FauxPolitik

Thursday, April 28, 2005

Filibuster blues: I've totally avoided any discussion of the "nuclear option" re: filibusters in the Senate. If you ask me, there's only one nuclear option when it comes to the Senate and I say Hiroshima their ass tomorrow (ba-dump). But Gene Healy got me thinking about it a little this morning. His premise is that the filibuster is hisotrically a conservative tool, used to prevent increased government activity and losing the filibuster would be like opening the floodgates for legislation by expansionist liberals (Gene makes the case that there's no principled difference between regular filibusters and ones in the case of judicial nominations. I say what do principles have to do with anything and why can't they be different, but that's another argument).

[the death of the filibuster] would be disastrous. The theory underlying the Constitution is that, in political life as opposed to economic, transaction costs are good. As James Madison explained in Federalist 62, the Senate itself was designed in part to curb "the facility and excess of lawmaking." The filibuster isn't part of the Constitution, but it helps augment some of the Constitution's checks on promiscuous legislating. Since many of the constitutional checks on legislative overreach have eroded over the years, the filibuster is even more important today.

I was inclined to disagree, for the reason that if all the other checks on governemnt overreach have eroded, who cares at this point. I mean, it's not like it's worked very well the past thirty years or so. That has me wondering, though, who is the "conservative" party. The belief that government must naturally and continuously expand pervades the hearts and minds of both parties, with few exceptions. Expansion is the rule and it's a rare thing when Republicans can muster the collective will to pass any government-limiting legislation. To the extent that there is a small government coalition in the Senate, they are definitely a minority wing of the Republican party. Right now they don't have the numbers to hold a filibuster under any set of rules. I don't see any point when the majority or super-majority of Senators are "smallgovs" but it's conceivable that there could one day be enough to hold a 40 person coalition together (and it's conceivable that simians may aviate from my anus, but I'm looking way into the future).

I don't expect the current crop of Republicans to make any use of the filibuster, no more so, anyway, than Bush has made use of the veto. The only thing they're interested in conserving is their own vice-like grip on the thinnest of majorities, just so they can make Teddy Kennedy sit in the wobbly chair. But a filibuster will be the first tool within reach if there ever is a "Conservative" party.

If Healy is right, and there can be no distinction between regular filibusters and nomination blocking filibusters, then I would say it's not worth giving up just because it helps the other guy this time.

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