Have we just seen a simultaneous, mutual flip-flop on the filibuster? Democrats, many of whom spent the last two years railing against obstruction in the U.S. Senate, this winter cheered the "Wisconsin 14" for walking out on Gov. Scott Walker's anti-union bill, using quorum rules to stage a quasi-filibuster of their own. Republicans, who spent those same two years defending a passionate minority's right to obstruct, were suddenly up in arms over the Wisconsin "fleebaggers."
So are we all hypocrites now? As Matt Yglesias challenged filibuster fans : "What's so different about the US Congress that routine supermajorities are [a] good idea there but not for state legislatures?" From the other direction, Jonah Goldberg pointed out that "many of the same voices [that criticized the Senate filibuster] are celebrating the fugitive lawmakers as heroes." Nor is this the first time that the parties seem to have swapped positions: in 2005, Democrats were singing the sanctity of unlimited debate on judicial nominations, while Republicans were threatening to unleash the "nuclear option."
To be fair, each side can argue that it's been acting consistently the whole time. Liberals can fairly point out that the Wisconsin walk-out only delayed Gov. Walker's bill, but couldn't prevent a vote indefinitely; it's also true that one instance of obstruction in extraordinary circumstances is hardly the equivalent of the minority rule that has become a way of life in the U.S. Senate (with an unprecedented 275 filibuster threats in the last two Congresses). Conservatives, for their part, can claim that filibusters of judges are a more serious matter than filibusters of legislation.
Still, it's hard to shake the public impression that there's no such thing as a principled, "veil of ignorance"-style case against the filibuster -- a case that boils down to more than helping the majority enact its policy preferences. More importantly, the senators with the power to restrict the filibuster understand that today's majority is tomorrow's bystander. The most recent attempt at reform -- which would have forced would-be obstructionists to talk nonstop, rather than merely threaten to -- failed in January, in large part because Democrats could easily imagine the day (perhaps starting in 2013) when "they might soon need the filibuster themselves."
The most powerful case against the filibuster, then, wouldn't appeal to senators' self-interest as members of the majority or the minority -- it would appeal to their more lasting self-interest as legislators invested in keeping the Senate relevant. It would show how a Senate that tolerates obstruction for too long will ultimately see its influence leach away. When supermajority votes become business as usual, writes Ezra Klein , "it's bad for Congress and bad for democracy. It means power devolves from the legislature and towards unelected, unaccountable organizations."
The power-shift is already underway. After the Senate's failure to pass climate change legislation, the EPA moved to regulate greenhouse gasses on its own. With the supermajority requirement standing in the way of economic stimulus for most of 2010, the most significant attempt came from the Federal Reserve's "quantitative easing" program. Even when the Senate took last-minute action to end "Don't Ask, Don't Tell," it did so knowing that the courts were ready to step in with a repeal order of their own.
Whatever one thinks of the outcomes, removing decisions like those from the legislature threatens accountability in general, and threatens the institution of the Senate in particular. In fact, the struggles of our Senate are an example of a broader rule: legislatures that make obstruction a way of life tend to get bypassed.
Some of the best evidence for this comes not from the recent past but from ancient history -- history that was familiar to our classically-educated Founders. The Senate of the ancient Roman Republic was the first legislature to use the filibuster, the first to abuse it, and the first to suffer the consequences.
One Roman senator, in particular, had a special fondness for the host of obstructionist tools scattered across Rome's constitution: Cato the Younger, Rome's fiercest traditionalist and the leading voice of the optimates, the Republic's conservative elite.
His first recorded filibuster came against the state's private tax collectors. Rome, still struggling to govern an empire with tools designed for a city of a few thousand, had no permanent bureaucracy to collect taxes from its provinces. Instead, it sold the right to tax to the highest bidder. For the winning contractors, the publicani, the reward came in setting the rate as high as a province could bear, paying the treasury an agreed-upon amount, and pocketing the difference.
In 60 bce, however, Rome's eastern provinces were wrung dry by years of war and drought. The publicani found themselves in the unfamiliar position of losing money on their tax-farming contracts -- unless the contracts were renegotiated at a drastically lower rate.
