JONATHAN CHAIT JANUARY 6, 2010
Ross Douthat defends the filibuster:
Passing the 2001 tax cuts through reconciliation was a foolish way to do legislation — for Republican tax-cutters. They could have passed a smaller permanent tax cut that earned supermajority support, but instead they went for a bigger temporary tax cut — on the assumption that it would be so popular, and produce so much economic growth, that it would be easily extended once the deadline rolled around. They were wrong, and now their tax cut will be undone automatically, without Democrats having to actually vote a tax hike through.
By contrast, because the current Democratic leadership was wise enough not to use the reconciliation process for something it wasn’t designed to handle, the Democrats are close to winning a more durable and difficult-to-repeal victory in the health care battle.... Folly has been punished; sagacity may be rewarded. Now explain to me again why this shows that the legislative system is hopelessly broken?
First of all, I don't think this is true at all. Yes, more than 60 Democrats voted for the final tax cut bill, but much of that support came only after it was a fait accompli, and many Democrats decided to appear moderate and bipartisan. If Bush actually had to secure 60 votes for a tax cut, he would have had to radically alter its structure. Second, as Ezra Klein notes, the health care bill is the product of historical circumstances that don't come along very often. To say that major legislation can pass when the president controls the House and 60 votes in the Senate is to say that major legislation can hardly ever pass.
Third, I'd add that Bush's legislative successes involved large increases in the deficit. It's somewhat easier to pass huge bills when you make no effort to pay for them (at least if you're a modern Republican.) But that's not a good model for responsible governance. Taking on entrenched interests in a system with multiple veto points is hard enough. It's near impossible when you add a supermajority requirement, on top of the minority party's strong incentive to foil the president's agenda.
I have a very difficult time believing that Ezra Klein, or any other anti-filibuster liberal, would really rather live in a world where the Bush tax cuts had been larger, permanent, and easily passed on a party line vote. The filibuster has constrained recent Democratic efforts on the stimulus and health care, but those efforts would have been much more radically constrained if the Obama administration had inherited the tax code as rewritten by Dick Cheney and Trent Lott, circa 2001. Without the filibuster, 51 Republican senators a decade ago would have been able to tie the hands of 60 Democratic Senators in 2010. With it, the country was spared — and continues to be spared, at least to some extent — the tyranny of temporary and highly ideological majorities.
The descriptions Douthat uses -- "tie the hands," "Tyranny of temporary and highly ideological majorities" -- are a strange way to describe a world in which a simple majority vote can change policy. If legislation is easier to pass, it's also easier to cancel. I'd be happy to live in a world where 51 votes can pass a permanent tax cut, as long as 51 votes can end that tax cut. Right now we have a division whereby some legislation can pass with a majority vote and other legislation requires a supermajority, and the division makes little sense.
As many people have pointed out, a routine supermajority Senate requirement is a new thing in American political life, and it came about mainly by accident. Conservatives are discovering its virtues now. But isn't it strange that nobody actually called for the creation of this system before it existed?