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Monday, April 11, 2005

Don't Go Nuclear on the Nuclear Option 

Wow. Mickey Kaus actually makes some good points for once, joining Hendrik Hertzberg in rejecting the kind of knee-jerk, puerile contrarianism that gives rise to anti-filibuster rants like this one. Read Kaus's post if you have a chance.

Here's another point I'd like to make, however poorly: it's time for all good bloggers to quit pointing to the filibustering of civil rights legislation in the 1960s and claiming that this constitutes, by itself, a valid anti-filibuster point. Filibusters have been used for all sorts of purposes. During the same period as the fight over the Civil Rights Act, liberal Democrats used the filibuster in a near-succesful attempt to stop what they saw as a giveaway of publicly-financed technology to a private corporation. [There's surprisingly little info on the internet about Sen. Kefauver's fight against the "Communications Satellite Act of 1962" (a fight so bitter it gave him a heart attack). Here's what a quick Google scan turned up.]

Another major function of the filibuster that bloggers (other than the absolute must-read Mark Schmitt) seem happy to overlook is that in non-judicial-appointment contexts, it offers a parliamentary method for forcing a majority to accept floor consideration of non-germane amendments. One might well argue that this function actually makes the filibuster a means for reducing, not increasing, the Senate's built-in anti-democratic character.

Finally, the filibuster tends to be used most often under certain very specific conditions: there has to be a majority with an activist bent (the filibuster protects the status quo) with too few members to reliably achieve cloture. Those conditions are met right now. Liberals endorsing the "nuclear option" (especially outside the narrow judicial context) are basing their arguments on an expectation that a small-but-activist-liberal Democratic majority will be in place in the Senate at sometime in the future, contemporaneous with a Democratic House and Presidency. It's quite likely to happen...someday. But in every other context their preferred institutional change is anti-democratic and possibly anti-Democratic as well. More on this last point soon.

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