think that a simple majority system adequately protects minority GROUP interests (to say nothing of minority party interests). So I think it's important to raise the bar sometimes. It just becomes dangerous when we all start acting like it's an innocent procedural rule instead of an extraordinary measure.

"...the conversation will be about the intentions of the majority Congress rather than the problems of the filibuster. And that's the wrong conversation.

Who cares about 'conversation'? Let's have a plain ole 'debate'!

Absent a filibuster, I'm sure there will be less of this political "backlash" to overreach by progressives than there will be to conservatives.

See, I don't know about that. Especially because all the conservatives would really need is a temporary bubble of political power. Without the filibuster, it's very possible that American social democracy would have ended in 1995. Think about it -- 50 votes to kill Social Security, Medicare, Medicaid, etc, etc...

Even if they faced a huge backlash as a result, it wouldn't really matter for them. The likelihood of RE-passing something like Medicare is small enough to be astronomical. More likely you'd have a bunch of short-lived policy experiments that never developed enough of a knowledge or experience base to be effective before being snuffed out by a new majority.

And that kind of dysfunctional government would be far better for long term conservative interests than gridlock ever could be. The GOP message absolutely DEPENDS on the idea that government doesn't, and can't work. "We can't pass health care reform" is bad, but "We passed health care reform but it only lasted 8 years, confused everybody, then was voted out of existence by a temporary right wing majority voted into office almost entirely on bullshit social issues" is worse.

"Rather, I'd argue that the central question is "legitimacy." We have a party-based electoral system that, particularly in the Senate, pushes towards a relatively even division of power. The question then becomes whether we're more comfortable with the consequences of a system where the minority can block good policy or the majority can pass bad policy. I'd prefer the latter: The policies of politicians we voted for have more democratic legitimacy than the system's structural preference for inaction. Elections should be about the bills passed by the majority rather than the obstructions erected by the minority. "

The problem with this sentiment that I'm seeing between you and Scott Lemieux, in particular, is that you're working from the vantage point of an electoral system that DOES NOT EXIST. Our Senate elections don't reflect the overall opinion of the country in any one election, for the simple reason that only 1/3 of all Senate seats are contested in a cycle in no more than 34 of 50 states at one time. How exactly you can make the argument that the mane up of the Senate necessarily reflects the politicaly will of the country in a particular election when roughly 1/3 of all states don't even vote of a Senator in a given year I don't really know.

And, obviously, this sort of system yields a fact of control that's independent of votes. 2010 could very easily yield a situation in which Democrats get soundly defeated across the country in Senate elections yet still come away with a majority of the seats in the Senate. Would that be a reflection of the country's will to have the Democratic Party running the Senate?

Obviously debates over the filibuster or anything else are all fine and good, but at the very least we should approach them from the standpoint of the processes we actually have, not some abstract theory of principle based on something that simply doesn't exist.

See, I don't know about that.

I'm thinking of other western democracies -- they got all the things we progressives want, with none of the gridlock hangups we got.

Those 50 votes to kill those programs would have never happened. And if they would have, people would have freaked.

And that kind of dysfunctional government would be far better for long term conservative interests than gridlock ever could be.

This is incorrect. American government has way too many points at which policy fails, and this is one thing that prevents wide-ranging policy (e.g. Universal health care) from passing. Eliminating this aspect of our system doesn't guarantee progressive policies, but it sure helps.

Everywhere else you got democracies in which majorities pass their programs at will. Granted, these are usually coalitions of parties, but in places like Britain you get more progressive policies without the so-called "checks" the filibuster provides.

Here's a majoritarian argument for the filibuster:

Because each state gets two senators, regardless of population, it will sometimes be true that senators representing a majority of the American population are a minority in the Senate.

In fact, I believe that when the Democratic minority began filibustering Bush's judicial nominees, they represented a majority of the population.

The filibuster thus should prevent senators who represent a minority of the population but a majority of Senate seats from overriding the will of the minority Senators who represent the majority.

Thoughts?

But it's unclear whether we're behind other Western democracies because of our system or because we just have a more conservative electorate. If it's the latter, a more democratic process could result in a larger number of very bad policies becoming law.

