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Josh Marshall and the Filibuster

By Matthew Yglesias  

"Josh Marshall and the Filibuster"

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A few days back, Josh Marshall wrote:

It is just bad practice — especially in the face of the last eight years — for numerical majorities not only to use the power of their numbers in straight up votes but to change the rules of the game itself. Notwithstanding the fact that filibuster has been increasingly abused, it was wrong in 2005 and it would be wrong now.

I think this is backwards. The specific thing Republicans were trying to do in 2005, create a special “no filibusters of judicial nominees” rule, was silly. But the correct response, and I said so at the time repeatedly, was to propose to eliminate the filibuster altogether. The filibuster rule was a bad rule when it was used to block anti-lynching legislation in the 1920s, it was a bad rule when it was used to block civil rights legislation in the 1950s, it was a bad rule in 2005, and it’s a bad rule in 2008. Even absent the ability to filibuster the United States would still have an unusually large number of “veto points” at which potential legislation can be blocked, and there’s no compelling reason to add a supermajority requirement to senate votes.

What’s more, as Robert Farley observes the argument from tradition doesn’t really hold up. Traditional practice was for the filibuster to be broken out rarely as an extraordinary tactic. But over the past fifteen years or so, for some reason or another (perhaps related to the increased ideological coherence of the parties), it’s become more-and-more common so that we now speak of a 60-vote threshold as the ordinary hurdle for legislation to pass. Perhaps one can mount a defense of this de facto supermajority requirement on the merits, but it should be understood that routine filibustering is a very recent innovation and that eliminating the filibuster would leave us closer to our traditional practices.

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