Why Democrats Should Kill the Filibuster

Did Robert Caro read his own book?

In his otherwise excellent book The Future of Freedom: Illiberal Democracy at Home and Abroad, Fareed Zakaria laments that the United States is choking on too much democracy. You’ve heard the argument before: Too many presidential primaries, too many referendums, etc., lead to gridlock, which Zakaria (quoting Jonathan Rauch) terms “demosclerosis.” At the moment, though, the country is being run by a legacy president who failed to win a plurality in the last election. A significant obstacle he must overcome in attempting to impose the will of the 47.9 percent of the electorate (and five unelected Supreme Court justices) who elevated him is the filibuster, which allows one person to block the will of up to 59 senators.

The Senate Rules Committee held a hearing today on a proposal by Senate Majority Leader Bill Frist to restrict filibusters against nominations. (For a quick Slate primer on how filibusters work, click here.) Frist is obviously seeking to break the legislative stalemate on President Bush’s judicial nominees, but he maintains that his overarching goal is good government:

For almost all our nation’s history, filibustering nominations was unheard of and unknown. It was unknown when the cloture rule was adopted in 1917. It was unknown when the rule was extended to nominations in 1949. The renowned filibusters of the 1950s and 1960s never involved filibustering a judge. Sen. Richard Russell of Georgia led those filibusters, but even in the face of growing judicial activism, neither he nor his allies ever filibustered a judge. Obviously, some respected traditions have changed.

But abuse of the filibuster is hardly limited to judicial nominees. A much-cited 1995 survey by the Brookings Institution found that filibusters had gone from an average of one per Congress in the 1950s to 35 in the 1991-92 Congress. Ironically, the increase was likely due to an effort to reform rather than abolish the Senate filibuster; after Senate rules were altered in 1975 to make filibusters less disruptive, its use became more respectable, and senators naturally came to use the tool more often. Frist’s proposed reform would allow—only in the case of nominations—a succession of cloture votes to end a filibuster. The first would require 60 votes (which is what’s required now). Subsequent cloture votes could then be held requiring 57 votes, 54 votes, and, finally, a simple majority to end a filibuster.

If Frist were serious about reforming government, he would propose eliminating the filibuster altogether, rather than making filibusters easier to shut down in the one area where they’ve lately been a nuisance to Republicans. (Chatterbox should note that declining-majority cloture was earlier proposed—though not restricted to nominations—by Democratic Sens. Tom Harkin and Joe Lieberman in 1995, back when filibusters were a nuisance to Democratic President Bill Clinton.) Like the Electoral College and the representation scheme of the Senate, the filibuster frustrates majority rule. Obviously the Senate is here to stay, and so, Chatterbox fears, is the Electoral College. But the filibuster ought to be easy to kill. Respectable good-government types like the late Elliot Richardson long ago pronounced it a destructive anomaly. Why the hesitation?

Frist cites some procedural gobbledygook from black-belt parliamentarian Sen. Robert Byrd to the effect that most filibusters were on “motions to proceed,” and these could be avoided by having the Senate majority leader offer non-debatable motions during the “Morning Hour.” But if it really were easy to avoid most filibusters, the problem wouldn’t come up as often as it does. Frist says that the Morning Hour gambit isn’t available at all on nominations, hence the need to rein in filibusters in that category alone.

The real reason for Frist’s excessive caution is opposition by minority-party Democrats, who would like wholesale elimination of the filibuster even less than its restriction in the case of nominations. Their partisan motive is obvious, but in the grand scheme of things the filibuster is, as Norman Ornstein points out, “a conservative instrument” because it’s the enemy of activist government. Where’s the Democrats’ sense of history? Apparently it’s been subcontracted out to Robert Caro, who, according to today’s New York Times, has “warned lawmakers against diluting the rights of the minority even as he noted the filibuster was a potent tool used against the civil rights legislation championed by Senator [Lyndon] Johnson.”

But in the latest volume of Caro’s Johnson biography, Master of the Senate, the filibuster isn’t portrayed as sometimes good and sometimes bad. It is shown (accurately) to be unambiguouslybad. He refers to it as the Senate’s “peculiar institution,” which of course is an allusion to slavery. He shows how it was repeatedly used to protect Jim Crow. He crafts a hero narrative around Senate Majority Leader Johnson’s dazzling triumph over various rococo Senate obstructions to pass the first civil rights bill in nearly a century. Surely Caro grasps that the larger lesson isn’t the greatness of Lyndon Johnson. It’s that it shouldn’t take somebody of unparalleled legislative genius to make the rusty machinery of the Senate do what the country demands.