The Filibuster Revisited, part 2

Another round with Nice Guy Eddie over the filibuster. Eddie got things rolling here, I replied, then he came back to it in his "comments" section. Here's my next installment:

Many years ago, I used to argue for doing away with the Senate entirely. I haven't given that matter much thought in more recent years but I'd probably still lean in that direction. It seems a lot bigger subject than the one on the table though and, honestly, not really relevant to the more narrow question of the filibuster. Feels like a bit of a dodge, Eddie. But it's out there, so I'll offer up a few words on the matter of the Senate's existence. Not to argue for its abolition--not just now, anyway--but to make the case for why it's kept around.

The Senate was created in imitation of the House of Lords, to allow societies' overdogs to act as a check on the more democratic House. Senators were appointed by the state legislatures. That scheme failed miserably, democracy eventually moved forward and we started directly electing them. An element of the original rationale for the Senate does, however, remain: it was a place where states would have equal representation, so the bigger, more populous ones wouldn't be able to dictate everything that happens in government. It isn't, in itself, democratic--it's a compromise that allows democracy to go forward and it's one you can understand because you've already made the argument about the alleged danger of allowing a state of affairs wherein 6-10% of the population could theoretically elect sufficient senators to "enact whatever they want to." Checks and balances.

One of the first and most basic rules of pragmatism is "never let the perfect become the enemy of the good." In refusing to accept the argument that eliminating the filibuster would make things "better" solely on the grounds that it leaves the non-democratic Senate in place, you're violating that rule. Things like getting rid of the Senate and adopting these micro-districts about which you write may be great ideas but they involve massive, radical, controversial change in the basic structure of government. I'm a big one for radical change[1] but if we're going to be pragmatists, those sorts of changes would require multiple constitutional amendments and major, comprehensive changes in the laws of every state in the U.S., while getting rid of the filibuster is a simple matter of changing an internal Senate rule that's arguably unconstitutional anyway. It's true that, in the Senate, "when you’re talking 5-10% either way, you’re about half an order of magnitude LESS than the 50% that a liberal democracy calls for to pass legislation" but what you seemed to forget for a moment there is a) that the Senate can't pass legislation on its own--it requires the much more democratic House. And b) that with the filibuster in place, that democratic body can't pass anything. And I'll go ahead and throw in c) the fact that the math has never worked out that way. 6-10% of the population may theoretically be able to combine and "enact whatever they want" but in practice, they never have. In practice, the senators of 48.7% of the population (in the first 2 years of Obama) were able to block everything the senators representing 74.9% of the population tried to do. No pragmatism-based or democracy-based way to defend that.

"[S]aying, 'To defend the filibuster is to defend its abuse,' is no more profound that me saying 'to do away with the filibuster is to defend the abuse of those who can now act unopposed.'"

...except they don't get to act "unopposed" if the filibuster is removed. They still have to deal with the more democratic House and with the president. This is the democratic process; the filibuster is the negation of that process. If you have any respect for that process, the two are not equal. They're not even close to it. I have no doubt at all that you understand this (and that you do respect the process), but that understanding left you when you wrote things like "if the Senate IS undemocratic ON THE WHOLE, BY DESIGN, then one more or one less undemocratic practice within that structure is, IMHO, immaterial." The fact that the existence of the practice completely neutralizes the democratic process[2] pretty much removes any pragmatic grounds for dismissing it as "immaterial." You say the filibuster should be kept around to "protect the rights of the minority" but it neither protects a valid right of the minority nor has it ever done so. It's just a backdoor way for the losers of an election to continue to rule, and in a democracy, that's not a "right."

Does a defense of the filibuster equal, as I asserted earlier, a defense of its abuse? It absolutely does unless one's idea for reform can prevent the sort of abuse we've seen and here, I'm a bit disappointed you didn't go into your idea of filibuster reform. It's true that I probably would be unmoved by it, but I'm certainly willing to listen.

Perhaps we'll continue.

--classicliberal2

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[1] I suspect your proposed micro-districts would prove quite unworkable but I've been an advocate of proportional representation for years. There are several ways to do it. Most are preferable to the way things are currently done.

[2] And when, as we've seen in recent years, literally everything the senators representing 74.9% of the population try to do is blocked by the senators of 48.7% of the population, the points about the Senate end of the process being theoretically undemocratic don't really hold a lot of water. Obviously, that relates to the recent actual situation in the Senate and doesn't negate the criticisms arising from different theoretical situations but it's another point a pragmatist probably shouldn't overlook.

The Kidnapper-In-Chief

In what's getting to be a very old story, the Obama, today, offered up yet another huge example of why he deserves to be absolutely destroyed at the polls in 2012.

