The mushroom cloud

Despite the claims of David Brooks -- who has, fortunately, returned to the land of specious arguments, strawmen, and political inconsistency -- there is generally a pretty lively debate among liberals over any number of issues, particularly on the role of government and how it should work.

Lately, one of the more interesting discussions has been around Republican clamor for Bill Frist to go ahead with his threat and take the "nuclear option," eliminating the ability for Senators to filibuster a judicial nominee. I, for one, have been arguing loudly about the need for Democrats to stand united while convincing a few moderate Republicans that this would be an egregious slap in the face to Congressional tradition. It would create a Senate in which a simple majority would have total control of the legislative agenda, no matter how large the minority. A very un-American ideal, indeed.

Nevertheless, reading the on-going (I hope) debate that Matt Yglesias is moderating between Mark Schmitt and Nathan Newman, my thinking is becoming more nuanced (not an easy feat for someone who likes his ideas bludgeoned into the brain).

In essence, those opposed to the filibuster note that it has never been a friend to progressives or active government. It was a tool of Dixiecrats to stop or delay civil rights in the 1940s, 50s, and 60s, and of Republicans in the 90s to put an end to Clinton's health care reform.

Writes Newman,

Eliminating the filibuster -- and ending it for judicial nominations will lead quickly to its end in other areas -- would of course open things up to worse rightwing laws that liberals could have blocked.

But the reality is that conservatives have thrived in a political environment where they can block any positive use of government. By frustrating progressive policy, it feeds the argument that ineffective government does not deserve the taxes working families paid. That was the explicit argument of conservatives who blocked health care reform in 1994; they knew that national health care would be so popular that it would lock in support for positive government action for decades more.

The reverse doesn't work for liberals. Blocking conservative action through filibusters has short-term gains, but it feeds the long-term cynicism of voters that government cannot accomplish anything. Which just feeds the meta-argument of conservatives of the dysfunctionality of government and the superiority of leaving decisions to the marketplace.

On the other hand -- where my head's been at -- is that the short term damage that could be caused by some of Bush's nominees for the Court of Appeals, not to mention the Supreme Court, is not worth the potential long-term gain of killing something that's long been used to foil progressive change. Who knows how long we may be wandering in the desert.

Argues the Decembrist,

I'll just refer back to something else I wrote last summer, an article on congressional reform that is mostly a review of a recent book by Julian Zelizer. (And which appeared in the American Prospect online, where Sam works, so this whole thing is circular) What I noted from the book was that procedural reform in the 1940s, 50s and 60s was built on the assumption that if the rules were different the results would change. Reducing the number of votes needed to end a filibuster from 66 to 60, breaking the "committee system" by which senile Southerners held total power over what was considered, and making votes public were expected to lead not only to passage of civil rights legislation, but to a much more activist, presidential government. Reformers assumed that they would help a strong president, who was likely to be liberal, set the congressional agenda.

I noted the irony that everything the reformers had dreamed of had now come true. The president can now set the congressional agenda. And yet, the result in practice is exactly the same: antigovernment Southern conservatives control the game, just as solidly under the new rules as under the old. The point is not that the reforms were mistaken or backfired. It's just the rule of thumb that any procedural reform is likely to have very different results depending on the political and cultural context. As political culture changes, the results become unpredictable. In this case, the big change that overwhelms everything was, as Kevin Drum noted earlier this week, the shift of Southern conservatives from a faction within the Democratic party to the base of the Republican Party.

This uncertainty makes it difficult for me to fully buy Newman's result-oriented view of the filibuster. I hope this isn't too high-minded or Rawlsian, but I think that given the uncertainty, one is best off accepting a neutral principle that you could live with if you didn't know whether your party was in the minority or majority, or whether your immediate cause would benefit or not from the rule change. Given the role that Circuit and Supreme Court judges play in setting the constitutional parameters for both government and individual rights for generations, the principle that a very committed 40% can block an appointment seems like a very reasonable one, one I would accept from behind the veil of ignorance.

Schmitt also notes that the Republicans want the debate to be about the nuclear option and Democrats' obstruction of Dear Leader's perogatives as Commander-in-Chief, not a true debate over the merits of Bush's nominees. A filibuster would force the focus back on the nominee's credo and credentials.

Newman responds by arguing that the unintended consequences of which Schmitt warns may have their own, more beneficial consequences. That is that the supposed rightward turn of the country is far less pronounced than many in the GOP and the media assume. Pointing to the Schiavo case, when the GOP are able to enact their agenda without opposition, they are led by their own worst demons and end up looking like Wile E. Coyote running off a cliff. Suddenly, the support they may have had from moderates, the middle class, and moms instantly disappears. So, to paraphrase a certain American intellecutal, "bring it on."

The Terri Schiavo vote is a taste of what would happen if the GOP had to vote its whole agenda, and couldn't depend on Democrats to take the heat for filibustering the cultural extremism. With the Dems stepping back, no one questioned that with this vote, the GOP had full control of the agenda, yet the bill they crafted was interventionist enough to outrage their moderate soccer mom base but weak enough to leave the religious base with the feeling that they were being used politically when Schiavo died. (The Martinez staff memo didn't help in that regard.)

Here's my bottom line view. I don't think conservatives have majority support for their policies and in a fair and democratic fight, progressives would win most policy fights and win elections. The conservative coalition is cobbled together through rhetorical manipulation that depends on undemocratic structures such as the filibuster and the courts to obscure political accountability. [his emphasis]

Color me conflicted. I like the idea of Newman's brinksmanship; such tactics have been effective for Republicans for the past decade, maybe it's time for Democrats to give it a shot. On the other hand, there are plenty of examples of minority groups with an agenda using the levers of democracy to gain control -- even for a fleeting moment -- and then use that control to derail democracy. Given that there is a sizable element in the Republican party (and certainly amongst many in their most vocal base) who are a-itchin' for that ol' time religion to rule the United Theocracy of America, I worry about allowing Bush to pack the courts and for giving Republicans unfettered ability to pursue the worst parts of their agenda in the hope that our values will sway more voters in the long term and we'll regain power in a filibuster-free Washington. It's a helluva gamble.