Non-nuclear. Thanks to this fine post at Lawyers, Guns and Money, I've finally gotten around to reviewing the question of the filibuster—and, specifically, the progressive argument against it—in a little more depth. (Julie Saltman's "I kinda like the filibuster" post, to which LGM links, has a roundup of the anti-filibuster action in and out of Blogtopia. Rik Hertzberg's discussion in the New Yorker, which for some reason I hadn't seen before though it's a month old, is the gold standard here.)

I've been more or less unreflectively pro-filibuster, on the generally sensible (and time-saving) principle that anything the Republican leadership wants to do is Bad and must be Opposed. But the argument that the filibuster represents, on the historical scale, a net loss for progressivism (and likely to remain so, more important) is a pretty persuasive one. [It's an argument not made, though its outlines can be seen there, by a callow and stupid FactCheck.org critique of a pro-filibuster PDA ad that I criticized pretty severely at the beginning of this month. Just to insist that my current rethinking doesn't imply that I'm stepping back in any way from that post.] Scott at LGM rather elegantly marries the argument from expediency (progressives generally need to make it easier for majorities to enact their will) with the argument from Constitutional theory:

Julie notes that "I'd argue that the whole point of the system Madison envisioned and realized in the Constitution is to seriously slow things down." This is certainly correct. My response would simply be that Madison was, in this case, wrong. Obviously, any democratic political system makes tradeoffs between efficiency and protecting minority rights. But I think the Madisonian system goes too far in the latter direction. It's simply too easy for powerful minorities to oppose social change; the last thing this system needs is more veto points. ...

It seems to me that the American system is plagued far more by the inability of the federal government to react and experiment with policy solutions to social problems than by the risk of passing unwise legislation. ... The way I would look at it is this: comparable liberal democratic systems with fewer veto points, such as the UK and Canada, have much better policy outcomes (health care being the most striking example) without any noticeable sacrifice of minority rights. For progressives, I think, the evidence makes it clear that the costs of the filibuster will always outweigh the benefits in the long run.

So should the Democrats be fighting the nuclear option in the first place? The answer is a pretty obvious yes: particularly now that Bill Frist, the genius, has decided to go and Schiavo the debate. (Can somebody splain me how anyone as politically inept as Frist has managed to weasel his way into a position of leadership? That's some sense of timing there. Let me offer an early endorsement for Bill Frist for the Republican presidential nomination in 2008: not because I think he won't win—any Republican nominee will—but because for someone with gifts like his they'll have to escalate the voting fraud to such an obvious level that it might actually succeed in sparking a revolt.) Whether or not the filibuster ought to be jettisoned, in the long term, in the immediate term it makes a significant play in the emerging strategy, helpfully handed us by Tom DeLay, of positioning the Democrats to the electorate at large as the party of responsible government and constitutional preservation.

The filibuster fight is important—too important, I think, not to lose. After all, what does a win buy you? The underlying battle, over the composition of the federal judiciary, is already lost. There's even a case to be made that victory against the nuclear option would be Pyrrhic: win, and the Right gets to keep the anti-judicial flamethrower in its arsenal, against only a few measly news cycles of "Democratic success" on the plus side. (And the defeat of a handful of the most extreme of the extreme judicial rightists, but on balance what does that really matter?) Lose, though, and not only have the Democrats gone down fighting for principle—something they've managed to do only too rarely these last few lifetimes—but Harry Reid's promise to bring the business of the Senate to a virtual halt, in the post-nuclear era, allows him to extend the narrative for far longer than victory does, and turns the Senate into a media-friendly platform for displaying the Dem commitment to anti-extremist opposition. And the worst-of-the-worst judicial nominees in question will have to endure much wider and harsher scrutiny as beneficiaries of the nuclear option than they have, or ever will, as filibuster victims.

So, pace MoveOn et al., I think I'm going to sit this activism opportunity out. Let's see if Harry Reid can lose one for the home team.

posted by michael  2:36:44 PM  
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