I mean look at the House, which has relatively few minority protections. The House GOP is one of the most terrifyingly conservative bodies in national politics. And when the Republicans control the House they show no qualms in railroading through regressive policies, regardless of how poorly they poll. With an anti-government philosophy, you win by derailing policy and shredding the safety net even if you lose any given election.

Think about it -- if they kill, say, Medicare, individual members might get kicked out in the next election. But that doesn't really matter because the PARTY has accomplished a huge goal. It's very unlikely that the next cohort of Dems would be able to cooperate enough to put something like Medicare (or any of the Great Society/New Deal statutes) back into place, especially given modern budget constraints. In fact it might be years before the Dems find a legislative solution, during which time millions of once-eligible people would be hovering in a policy vacuum.

And of course the GOP would eventually get back into power no matter how unpopular they are because they're still the only American opposition party -- eventually a Dem scandal or hot button social issue would come along, with the GOP as the only alternative option.

In any case, I agree the filibuster needs to be weakened. But I think having some mechanism to force a supermajority is absolutely essential for our democracy.

The filibuster thus should prevent senators who represent a minority of the population but a majority of Senate seats from overriding the will of the minority Senators who represent the majority.

Doesn't work. The Senate is not a body that reflects or represents the population of the United States. It reflects the somewhat arbitrary drawing of state boundaries. It's also the exception, not the rule, to have a Senate composed entirely of elected members.

The best way to force change on the Senate is for big states to split into smaller states.

Get rid of the filibuster. And, while we are getting back to the Constitution, expand the size of the House so that every Congressman represents the same number of people. That would also help out with the Electoral College. In 2009, why are we limiting the size of the House to the number of seats that can fit in a particular room? It is asinine. Let the 435 most senior in the big room, and have satellite rooms with some technology. If the President can sign a bill in Denver, why can't a House member vote remotely?

Patrick:
"expand the size of the House so that every Congressman represents the same number of people."

They do that now. Each of the 435 Congressional Districts in the U.S. includes approximately 650,000 people. The average after the 2000 census was 646,946. The only point of expanding the House would be to reduce the number of people one Congressperson represents. Not a bad idea, in my opinion.

My remembrance of civics is that filibustering only applies to cloture motions, i.e., a motion to cut off debate. Once cloture is agreed to, the bill is voted on and passes (or not) on a majority basis. Cloture votes don't REQUIRE 60 votes -- depending on the minority's intentions to filibuster or not. But it is possible and not uncommon for someone to vote for cloture but vote against final passage.

Consequently, I am confused by the fact that final passage of the stimulus package required 60 votes. Cloture had already been agreed to -- debate was over. Filibuster is extended debate. If debate is closed, where is the opportunity to filibuster? If I am correct, there was no need for Sherrod Brown to rush back from his mother's funeral. Yet everyone, including Sherrod Brown, disagreed with me and acted as though final passage required a filibuster proof majority.

Am I wrong?

Consequently, I am confused by the fact that final passage of the stimulus package required 60 votes

That was to waive the Budget Act requirement that spending bills shouldn't increase the federal deficit. Not cloture.

mb. No, you're right, the filibuster was not a consideration - the stimulus was actually under a different rule, which is that "unfunded" spending bills require 60 votes to pass.

Eric, Ezra - The problem with "Make Them Actually Filibuster" is that it puts much more strain on the non-filibuster side, who need to basically keep everybody available on short notice, while the filibuster side only need one person.(http://obsidianwings.blogs.com/obsidian_wings/2009/02/filibusters-again.html).

Eric, Ezra - The problem with "Make Them Actually Filibuster" is that it puts much more strain on the non-filibuster side, who need to basically keep everybody available on short notice, while the filibuster side only need one person.

Well, for one thing, this ain't a part time job.

For another, you're wrong. The filibustering party has to talk constantly, with the camera on them. From a political perspective, this rapidly becomes ridiculous and contemptible in the eyes of the public. From a physical perspective, it's quite taxing. Imagine one group of 48-58 guys and girls who just have to hang around the football field all day in case something happens; then imagine another group of 42 guys and girls who have to make sure one person is running at full speed 24 hours a day. Who gets tired faster? The guys who have to be right 100% of the time, or the guys who have to be right once?