As to the consensus argument: he is correct that the filibuster creates an institution that can only function if there is a consensus. This is not tautologically equivalent to an institution that will foster consensus. It could, in fact, be the same, but that needs demonstrating. And let's consider the 111th Congress for a moment. Republicans had, by the skin of their teeth, the power to Block Anything (except for the brief post-Specter pre-Brown months). Democrats, recognizing this, pursued their goals, health-care reform, environmental regulation, financial regulation, fiscal stimulus, etc., in very Republican ways. Cap-and-trade had been endorsed by most Republicans into 2009. A regulations-individual mandate-subsidies approach to health insurance was the Republican position in 2009. Only one-third of the stimulus was direct federal spending. Financial regulation was just barely strong enough that anyone on the left supported it. Very consensus ideas. And the Republicans, well, voted against all of these things. En banc. So the Democrats proposed Republican ideas, and the Republicans rejected them, because the alternative was to let Obama win, and they had the power to make Obama lose.
Tom Harkin has it right: with the filibuster, under ordinary circumstances, neither party has actual power. Power to govern can reside only in the two parties together. But accountability and responsibility lie entirely on the majority. So as Senator Harkin said, the minority can obstruct popular legislation, and blame the majority for not having gotten it done. The minority can obstruct legislation to help the economy, and blame the majority for poor economic management. The minority can fly ever further into unreasonableness, and then blame the majority for not giving in to their absurd demands and therefore getting nothing done. The minority has a considerable incentive to destroy consensus: it has the power to do so, and handing the majority a bipartisan victory looks good for that majority.
There is another thing, too. There will always be things about which there is consensus. Currently there is a bipartisan consensus in favor of having the majority of world military spending be done by this nation. So it gets done. But these things will always become not the field of battle. The Overton window will automatically shift to encompass only those things about which there is disagreement; there is no point fighting over things that are 99-0 (although the minority has, under the current system, an incentive to obstruct, i.e. burn time, on those things). So there will always be considerable consensus, but political fights by definition will always be about things that are not matters of consensus. Whether a government can function without doing anything outside of the overlapping consensus is a factual matter for debate; I think the answer is clearly no.
So what do we get when we have an institution that requires consensus but that does not create consensus, and indeed a system which in general tends to remove consensus? We get a body that does not function, that's what.
Now, as to his other argument. The idea is that the Affordable Care Act was Bad, because it was an entirely Democratic bill, while the Civil Rights Act was Good, because it was Bipartisan. First, the idea that the Civil Rights Act was bipartisan is in large part a myth. A myth, I say? Didn't 152 Democrats and 136 Republicans in the House and 46 Democrats and 27 Republicans in the Senate vote for it? Well, yes, but partisanship was in many ways an illusion during the middle part of this century. No conservatives voted for the Civil Rights Act. Most opposition was, obviously, Southern. 42 non-Southern Representatives voted against the Civil Rights Act (I count Missouri and Oklahoma as border states, since their delegations split rather evenly); of them, 1 was a Democrat, Walter Baring of Nevada. Five non-Southern Senators voted against the Act; all were Republicans. Of Southrons who voted for the Act, nine Representatives and two Senators, all eleven were Democrats. So the bill worked like this: Southerners opposed it, non-Southerners supported it. Deviations from that were simply partisan: some Southern Democrats, but no Southern Republicans supported it, and quite a few non-Southern Republicans, but almost no non-Southern Democrats, opposed it. The Civil Rights Act was non "bipartisan," it was not "consensus," it was simply an issue where nominal partisan labels did not align perfectly. I think if you re-introduced the Civil Rights Act in 2011, all of the "nay" votes would be Republicans, within the margin of error, because the Dixiecrat Democrats who opposed it are all now Democrats.
But moreover, is it bad that the Affordable Care Act was a Democrats-only bill? (Setting aside the fact that it was essentially the Republican 1994 plan, and even the Republican 2008 plan, in substance.) Between the elections of 2006 and 2008, the people of the United States voted in such a way as to make the median Senator the 10th-least-liberal Democrat. They voted to give the Democrats nine surplus votes in the 111th Senate. A few years earlier the Senate was configured to give the Republicans five surplus votes. But if we require everything to be a consensus bill, then elections do not matter. If both parties should have equal input into all legislation, or especially big legislation, regardless of the partisan balance of power, then elections have no consequences. If this is the prevailing situation then the people will have close to no power to effect big change in their government when they want it. When they want to throw the bums out, they do not necessarily just want to throw the specific bums out, they want to throw out their ideas. Even during the Roosevelt years, the biggest majorities the world has ever known, there were only 60 Democrats in the Senate. If a 60-to-40 majority still requires the majority to bend over backwards and include the minority's ideas in their legislation, then the election that produced that landslide was meaningless. And if elections are meaningless, then we no longer have a democracy, do we? Instead we have actual rule by the two parties: they set their agendae, and whatever is the consensus compromise between them becomes law. But the people never get to choose, to say we like Party A's agenda better than Party B's agenda. Never. There is no democracy in this system. It isn't even minority rule, although that will often be in practice the result: it is simply capricious. It cares not what the people think. Barack Obama in 2008 clearly stated that he wanted to pass a public option as part of his health-care plan, and a cap-and-trade scheme. He got the most votes as a percentage of population of any non-incumbent ever, and the highest percentage of the popular vote by a non-incumbent since Dwight D. Eisenhower. And the American people have him 59%-41% majorities in both Houses of Congress, with members who broadly supported his agenda. And yet, neither of these central pieces of his agenda, which were fought over in the campaign and which won the election, got done. This is not democracy, this is just incompetence.
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