A Modest Defense of Democratic Filibuster Hypocrisy

In 2005, Democrats filibustered a few George W. Bush judicial nominees, who they thought were particularly radical. For a while, at least. Then Majority Leader Bill Frist (yeah, remember that guy?) threatened to use the "nuclear option" to change the rules of the Senate while it was in session.* Democrats backed down. A bunch of moderate Senators crafted a deal in which Republicans agreed not to destroy the filibuster and Democrats agreed to stop filibustering. The nominees got confirmed, and hey, guess what? They're particularly radical. During the whole controversy, of course, lots of Democrats said a lot of stuff about how great the filibuster is, and lots of Republicans said lots of stuff about how terrible it is.

On November 21st, 2013, one day before the 50th anniversary of the Kennedy assassination and two days before the 50th anniversary of Doctor Who, the Democratic Senate majority used the "nuclear option" to prevent the minority from obstructing executive nominees or judicial nominees other than to the Supreme Court. This isn't the first time we've had tons of Democrats now saying stuff about how horrible the filibuster is and Republicans writing paeans to it, in a bit of entertaining "everyone's a hypocrite!" theater. There's these two pieces, for example, by Slate's Emma Roller, showing the flip-flops of both President Obama and Senate Minority Leader Mitch McConnell. Mostly I think it's true that everyone's a hypocrite on this, or more specifically that this is a prime example of my long-time theory that no one has any actual beliefs about procedure except as they relate to substance. Republicans, for instance, tend to favor a small federal government because most of what the feds do these days is somewhat progressive economic stuff, regulation and redistribution and all that, but when the feds are criminalizing marijuana, suddenly Democrats love federalism. Except, and I know this is easy to mock coming from a hard-core Democratic partisan, I honestly think the combination of the two Democratic positions, from 2005 and 2013, is a lot more defensible than the combination of the Republican positions, for mostly kind of happenstance reasons.


Because, you see, the thing is, in 2005 it's not actually clear that letting the Republican President and the Republican Senate majority do stuff that they wanted was the democratic thing to do. (And I don't just mean that as an inversion of the whole "the United States shall guarantee to each state a Republican form of government" thing, heheh.) First we have a Republican President who came in second the first time he ran for President, took office, and then engaged in a whole lot of skullduggery to ensure his "re"election, which he never would've been running for in the first place had we let the guy with the most votes win back in 2000. On top of that, I did a little analysis at the time and discovered that the 45 Democratic Senators in 2005 had a larger combined constituency than the 55 Republican ones. Yeah. They represented states with larger combined populations. They received more votes in their most recent elections. They won those elections by larger combined margins. Any way I tried to calculate things, the popular inputs of that Senate were more Democratic than Republican, but there were ten more Republican Senators than Democrats.

What we had, then, in 2005 was a curious situation in which several undemocratic features of the American government happened to line up in opposite directions. It's undemocratic that the person who gets the most votes for President doesn't become President. It's undemocratic that a Wyomingan's vote counts for so very much more than a Californian's in constituting the Senate. And it's undemocratic that the side with the most votes within the Senate doesn't get to win. But in 2005, the side with the most votes in the Senate was the side taking advantage of those first two undemocratic features. So is it wrong, is it undemocratic, of a Democratic "minority" which in fact represents more than half the country to obstruct the nominations of a President who arguably lost both his elections? I dunno. Maybe it is. But it's certainly a lot less wrong than the current Republican minority, which represents a smaller portion of the country than it constitutes of the Senate, obstructing actions taken by the guy who set a new record for highest vote share out of the entire American populace by a non-incumbent, and who then won re-election by five million votes despite concerted efforts by the other side to suppress the vote among his constituency. (And yes, that's rooted in part in factual conclusions that Bush did kinda steal his Presidency but Obama didn't. If you disagree, well, you're wrong, but also you'd have legitimate grounds on which to dispute my conclusion, though my claims about the respective constituencies of the Senate Democratic and Republican caucuses would remain 100% valid.)

Note that I haven't yet even mentioned anything about the substantive use to which each side has put its filibustering. Once I do, it becomes apparent that the Democrats really did only filibuster a couple of particularly ideologically objectionable judicial nominees, while the Republicans are at this point obstructing everything as a matter of principle and have taken the position that for Obama to nominate judges at all is illegitimate. I don't think it should be controversial that one of these things is not like the other. But my claim is in a sense more fundamental than that: each individual act of obstruction by the 2005 Democratic minority had a peculiar kind of democratic justification, because they could plausible claim to represent more of the country than the so-called majority, while each individual act of obstruction by the 2013 Republican majority lacks that justification altogether. And that makes the Democratic flip-flop on the filibuster during those eight years just a little bit more defensible than the Republicans' mirror-image flip, I daresay.


*This is radical only because of one of the more peculiar, inside-baseball quirks of our national legislature. Senate rules require a two-thirds vote to change the rules, which is obviously never gonna happen. But there's this ancient principle that "Parliament cannot bind a future Parliament," i.e. the legislature today cannot prohibit the legislature tomorrow from doing something. In practice this means that, say, the 104th House of Representatives cannot make rules for the 105th House of Representatives, and similarly with the Senate, although there's a semi-serious argument that because Senate terms last for more than one Congress the Senate is a "continuing body" that can in fact make rules that last across sessions. Because very few people take that argument seriously, the consensus is that when the new Senate is gaveled in on January 3rd of an odd-numbered year, it has no rules yet, and is in a kind of parliamentary state of nature. Once it does anything under the existing rules, it has implicitly accepted those rules as its own, and the two-thirds requirement kicks in. If, however, the very first thing it does, maybe after swearing in the new Senators, is to adopt different rules, well, there's nothing stopping 'em. The nuclear option is basically the majority saying "fuck that" to that whole train of bizarro logic, and just changing the rules in the middle of a session without a two-thirds vote 'cause who's gonna stop them?