POLITICS APRIL 25, 2005
Things look relatively good for the Democrats right now. Social Security privatization is practically dead, Tom DeLay is actually on the defensive, and President Bush's approval rating is below 50 percent in many polls. But then there is Phil. Phil is the cartoon star of a new political advertising campaign to preserve the filibuster--the parliamentary maneuver that allows members of the U.S. Senate to delay votes indefinitely and that has, for the last few months, enabled Democrats to prevent the full Senate from voting on a handful of conservative Bush judicial nominees. Since Republicans can't muster the 60 votes necessary to overcome this particular filibuster, they now want to use their authority over Senate procedures to abolish the maneuver itself, at least for judicial nominees. Exercising this "nuclear option," as it is known, would theoretically require the support of just a simple majority of senators, which Republican leaders say they are on the verge of solidifying.
Phil (as in "Phil A. Buster") is out to stop them. In the video, Phil explains that he's part of the delicate system of checks and balances that the Founding Fathers built into American democracy. "It's the jobs of checks and balances to make sure that no one gets too much influence and everyone's voice is heard," Phil says. "But there are a few politicians that want to get rid of checks and balances by squashing little old me." With that, a giant animated robot bursts out of the Capitol rotunda and chases Phil down the street, shouting, "No checks ... no balances ... one-party rule!" As the video ends, Phil urges viewers to "contact your senator" so that "everyone's voice is heard."
With its upbeat jingle and affable main character, the Phil commercial appears to be modeled on the old "Schoolhouse Rock" videos from which generations of children learned basic civics lessons. But "Schoolhouse Rock" usually got its history right. Phil, whose arguments come straight from Democratic Party talking points, doesn't. While the Founding Fathers indeed built checks and balances into the Constitution, the filibuster wasn't among them. It's simply a rule that the U.S. Senate set for itself in the early 1800s.
And, while the filibuster has been around for nearly as long as the Constitution itself, for most of its history the parliamentary tactic was reserved for the most controversial measures, in part because it required senators to actually stand and speak--often straight through the night and into the next day--a spectacle memorialized by Jimmy Stewart in Mr. Smith Goes to Washington. Filibusters no longer require such efforts, thanks to Senate custom, which is a big reason why they have become a matter of routine congressional business. There were fewer than 20 filibusters in the entire nineteenth century. But, since the 1970s, there have been hundreds, plus many more "silent" filibusters in the form of threats that simply prevented legislation from coming to the floor. As a practical matter, the Senate now passes most major laws only when 60 of its members agree.
Although, in recent years, Democrats have deployed the filibuster to block the Republican agenda, historically conservatives (like Strom Thurmond) were the ones most likely to use the filibuster over issues like civil rights legislation, while liberals (like Harry Truman) were the ones most likely to protest the obstruction to majority rule. Of course, the filibuster isn't so much hostile to any one ideology as it is to whichever party happens to propose the most radical changes in public policy, which is why it worked against Democrats before the Bush era and has worked against Republicans in the years since. But, while the whole point of the U.S. government is to thwart "tyranny of the majority," the filibuster has arguably gummed up the works too much, making shifts in public policy so rare that voters have grown increasingly angry at the apparent unresponsiveness of government--an emotion Republicans have proved particularly adept at exploiting lately. The majority party shouldn't get to be tyrants, but they should get to be legislators. That is why the filibuster needs to be severely curbed or even junked altogether, and not just for judicial nominations.
This isn't to say Democrats should simply forfeit the fight over conservative judges or any other matter. But, in the long run, it is a mistake to make such battles about legislative process rather than public values. Excessive appeals to parliamentary fairness merely reinforce the public's sense that Democrats care more about legalisms than the difference between right and wrong. This perception is particularly important given the Democrats' image of weakness on national security. Americans care about fair play and they don't want one-party rule. But they also seem to crave strength and moral clarity in the battle against terrorism.
Fighting Bush's judicial nominees on the merits of their views will inevitably draw Democrats into at least a few cultural debates they probably don't want to have right now. But, in a sense, that's precisely the point. The filibuster has become a crutch for Democrats, a way to defend their programs and values without having to actually win over voters. This is the same essential mistake Democrats have made over and over again since the early '70s in relying upon courts to secure rights (like unfettered access to abortion) and promote reforms (like affirmative action) for which they hadn't yet built solid popular support. These court decisions eventually provoked political backlashes that have hobbled Democrats since and, in cases like gay marriage, probably set back the liberal cause by many years.
If Democrats hadn't been so successful in pushing the courts so far ahead of public opinion, it's possible they might have worked harder at actually convincing voters that they were right on these issues, bringing the political consensus closer to them rather than pushing it away.
Democrats are hardly the first American politicians to seek protection in political instruments designed to thwart the will of the majority.
Indeed, it was a famous nineteenth-century senator from South Carolina, John C. Calhoun, who elevated the practice to a form of political philosophy. Calhoun argued that democracy would work best if the minority interests had a permanent veto over policy, a prerogative not unlike what the filibuster has become. But Calhoun championed such a system because, in the United States he knew, the South would never have as many congressional seats as the North. In other words, his side had become a permanent minority, a fate the Democrats risk if they keep yoking their political hopes to the filibuster.
Jonathan Cohn is a senior editor at The New Republic.