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Chris Bowers' frontpage campaign to reform the filibuster draws a fair amount of opposition, and a lot of it is based on beliefs that are in error.  This diary will correct some common myths.  

They are:
"The filibuster saved us from Bush's worst ideas"
"The filibuster would be fine if Harry Reid would just make the Republicans talk!"
"We're going to need the filibuster soon, better keep it."

(Hopefully I haven't caricaturized these common views, but in the process of generalization I may have smoothed out some nuance, naturally I'm sure you'll let me know if your version of one of these is different in some important regard from what I reply to)

The filibuster stopped practically none of the Bush/Republican 2001-2007 Agenda.  The most frequently cited example here is Bush's failed campaign to privatize Social Security.  The filibuster had absolutely no role in halting this plan.  None.  There were no failed cloture votes held on Bush's plan.  His plan did not even pass the filibuster free House of Representatives under the leadership of Tom "The Hammer" Delay.  Delay could not pass such a bill because it was deeply unpopular.  Republicans would not vote for it.  Bush's scheme failed because it didn't have the votes to pass on a straight majority vote.  

For the rest, it is true that Bush's original tax cut was passed under reconciliation in 2001 which at least limited the bill's effect to 10 years (and Republicans have been the primary users of reconciliation over its history further deflating any useful point the filibuster might serve), but we'll see if Democrats can find the political courage to let even the portions aimed at the rich expire on schedule.  Beyond that some major items Bush got through the Senate 2001-07:  

Medicare Part "D"
Two of the worst Supreme Court justices ever
Oodles of terrible Judges
The 2001 AUMF
The 2003 AUMF
Several free trade agreements
PATRIOT Act (2001)
PATRIOT Act re-authorization (2006)
Bankruptcy Reform Act
Military Commissions Act
"partial-birth abortion" ban
The Easter Sunday fiasco law federalizing Terri Schiavo's case  

Where was the filibuster in any of these?  There's really several other horrid things (like telco immunity for violating FISA) that I could list from the 110th Democratic congress, but that seems to be cheating.  Against all this you can possibly credit the filibuster for John Bolton not getting Senate confirmation to his post as UN Ambassador (which he still got through a recess appointment), and sustaining the ANWR drilling ban.  I'm not even positive the filibuster has anything to do with the latter.  

Neither Harry Reid nor any other Majority Leader can "make them talk."  It's a nice idea, that a strong Majority leader would use some arcane Senate procedure that requires the minority to actually stand in the well wearing diapers and reading recipes in order to maintain a filibuster, but there is no way to do this under current Senate rules.  This idea was very popular in 2007-08 during the early days of the first post-netroots Senate Democratic majority.  It was based on our collective (understandable) ignorance of Senate procedure.  We've since learned better, though clearly some have missed this important story.  Jimmy Stewart has passed away, and with the rule XXII changes in 1975 (that lowered the cloture threshold from two-thirds to three-fifths), so did his idealized style of man against the mob Huey Long unending-speech filibuster.  Now the minority has to do very little to thwart the majority:  Park 1 member in the chamber, object to unanimous consent requests, and suggest the absence of a quorum if less than 50 Senators are present.  The majority has to sustain quorum or the Senate goes into recess, which perversely means they have to stay close.  The costs for filibustering are all borne by the majority.

The filibuster cannot ultimately save any liberal program or law you care about from a Republican trifecta.  This is, I think the real source of the current discomfort with the filibuster reform efforts.  Democratic fortunes are on the downswing and Republican insanity has surpassed all fears.  While Obama's veto should prevent their worst ideas from becomming law during the 112th Congress, what if they recaptured the Presidency?

The answer is that the filibuster is a false hope that won't stop them.  Aside from the long history of the filibuster only being used effectively by conservatives to block justice and progress, the real lesson here comes from the Republican majority of the 2005-2007 (109th) Senate.  Specifically, the scheme to invoke the "Nuclear Option" to end debate on some odious Bush Judicial nominees by majority vote (See page 5 for how).  It doesn't really matter what you think about the legitimacy of that ploy; Republicans were prepared to do it, and it would have succeeded.  The Judges would have been confirmed, and maybe some history book would put an asterix next to their names, their rulings would be as real as any other Federal Judge's.

The latter is exactly what happened as the Democrats "preserved" the filibuster by capitulating and giving the Republicans their nominees.  Why did the "Gang of 14" do this?  Because they knew the Nuclear Option would work.  Hailed at the time as a great bi-partisan compromise, it was the compromise of a man who gives a mugger his wallet and says "just don't hurt me."  The mugger could still hurt him, but no longer has any interest in doing so.  

This has become a strange unspoken or unrealized truth to Senate procedures:  the Senate can revert to majority rule any time the majority wants to.   The filibuster is a non-binding polite convention, useful at times perhaps, but ultimately not a real barrier if the stakes are high enough.

The nightmare scenario: a Republican administration and Congress sweep into power in January 2013 having run openly on repealing Social Security.  The right wing noise machine has somehow contrived to twist public opinion into believing this would be a good idea.  The House passes a repeal bill, and now it is down to 41 brave Democrats to stand up for FDR's legacy.

Most dubious is perhaps the idea that 41 Democrats both liberal and courageous enough could be found to filibuster something like that, but it really crosses into absurdity if anyone thinks the Republicans would just give up on a chance to destroy the Crown Jewel of the liberal welfare state.  They like the filibuster as it usually works in their favour, but given a choice they will sacrifice the filibuster if they have to.  I think Bush's scheme to privatize it in 2005 speaks to this.  After all, they only had 55 Senators.  Why weren't they afraid of a Democratic filibuster?

That's the real case against keeping the filibuster.  It only works when the majority tolerates it.  It's essentially a shared fiction, a communal lie.  This goes for any modified filibuster you have in mind too; if it ever really blocks the right from something they badly want, it too can be declared unconstitutional and overridden.  If you still believe some means of minority obstruction is needed in the US legislature, you need to advocate for a constitutional amendment to embed such a thing beyond the reach of Senate parliamentary tricks.  In the meantime, tell the Senate to set aside childish things.

Originally posted to Scientician on Wed Sep 01, 2010 at 04:23 AM PDT.

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