Breaking The Dam

I'm going to have to pretty much agree with Thers' take:

Like I said over at the Cerulean Cherub's place, getting a health care bill passed through reconciliation would be great fun even if it were a crap bill [...]

From a democratic (small d) perspective, the Senate has been asking for it for a long time now. The filibuster is not a constitutional tradition, and as we've seen, amply, is a safeguard of made-up Senatorial principles, not democratic principles, and the public good be damned.

Yes, we need sane healthcare, but we need lots of sane things that we're not getting because of the absurdities that the Senate enables -- Max Baucus directly represents fewer than a million people, and has extensive power over the healthcare of over 300 million Americans. Why? Because he's a fucking healthcare maven genius! Or not! It's all amazingly silly.

A case could be made that whatever the content of any specific bill, a punch to the solar plexus of the pudgy, complacent Senate would be good for the nation. The nation's health literally rests at the whim of a very small number of individuals who are only directly accountable to a very, very small percentage of the nation's voters. Whatever this is, it's not democracy.

The Senate has basically gotten completely out of control. It was conceived as a saucer to "cool the cup" of the passions of the House, but there's a fine line between that and freezing the cup and throwing it into a meat locker. If the Senate were instituted after passage of the 14th Amendment, the Supreme Court would likely have found it unconstitutionally in violation of the equal protection clause. California has 69 times as many citizens as Wyoming, and yet their citizens get the same amount of Senate representation. The Senate was a bad compromise put in by the Blue Dogs of the 18th century.

What's more, it's gotten worse, as runaway egos and peculiar Senate rules have completely paralyzed the legislative process. The filibuster has only recently been transformed from an occasionally used temper tantrum to a de facto 60-vote supermajority requirement. This recent development is a significant intrusion to the ability of the country to govern itself.

The filibuster, however, has undergone little-noticed changes. Even as successive generations have weakened it by creating the option of cloture, the filibuster itself has become more present in everyday legislative maneuvering. The political scientist David Mayhew argues that we've misremembered our own past on this matter. He's written that Senate has never faced “any anti-majoritarian barrier as concrete, as decisive, or as consequential as today’s rule of 60."

That seems strange, of course. After all, the filibuster was stronger back in the day. But it wasn't used to create a de facto 60-vote majority. It used to be more akin to a temper tantrum. Mayhew looked at FDR's court-packing scheme as one of his examples. The filibuster hardly figured into the discussion. “General opinion is that the [bill] will pass,” wrote the conservative Portland Herald Press, “and sooner than expected, since votes to pass it seem apparent, and the opposition cannot filibuster forever.”

Its elevation to the decisive rule in the U.S. Senate is a recent development, and one that has taken a countermajoritarian institution (both in its structure and representation) and saddled it with a supermajority requirement. The product is an almost impossibly obstructed legislative body. We tend to assume this will work out fine, as we've had the filibuster forever, and we're still around. But the evidence is that the filibuster did not really exist in this form before, and so it's very hard to say whether it will work out fine. And those who think that the political system will always respond to emergency, and that countermajoritarian rules don't matter, should really take a look at what's going on right now in California.

Reconciliation may or may not be able to produce a bill worth a darn; YMMV. But if the fallout from using it produces a demystification of "Senate process" as some kind of holy writ, the effects would be profound. Process changes have often preceded substantive policy changes. Unless you want health care reform and financial regulatory reform and climate change and energy and all the rest in the tender hands of President Ben Nelson in perpetuity, it may be worth breaking the dam that's holding back the country.