The Filibuster and Southern Realignment

By DHinMI

Look what Kagro X had done--to be a serious blogger, you apparently have to write about the filibuster.

Some of the best discussion on the filibuster has been between Mark Schmitt and others on whether protecting the filibuster is in the long-term interests of progressives.  The discussion has been great, and I don't have much to add,  but I want to add one point I think has been missing from the debate. 

Nathan Newman raised some good points about the historical pattern of southern conservatives using the filibuster to prevent expansion of federal powers.  He mentioned, of course, that whereas in the past those political conservatives were Democrats, today they're Republicans.  Regardless of party, however, they're still a threat to expansion (or even preservation) of federal powers, so, he argues, we should not cede them the right to impede progressive legislation.  Fair enough.

What I think we need to consider, however, are the implications of that shift of southern conservatives from the Democratic to the Republican party.  One of the reasons the filibuster was such a potent conservative weapon wasn't simply because it could block change, but because it was often employed by Democrats against Democratic initiatives.  Certainly through the 1960's, and arguably even up through the massive Southern realignment of 1994, the Congressional caucuses possessed little of the ideological cohesiveness of parliamentary parties.  But since the southern conservatives are almost completely gone from the Democratic caucus, and the Rockefeller Republicans are almost extinct, we have the most distinct "two party system" in our history.

Long-time Washingtonians like to drone on about how much nicer the town was in years past, but now it's become so "partisan."  Washington has become more partisan, and some of that is due to fewer friendships across the aisle, less trust between people who fly home every weekend rather than stick around and become close acquaintances.  But a factor few people discuss is that there are fewer ideological brethren who happen to be from opposing parties.  It's not, as some claim, that there's no longer a moderate middle in Congress.  The change is that there's almost no overlap between the parties, not even in the middle. Conservatives are Republicans, liberals are Democrats, and the degree to which you are closer to one or the other ideological pole practically dictates your partisan affiliation.  In the Senate, the most conservative Dems have more liberal voting records than the most liberal Republicans, and in the House the exceptions to that general rule are very rare.

So, for the first time in our history, complete party control of all branches of government provides an approximation, weak though it may be, of control of a parliamentary government.  If a party controls the White House and has narrow but highly disciplined majorities in both chambers of Congress, it can ram legislation through Congress with greater ease than ever before.  One may think that's as it should be, that a majoritarian system shouldn't have impediments to majority rule, especially if the minority can prevent passage of legislation that has broad popular support.  Maybe so.  But unlike in a parliamentary system, in the American system there are three separate majorities that matter--the majority in each of the chambers, and potentially "majority rule" through simultaneous control of both chambers.  Thus, the Republicans could lose their majority in one of the chambers but retain it in the other for years. 

Think about what might have happened if regionalism hadn't split the Democrats and there had been a filibuster in 1948.  A cohesive Democratic and somewhat liberal minority might have been able to filibuster the Taft-Hartley amendments to the National Labor Relations Act that eliminated secondary boycotts and created "right to work" states.  Nathan mentions how the Republicans and a few southern conservatives filibustered legislation in 1994 that would have prohibited using permanent replacements in labor disputes.  That's a good argument for getting rid of the filibuster in a time of cross-party ideological alliances.  But now that the most liberal northern Republicans are usually less liberal than the most conservative Southern Democrat, any major legislation like labor law reform is likely to come through a unified party caucus, possibly joined by some members of the opposing party.  And that change can go either way; it's not inconceivable that, with the addition of one or two seats in the Senate, the GOP would have enough votes to rewrite the NLRA to make it even worse than it currently is.  And without a filibuster to stop such a move, we would probably have to wait until we again controlled the White House and both chambers of Congress to undo the damage.  Because of the Southern realignment and the neater overlap of ideology and partisanship, Congress in 1994 was much more similar to Congress in 1948 than to either the current Congress or a Democratically controlled House and Senate in 2007. 

Thinking about how the filibuster was used in the past is important, especially in terms of "what could have been" had it not been for the filibuster. But it's also important to think about how without the filibuster, what becomes law today could remain law for a long, long time, a point raised by Mark Schmitt.  Mark's argument focuses on liberalism. What I hope I've added to the discussion is some recognition of the role of partisanship, and how today's more ideologically cohesive caucuses not only make bipartisanship less important in passing major legislation changes, it makes those changes almost impossible to reverse until the other party regains control of both chambers of Congress and the White House.

