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The Upper House

There has already been plenty of mockery in blogovia about Thomas Geoghegan’s Op-Ed about the filibuster. I don’t really understand the article at all. He seems to hold that the inferred sentiments of individual founders (in op-ed newspaper columns, yet) should have more constitutional weight than the actual text of the Constitution itself. But I’m not terribly interested in the question of the filibuster’s theoretical Constitutional status—the possibility of a Supreme Court finding the filibuster unconstitutional in the next ten years seems utterly remote to me.

Nor, really, am I interested enough in the filibuster itself to defend it or attack it. Twenty years ago, if I remember correctly, I saw an out round in an APDA tournament where the gov team posited removing the filibuster, and it was viewed as a tight case—not like blind-people-should-get-hunting-licenses, but the feeling at the party was that the opp was screwed. Ever since then, I have felt a grudging fondness for the filibuster, not based on its merits but on that debate party.

I do think that it would be possible to reshape the rule to prevent a determined and disciplined 40-vote bloc from stopping all progress in the Senate while still allowing a passionate minority to extend debate indefinitely in unusual cases. Allow, for instance, a limited number of such delayed bills at once, while not allowing a bill that is being filibustered to be withdrawn without a vote. Or something. The Senate can make its own rules. That’s in the Constitution. If you figure out what you want the filibuster to do (extend debate indefinitely while the passionate minority has a chance to whip up public sentiment against a bill, to prevent a majority coalition from steamrolling through changes of which the public is unaware) and what you want it not to be able to do (effectively create a supermajority Senate, with little public awareness of individual filibusters), you can figure out rules to make it happen for a while, until people figure out how to game it and you have to tweak it again. Those parenthetical aims, by the way, are mine; one of the problems of the Senate is that I don’t think there are fifty out of a hundred who can manage to get their parenthetical aims to overlap, but that’s an electoral problem, not a constitutional one.

No, the thing that interests me, at the moment, is the whole idea of the slow-down Senate. There’s no question in my mind that the Madisonian purpose of the Senate is to prevent the House from going nuts. The House is susceptible to sudden waves of public opinion, has (potentially) a higher turnover from one year to the next, and is liable to suddenly proclaim some crazy shit. The Senate’s job is to look at stuff and say yes, no or maybe; to have a longer institutional memory, and to finally go along with the stuff that looks likely to last. Does it do that job? Sometimes. Sometimes not so much. It’s politics.

In 1995 or so, maybe 1996, I remember feeling a sense of awe that the Madisonian system was working so well. The Republicans had taken back the House, the long shift from post-war liberalism to anti-government resentment was in one of its swells, we had a centrist President who had not shown a real spine for negotiating, and I was seriously afraid that Newt Gingrich and his Party would go nuts. And do some extent, they did go nuts, but very little of their Contract with America got actually legislated, and that was largely because the Senate slowed everything down to the point where the more obviously bad ideas were, well, obviously bad.

In 2010, or rather in 2009 and continuing, Democrats and the left are feeling frustrated with the Senate’s slowness. This is quite right. We should be frustrated by the slowness of the Senate, and we should do everything we can to speed up the pace. Probably including getting rid of the filibuster altogether, certainly altering the rules to increase the cost of filibustering—but the point isn’t that the Senate should be trying to speed up the pace, or that the Senate Democrats should be trying to speed up the pace, but that the country should be trying to speed up the pace. The Senate is constructed to slow it down, almost independent of the actions of the Senators, organized or individually.

This is the point I keep coming back to, and I don’t know if I can make it properly because (of course) I am somewhat ambivalent about it anyway. But I’m inclined to think that it is a Good Thing to have those structural slow-downs, and to have to overcome them with a combination of popular support and painstaking rolling of logs. It is a Bad Thing when it is slowing down good legislation, or legislation that at least improves government, but it is a Good Thing when it is slowing down bad legislation responding to momentary passions and prejudices. Weighing the costs and benefits is not easy. Certainly the filibuster, specifically, has been and likely will be used mostly to slow down good legislation (and has generally been only able to slow it down, not block it, particularly when against public opinion), and I can’t really defend it in its current form. But the Senate is loaded with weights to slow down legislation—the six-year term, for one thing, and the committee system, and the calendar, and the geographic distribution. And the original idea to have the Senators chosen by the state legislature was designed even more strongly to have sober grandfathers representing their states and their honored traditions (who may well have been the radicals of twenty years previously, but there is nobody more hostile to new change than Young Turks grown old and respectable).

I guess my point is that we are in an unusual moment in Party Politics—a huge, huge majority in the Senate, largely aligned ideologically rather than divided geographically, with a majority in the House, with the White House as well. It is a moment for great ambitions. It won’t last. It is the moment that a Party should have a glint in its eye. And it is the design of the Senate to take the glint out of the eye, to turn a moment that anything is possible into a month where something is practical. Which, as it is my Party, and it is my moment, is a Bad Thing. But it has been the other Party before, and will be again.

On the other hand, none of those lovely Madisonian procedural niceties is getting prenatal vitamins into the bloodstreams of pregnant mothers. The people who are out of work are still out of work, and the idea that perhaps someday the factor that is working against them will work in favor of the things they like, when they have been dropped out of society and its comforts, well, that idea won’t keep them warm at night. And, of course, when there are millions of refugees from low-lying countries that are under high-lying water, under air that is 500 or 600 ppm carbon, those refugees may or may not benefit from the Senate being slow to victimize them in the panic of nationalist fervor, because who knows? We may not even have a Senate at that point.

So, for all those people who are furious at the Senate, I think you are right, and I certainly don’t blame you for your anger. In fact, I encourage you to broadcast that anger high and wide; it’s the best possible thing. But when Left Blogovia (and others) calls it the World’s Most Dysfunctional Deliberative Body, what I think they are missing is that the Senate is functioning just fine—it’s doing just what is supposed to do. And I can’t say I’m happy about it, but I see the point of it. The parts are designed to work together, and Left Blogovia’s doing its job and the Senate is doing its job, and with any luck, we’ll eventually improve the level of health care (and reduce the level of expenditure on it), eventually, eventually, eventually.

Tolerabimus quod tolerare debemus,

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