I have a problem with the "nuclear option," Senate Majority Leader Bill Frist's threatened alteration of Senate rules to prevent filibusters against judicial candidates. I believe it doesn't go far enough.
As a liberal Democrat, I don't like the right-wing hacks President Bush seeks to elevate to the bench any better than Ted Kennedy does. But as a small-d democrat, I can't condone the 60-vote "supermajority rules" norm that the filibuster, in its most recent form, has imposed on the Senate. So when Frist today pledged to limit his ban to filibusters against judicial nominees (as opposed to banning all Senate filibusters), I was disappointed. In my mind's eye, I saw Frist in scrubs removing just half a swollen appendix. Hey, sawbones! You forgot the other half!
Pathologically devoted readers of this column will recall that I urgedDemocrats to lead the charge against the filibuster back in Feb. 2001, when the Senate was, as now, controlled by Republicans. At the time, the tactical case was easier to make, because the Senate was split right down the middle—50 Republicans, 50 Democrats, and Vice President Dick Cheney casting the tie-breaking vote. With a margin so thin, the Republicans would need all the Democratic votes they could get, filibuster or no filibuster. I further pointed out that the Senate was likely to go Democratic soon (as it did) and that when that occurred Senate Democrats would want to rule by simple majority. As Norman Ornstein has pointed out, the filibuster is fundamentally a "conservative instrument," because it's usually liberals who want the government to do things and conservatives who want it not to do things. More recently, Jonathan Cohn observed in the New Republic that the Democratic fixation on saving the filibuster is a poor substitute for selling the party's policies to a voting majority.
Things are a bit different today. Democrats now hold only 44 seats to the GOP's 55 *, which makes blocking Republican-sponsored legislation much more difficult. (The hundredth seat is held by Jim Jeffords of Vermont, an independent.) There's no denying that if we abolished the filibuster now, Republicans would have an easier time winning legislative victories. As things stand now, Democrats hold three more than the necessary 41 votes to block foolhardy legislation proposed by Republicans. Without the filibuster, they'd be seven votes short. The GOP agenda would become the law of the land.
But what agenda would that be? Privatizing Social Security? That's opposed by a significant proportion of the president's own party. Establishing a flat tax? Never going to happen. According to a recent Wall Street Journal poll, fully 41 percent of all Republican voters oppose even Frist's half-elimination of the filibuster! If that percentage were reproduced in the Senate, the GOP could successfully filibuster its own reform!
The fact is that the GOP doesn't have an agenda. It has impulses: to cut taxes, to increase Pentagon spending, and to mollify the Christian right wherever possible. Does it act on these impulses? Of course. But what mostly gives the party appeal to the electorate is its ability to scream and yell while seldom being granted the opportunity to ban abortion or eliminate the Securities and Exchange Commission or declare war on France. It stirs things up satisfyingly, while never requiring anybody to pay the price. If the Senate eliminated the filibuster, Republicans would have to choose between putting their money where their mouth was or just shutting up. Either choice would put Democrats in a better political position than they're in right now.
The filibuster is one of three significant obstacles to the principle of "one man, one vote" imposed by the Supreme Court on state governments but strangely absent at the federal level. The other two are the Electoral College and the representation scheme of the Senate itself, both of which grant power to the states as political entities at the expense of the national electorate. Of the three, ridding ourselves of the filibuster ought to be the easiest, because it isn't written into the Constitution. All it takes is a Senate vote on a rule change.
My guru on all three of these issues is Hendrik Hertzberg of TheNew Yorker, who has written many inspiring pleas to render the federal government as democratic as state governments are required to be. This time out, though, Hertzberg is hedging. In a New Yorker "Comment" from the March 14 issue, Hertzberg writes,
The filibuster allows a minority within a legislative body to thwart the will of a majority….Fifty-one senators—a majority—can represent states with as little as seventeen percent of the American people. Sixty senators—enough to stop a filibuster—can represent as little as twenty-four percent.
So far, so good. But that's only "theory," Hertzberg writes. "What about reality?"
Well, if each of every state's two senators is taken to represent half that state's population, then the Senate's fifty-five Republicans represent 131 million people, while its forty-four Democrats represent 161 million. Looked at another way, the present Senate is the product of three elections, those of 2000, 2002, and 2004. [That's because one-third of the Senate faces re-election every two years.] In those elections, the total vote for Democratic senatorial candidates, winning and losing, was 99.7 million; for Republicans it was 97.3 million. The forty-four person Senate Democratic minority, therefore, represents a two-million-plus popular majority—a circumstance that, unless acres trump people, is at variance with common-sense notions of democracy. So Democrats, as democrats, need not feel too terribly guilty about engaging in a spot of filibustering from time to time.
It's a clever argument—the antidemocratic nature of Senate representation creates a phony Republican majority that Democrats are justified in thwarting. But the perfect is the enemy of the good. The Senate ought to be eliminated, but it's a pretty good bet that it isn't going to be. That being the case, why not reach for the low-hanging fruit? I feel confident that if the Democrats had a Senate majority, Hertzberg would agree with me that it's time to democratize the Senate as best we know how.