During the previous administration, the "president" claimed the power to arbitrarily kidnap anyone--even U.S. citizens on U.S. soil--and throw them in a deep, dark hole forever. No courts, no lawyers, no appeal, no due process of any kind. Just label them a "terrorist" and they disappear. That such "powers" were, in reality, utterly illegal, totally unconstitutional, and, in fact, anti-constitutional didn't deter him for a moment. That "president" was a fascist son-of-a-bitch, though, and when it came to expectations, it was probably unreasonable to think one would get anything from a pig but a grunt.

One expected a bit more, however, from a Democratic president who came into office as part of a huge Democratic electoral tsunami that drew its power from public repudiation of everything for which that prior administration stood. But, as it turned out, the Obama started letting people down before he'd even taken the oath, and that's been the story of his administration ever since.

As my regulars will have no doubt noted, the legacy of the Bush administration is one of the matters that has persistently vexed ye humble editor. Bush waged steady, relentless war on the constitution, the rule of law, and open, accountable, democratic government, and, in the process, sewed the seeds of a monstrous dictatorship. Those seeds need to be rooted out, without mercy, because if they're allowed to pass into precedent, they will yield a monstrous crop in the future. The Obama stood against these abuses before the 2008 election, but since his ascension to the presidency, he has, time and time again, gone out to the field to tend, defend, and even nurture the poisonous fruits of that prior "president's" labors.

Today, he was at it again. The Senate has attached, to the National Defense Authorization Act, a totally unrelated rider that codifies, into U.S. law, the Bush administration's asserted kidnapping powers.[*] The Obama initially threatened to veto the larger bill if this was included, but after some Senate tinkering with the wording of the rider that did absolutely nothing to change its substance, the White House announced, today, that the Obama gang would no longer advise the president to do so. The Senate passed it, then House immediately followed suit, and there's every indication the Obama will soon sign it.

Through his actions, the Obama has forcefully marked himself as unworthy of holding the office of President of the United States.

But then, what else is new?

--classicliberal2

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[*] As soon as this "power" is used, it would face court challenge, and, in a functioning federal judiciary, it couldn't withstand constitutional challenge. Unfortunately, America is burdened with a federal court system (and a U.S. Supreme Court, in particular) swamped with right-wing ideologues. Some are mavericks on such issues, and may very well strike it down, but they're certainly no reliable check. And, in any event, the court process takes time, and the victims of the policy could be made miserable for a lot of years before the courts get around to ruling one way or the other.

The Filibuster Revisited, part 1

Early last year, I went a few rounds with Nice Guy Eddie from "In My Humble Opinion" on the subject of the Senate filibuster, him fer it and me agin' it. It started here, then continued here and here, with remarks from both of us spread through the "comments" section of both blogs in the great, totally disorganized manner that would come to mark all of my more involved exchanges with Eddie.

Eddie thought on the subject for a long time. Nearly two years! Yesterday, a ridiculous item on Fox News, reported via Media Matters, inspired him to return to the subject. I've decided to post my reply here, as well as in his comments section. I fear it's rather cursory but I don't think for a moment it will be the last word in the discussion, so I've dubbed it "The Filibuster Revisited, part 1":

(A note: In order to have any idea what's going on, I recommend reading our entire exchange.)

In my second piece on this subject from last year, I ran the same numbers you did but my results were that, "at present population dispersal, just over 5.6% of the U.S. population, residing in the smallest states (which contain 11% of the total U.S. population), can theoretically elect a sufficient number of Senators (41) to filibuster anything everyone else wants to do." You came up with 2.3%. It's been so long I don't remember exactly how I did my own calculation but it doesn't really matter--either result supports my larger point.

I also ran the then-current numbers about actual Senate representation:

"...at present, Democratic Senators represent 74.9% of the population, while Republican Senators represent 48.7% of the population (there being overlap between states that have mixed Senate delegations). The minority is still running everything."

I pretty much addressed everything you wrote here back then. The notion that we will get bad results without a filibuster is a) absolutely true, and b) of absolutely no relevance. One either believes in liberal democracy or one doesn't. If you do, you have to take the good with the bad.

Defending the filibuster necessarily entails defending the abuse of it we've seen since Republicans lost control of congress in 2006 and particularly since 2008. That abuse has literally changed the constitutional order and is arguably unconstitutional. More to the point though, it completely nullifies our elections, rendering them meaningless exercises. This, too, is something one must defend in order to defend the filibuster. In evaluating its potential merits, one has to weigh this--a complete frustration of the democratic process, every day of every week of every year, forever--against the benefit of keeping it around, and in my view (and I think history clearly supports me in this), any alleged benefit is mostly illusory. No counter at all.

I don't see any argument in its favor.

--classicliberal2