[Addendum]

Upon rereading this post, I noticed two things.  First, it was full of errors and clotted prose, which I hope I fixed up a bit (without changing the argument).  The other thing was my failure to make explicit an important point--with the cohesive caucuses, not only aren't ideological brethern likely to be separated by partisanship, you also have partisan unity between ability to control what legislation reaches the floor and inclination to block it by using the filibuster.  In short, the party that controls the calendar is unlikely to have many members so vehemently opposed to the legislation brought up for consideration that they would seek to filibuster its passage.  Thus, whereas in the past the filibuster was primarily used by a bi-partisan ideological minority, today an ideological minority in Congress is the same as a partisan minority.  That being the case, it makes the filibuster less of a threat to the unity of the majority party, as supporters of a filibuster are less likely than ever to come from within their ranks. 

Comments

[debra]

I think Mark Schmitt's point is exactly right. And yours supports it.

Many of the horrors that the Republicans have passed and want to pass are irrevocable.
They cannot be undone and so the filibuster is the only way we can stop them in the future. Undoing legislation will take control of all 3 branchs of government. Something that may not happen in the near future. Indeed the Republican's control of the 3 branches may be self perpetuating.

In this case past is not prologue.

And I think your point is supportive of Mark Schmitt's point that the filibuster will be a weapon of the partisan minority. It may be one of the few the minority may have left at its disposal.

[Petey]

"Thus, whereas in the past the filibuster was primarily used by a bi-partisan ideological minority, today an ideological minority in Congress is the same as a partisan minority.  That being the case, it makes the filibuster less of a threat to the unity of the majority party, as supporters of a filibuster are less likely than ever to come from within their ranks."

This is all true. But, while the filibuster is no longer a threat to the unity of the majority party, it's still an identical threat to the ability of the majority party to legislate.

In other words, I'm not sure I see the significance of this shift within the larger discussion over the value of maintaining the filibuster moving forward.

[Kagro X]

Mark's comments on the tendency of Republican legislative initiatives to be irreversible was a good one -- it's been one of my complaints for a long time. While the legislation can sometimes be undone, the damage usually can't. Democrats, generally, are a party of pilot programs, which is more than a little bit ironic given the supposed Republican penchant for federalism, laboratories of democracy, and whatnot.

Your other point, I think, goes hand-in-hand with one that I've made in passing to pro-nuclear option Republicans from time to time. The recent historical efforts to end or curtail the filibuster have always been bipartisan affairs. That goes both to your point that the partisan divide is now sharper than ever, and possibly to the point that "what might have been" absent the filibuster may have nothing to do with what will be in a future without one.

[NG]

I believe many posters here are missing the important fact that with an electorate almost equally divided 50-50, we really do not know how strong the wall of separation between these two ideological camps is!

Lets me give two hypotheticals:

1. The country has a 75% to 25% split in ideological beliefs. In this case, doing away with the filibuster means little because extreme legislation coming out of such a split would be likely wholeheartedly supported by the vast majority!

2. The country is split 50% to 50% in ideological beliefs. In this case, doing away with the filibuster means plenty because now any extreme legislation coming out of such a split would be only supported by at most 50% and likely some of these would not be that extreme. The next election may well show a new alignment.

The key discussion with the close electorate split of today should once again be the size and variability of the swing voters. In this 50-50 split, is the wall between ideologies absolute, strong, and high, or is there a sizeable group in the "barely in control majority camp" that might turn on this "majority" because of their high handed, extreme legislative actions? This is a critical question, and one that all but fanatics would consider carefully in a closely divided nation before going down any nuclear option.

[Nathan Newman]

My response is over at my blog here.

[Petey]

"Your other point, I think, goes hand-in-hand with one that I've made in passing to pro-nuclear option Republicans from time to time. The recent historical efforts to end or curtail the filibuster have always been bipartisan affairs."

It's worth noting how just how tied the nuclear option is to efforts to please the GOP base. Specifically, we wouldn't be discussing this issue if Bill Frist weren't planning on running the '08 Presidential primaries.

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And part of the beauty of the possibility of a compromise to eliminate the filibuster on all legislation is that it would be a bipartisan affair, both because it would involve progressive Dems and loony Goopers, and because it would require the 67 votes necessary to change the rules in the traditional manner.

[Elwood Castaneda]

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