The Filibuster Returns

Yevgeny Shrago

Both parties saw the other side of the double-edged filibuster earlier this week. Democrats, lead by Dick Durbin, prevented an attempt to delay implementation of a cap on debit-card interchange fees that passedlast year as part of the Dodd-Frank financial reform. Despite 54 votes for the highly contentious measure, the amendment failed; its bipartisan supporters were unable to reach the magic cloture threshold of 60. Regardless of the merits of this provision, which essentially invited lawmakers to choose which major interest group, retailers or bankers, they wanted to distribute profits to, a pair of interesting observations about the filibuster can be drawn from this incident.

The first is that the filibuster may be the only thing that stands between the 2012 election and a Republican repeal of the Affordable Care Act (ACA). Having managed to push the bill through the Senate across the determined resistance of the 41 Republicans in the minority, Democrats now can use the same tactics to protect the bill, even if their Senate majority evaporates and President Obama loses in 2012. Although the Republicans might try the nuclear option if they ever return to power, they may remember how effectively they used the filibuster to befuddle the Democratic majority, take a glance at the demographics of the two coalitions, and choose to keep the useful tool of obstruction around for the next time they lose power. This dynamic has protected the filibuster for about 20 years and may very well keep it alive for another 20, at least.

Democrats should not view this stand and their subsequent loss of power as a vindication of their refusal to eliminate the filibuster when they had the chance. First off, a more aggressive fiscal policy, passed without a filibuster, might have propped up the economy enough to keep a few more liberal Dems in office. Moreover, ACA is popular: most progressive programs are after enactment. Keeping the filibuster does more to prevent the passage of new programs than to protect the operation of the old ones. The silver lining, however, is that the filibuster can protect unpopular but necessary elements of programs like ACA. Shearing the mandate off of ACA might be popular, but it would be a disaster for health care.

The second interesting point about the filibuster is that it discredits claims that the filibuster is valuable because it guarantees bipartisanship. Leaving aside the question of why buying extra senators with pork or stripping useful parts out of bills to attract Republicans is a virtue, this battle shows why bipartisanship doesn’t matter.  This bill’s cosponsors were Democrat Jon Tester and Republican Bob Corker, and it attracted support from Senators in both parties, yet it still couldn’t pass. All that the filibuster really means is that the only substantive bills that can pass are those without substantial opposition from powerful interest groups. Promoting bipartisanship becomes code for preserving the status quo.

Although the defeat of Tester’s attempt to slow the debit-interchange fee cap will soon be forgotten, it should mark the point where the filibuster stopped frustrating liberal Democrats in their attempts to build the progressive state and started helping them in their attempts to defend it.


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