There are two possible outcomes to this game of nuclear brinksmanship. One sounds like fun. The other should give limited government advocates pause. The first outcome has Democrats retaliating by refusing cooperation on most of the ordinary business of the Senate. As former Democratic leader Tom Daschle explained to the New Yorker’s Jeffrey Toobin recently, “The Senate runs on ‘unanimous consent’…It takes unanimous consent to stop the reading of bills, the reading of every amendment. On any given day, there are fifteen or twenty nominations and a half‐dozen bills that have been signed off for unanimous consent. The vast work of the Senate is done that way. But any individual senator can insist that every bill be read, every vote be taken, and bring the whole place to a stop.”
Bringing the Senate to a crashing halt will hardly scare those of us who believe that no man’s property is safe while Congress is in session. In fact, there would be something perversely entertaining about C-SPAN programming dominated by the monotonous recitation of 700‐page agriculture bills. If only the senators could be forced to sit and listen. The Intelligence Reform Bill of 2004 is 236 pages long, and it’s a safe bet few senators read it in its entirety. McCain‐Feingold clocked in at a mere 36 pages, yet in February 2003 The New York Times reported that the Democratic and Republican party organizations had to hire high‐priced lawyers and consultants to run seminars teaching senators and congressmen about the requirements of the law they had just passed. “I didn’t realize what all was in it,” Rep. Robert Matsui (D‐Calif.) said. A breakdown in Senate cooperation would lead to a period of blissful inactivity, and could help educate the public about the increasingly incomprehensible statutes Congress calls “laws.”
But the second possible endgame to the filibuster battle should worry you, unless you think too little legislation is a major problem in American life. There’s a chance that the G.O.P.‘s nuclear gambit could eventually lead to the death of the filibuster as a whole.
That 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.
As the minority party in the first two years of the Clinton administration, Republicans used filibuster threats to hold up a porkbarrel economic stimulus package, campaign finance restrictions, health care “reform,” and a bill banning permanent replacements for striking workers. The historical record in that period and others shows that the filibuster is an essentially conservative instrument.
Smart liberals in the commentariat, like Slate’s Tim Noah and The American Prospect’s Matt Yglesias, are starting to recognize this. As Yglesias noted in a recent column for the Prospect, Americans are congenitally suspicious of new “ ‘big government’ schemes,”