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Monday, May 23, 2005

Son-in-Law of Filibuster

A few more separate observations on the filibuster debate.  One issue that occurs to me, and that again is particularly salient given Ethan's area of expertise, is what the current Senate debate says about the importance of deliberation.  There are two perspectives on this point: internal and external.  Externally, although the Senate debate has focused attention on the issues swirling around this debate, it is obviously impossible to convey the volume of discussion in the Senate -- even if the discussion were all of equally high quality, which it is not -- to the public.  I have said I favor requiring that filibusters be "real" -- that is, that they actually require both sides to expend the political energy involved in mounting indefinite debate -- rather than nominal.  But why?  If the discussion ultimately is less important than the employment of raw power or the deployment of procedural tactics, why should it matter?  I think it should, partly because "real" filibusters involve the expenditure of more energy and political capital and partly because there is some deliberative wheat amidst all the chaff.  But it is worth questioning myself on this point.  The other perspective is internal: it is possible that the focused debate in the Senate has permitted a genuine exchange of views among the members themselves.  I can't say for sure.  It seems possible to me.  And even if neither side is listening to the other, at least each side is forced to marshal its own arguments.  But it also seems to me that the real deliberation here is going on in the compromise discussions among the moderates.  Although I think Senator Frist was right to reject his request, because the issue is important to the public, there is actually something to be said for Senator Reid's earlier suggestion that the body move into closed conference to discuss the filibuster issue; it likely would have led to more sincere and productive deliberation.

A separate issue is one the newspapers have written about some: the changing character of the Senate, which in some ways has come to resemble more closely the House of Representatives.  (See here, for instance, and here.)  I think this is both true and cause for regret, although I think the extent to which it is true can easily be overstated: remember that just about all of the Senate's business continues to proceed apace on the basis of unanimous consent, so the character of the Senate has not changed completely.  But it has changed at the margins, I think.  Part of this is due, I think, to the hardening of ideological positions on both sides.  Part of it is due to the influx of former House members (Senator Santorum is a prime example, but so arguably is Senator Schumer) who bring the spirit of the House with them and, perhaps, take a more short-term than long-term view of particular debates. 

A third aspect of this change, and I don't know why it is so, is that the senators are simply less knowledgeable about, and less interested in, the Senate as an institution.  They are less protective of Senate prerogatives -- a tendency that cannot simply be blamed on single-party government, because even in a politically unified institution there are still reasons for one institution to be jealous of another.  Part of this, I think, can be attributed to the changing mechanics of politics, in which Senate seats are less safe, particularly against primary challenges, and Senators operate in the national as well as the local media.  The role of the national media is, I think, one reason (though not the only reason -- let me not discount simple agreement) why GOP Senators tend to be less defensive of their turf against the Executive Branch.  Perhaps part of it has to do with the presidential ambitions of some sitting Senators, or with the sense that presidential politics are too close right now to privilege the institution ahead of the issues, or with the sense that potential donors and interest groups are more likely today to punish members who compromise for institutional reasons.  I truly don't know the answer.  But I do think the phenomenon is real, unfortunate, and starkly captured in Senator George Allen's comment, in the NYT piece linked to above, distancing himself dismissively from those who "worship process."  Count me as one who unrepentantly worships process.

A third note, related to my first one: Senator Frist has apparently scheduled an all-night debate on the issue tonight, prior to tomorrow's development -- rules change, compromise, chaos, or all of the above.  To the extent this tracks my interest in reviving "real" filibusters, I approve.  But don't take it at face value quite so easily.  The story I've linked to describes tonight's session as having been called to "dramatize" the debate, and indeed tonight's events may be no more than a dumb show, willingly participated in by both sides.  Will the majority require the minority to hold the floor all night to forestall an immediate vote?  If not -- if they cannot resist the urge to take the floor and speak themselves -- it will be hard to call it a real filibuster.  Similarly, if the minority is willing to yield the floor, their complicity in a sham filibuster may be equally apparent.  We'll see; it's possible that tonight will represent a real filibuster, but I wouldn't bet the ranch on it.

This raises an interesting point about last week's debate: it was not itself a filibuster.  Normally, if debate on a pending issue ends, the immediate next step is supposed to be a vote.  In fact, if you look at last week's record of proceedings, there were a number of occasions on which debate did end.  Rather than call the vote, a number of quorum calls were held -- a traditional means by which the chamber postpones a vote.  This means both that the Republicans were not prevented from calling a vote last week, and that the Democracts were not intent on forestalling a vote last week.  In other words, both parties have engaged by mutual consensus in a dumb-show of virtual filibustering so far.  Is a rule change necessary right now?  We don't know, because neither side has really forced the issue in the five years, at least, in which this debate over judicial nominations has taken place.  I think this is further evidence that both sides have screamed at each other over the filibuster issue without actually being willing to expend the political capital involved in actually holding filibusters. 

That does not, as I have argued, alter the underlying constitutional and procedural questions.  But it does cast the proceedings of the last several years in a more cynical but perhaps accurate light: as a sound-and-light show, tied closely to fund-raising and the courtship of interest groups, rather than a meaningful commitment by senators of either side to the substantive issues involved.             

Posted by Paul Horwitz on May 23, 2005 at 03:47 PM in Law and Politics | Permalink


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