Small States and Filibusters

Fred Hiatt, with whom I agree about as often as Dick Cheney admits error, has some good points in a recent Washington Post op-ed. Fred being Fred, he still manages to annoy me with the following comment:

The advent of the 60-vote rule in the Senate has magnified the already formidable checks and balances built into the Constitution, with the disproportionate blocking power it awards small and rural states.

Health insurance reform advocates have lamented for months the influence of small and rural states on crafting the legislation, as Max Baucus’s Gang of Six was wholly made up of senators from small, rural states. Dissing small and rural states is a recent phenomenon, and reflects poorly on those—mostly progressives—who put it forward.

Small states are still states. Just because most of them are in what the MSM thinks of as “fly-over country,” not part of either coast, doesn’t make them any less worthy. They are just as likely to produce fine lawmakers as larger states. The problem with the Gang of Six wasn’t that they were from small or rural states; it was that Charles Grassley was a duplicitous bastard who did his best to sell Baucus out, and Mike Enzi was essentially a mole who never wanted to make a deal in the first place. Is their behavior unique to small states? Are the senators of larger states immune to such duplicity?

The “disproportionate blocking power” of these states is on people’s minds now because of the 60 votes needed to halt a filibuster. Ezra Klein, with whom I agree several times a day, advocates doing away with the filibuster here. Contrary to what Klein says, the filibuster provides a potentially valuable role by keeping public policy from swaying with the winds of public opinion. The last thing the country needs is to have large swaths of legislation changing from Congress to Congress. Some stability is needed, if only to sort things out and give them time to work.

The problem we have today is not the filibuster; it’s the misuse of the filibuster. I’m old enough to remember a time when the Senate routinely passed bills with less than 60 votes. (And no, that’s not because there weren’t as many senators then.) Senators used to be able to say they didn’t want a bill to pass, but that it deserved to come to a vote and the majority could rule.

No more. Now virtually everything that won’t stop the government dead (and is thus subject to the reconciliation process, which bypasses filibusters) requires 60 votes. That’s not the purpose of the filibuster. It’s designed to keep the majority from running roughshod over the rights or interests of a sizeable minority.

Some would say that’s why using the filibuster is a legitimate means to kill health insurance reform. Maybe. Let’s line up everyone who is threatening to vote against cloture and survey them on past positions, or on the reason they’re voting to kill the bill. I’m willing to bet at least a dozen will cite reasons that are at best disingenuous, or, at worst, downright dishonest. Those senators, as individuals, are misusing the filibuster. That’s where the problem lies, not in how big or small their states are or whether the filibuster serves a useful purpose in its proper place.

Be Careful What You Ask For

In 2004, alarmed at the prospect of Mitt Romney appointing a replacement for John Kerry should he become president, the Massachusetts legislature passed a law stripping the governor of the power to fill vacant Senate seats, demanding a special election to be held no fewer than 145 days after the seat becomes vacant. The law never had to be applied.

Now Ted Kennedy has asked the legislature to amend the law to allow Governor Deval Patrick to appoint an interim Senator to fill the gap between the time Kennedy may be unable to serve and the election, so the “Commonwealth [will] have two voices speaking for the needs of its citizens and two votes in the Senate during the approximately five months between a vacancy and an election."

Of course, it’s health care reform that’s on Kennedy’s mind. He’s the magic 60th vote the Democrats need to invoke cloture in the event of a Republican filibuster. That vote won’t wait five months. Even if Kennedy resigned today, it would be too late.

This is why it’s never a good idea to change established law to accommodate a temporary situation. Massachusetts panicked at the prospect of Republican Romney appointing Kerry’s replacement; their remedy now prevents Democrat (and Obama supporter) Patrick from appointing Kennedy’s.

Republicans who were hot to do away with filibusters several years ago would do well to remember this. No political situation is permanent. Without the threat of filibuster in the Senate, they’d be powerless to stop a health care bill they’d like even less than any of the current options. Not saying whether that’s a good things, or a bad thing. Just that it’s wise to remember the sun doesn’t shine on the same dog’s ass every day.