So the tax collectors demanded new contracts. Because they were among Rome's most influential businessmen--and because they had the powerful backing of Crassus, Rome's richest man--most of the Senate was inclined to give in. Cato, however, refused. A contract, he insisted at great length, was a contract. If the publicani had bid too high, that was their misfortune; contracts were meant to be lived by and, if need be, suffered under.
So adamant was Cato that he declared that not only would the publicani get nothing, but he would shut down the entire Senate until they went away. In that spirit of moral purism, Cato began a months-long campaign of obstruction that would bring the Senate to the point of paralysis. Halfway through the deadlock, his fellow senator Cicero complained to a friend:
It is now three months that he has been worrying these wretched tax-collectors, who used to be great friends of his, and won't let the Senate give them an answer. So we are forced to suspend all decrees on other subjects until the tax-collectors have had an answer. For the same reason I suppose even the business of the foreign embassies will be postponed.
After six months, the publicani finally gave way. But they did not go quietly: they announced that if Cato was so set on holding them to an unjust bargain, they were no longer capable of holding up their end. They threatened to simply walk away from their contracts, and Rome's ability to raise any revenue from the provinces it had strained so hard to conquer was thrown into doubt.
From Cato's perspective, adamant obstruction had won out, and little time passed before he deployed the tactic again. His next targets were two generals Cato feared as would-be tyrants: Gnaeus Pompey and Julius Caesar. Pompey had promised his troops small farms of their own in the Italian countryside. It was their expected reward for shipping off to war; but anyone who had spent a day in Rome's teeming, stinking alleyways, straining under an influx of migrants from the country, also understood the case for land reform that could repopulate rural Italy.
The optimates, however, were suspicious of any policy that resembled redistribution--and of the popularity that would accrue to Pompey if he could deliver. Rather than risk empowering Pompey, Cato and his faction froze the Senate again, preventing a vote on the land bill. Pompey's veterans were left empty-handed.
Caesar's request of the Senate was more personal. Freshly returned from a successful campaign in Spain, Caesar wanted the right to celebrate a triumph -- the daylong spectacle in which he, as a conquering general, would be trailed through the streets in a parade of his warriors, his winnings, and his well-wishers. He also wanted to run for consul, Rome's highest elective office. But under a quirk of Roman law, a triumph could only be enjoyed by a commander officially under arms, a status Caesar would lose as soon as he entered the city for the election. Caesar asked the Senate for an exception allowing him to both triumph and run for office, and a majority seemed ready to accommodate him.
But Cato found Caesar's popularity even more threatening than Pompey's and was in no mood to make his path to power any smoother. For the third time in a year, Cato brought the Senate to a halt, seizing the floor to denounce Caesar from dawn to dusk. As it happened to be the last Senate meeting of the year, all Cato had to do was run down the hourglass for a single day -- and for a man famously able to speak at the top of his lungs for hours, it was no great difficulty.
Never before had a senator brought such a range of legislation to the same dead stop in just a matter of months. But while Cato had been implacable in the face of what he saw as corruption or budding tyranny, many of his colleagues, like Cicero, had been willing to cut deals. They understood that the Senate's authority was not a given, and they worried that the obstructive strategy personified by Cato would isolate the Senate from the Roman people and the state's most powerful men.
That, as it turns out, is precisely what happened. Caesar chose the power of a consulship over the glory of a triumph. In his first important act, he took a beefed-up version of Pompey's land reform bill before the Senate. And when the optimates promptly blocked it again, Caesar revealed his backup plan: an alliance between himself, Pompey, and the financier Crassus. Though the three had every reason to be rivals, Cato's dogged opposition helped them make common cause.
With the support of Pompey's veterans, Crassus's money, and his own political savvy, Caesar now had all the cover he needed to take the pivotal land bill directly before the Roman people. His strategy was constitutionally questionable, and it was fiercely opposed by Cato and his faction, but Caesar effectively made the case that the Senate's inaction had forced his hand. As one ancient historian observed, Caesar could now credibly claim "that he was driven forth into the popular assembly against his wishes, and was compelled to court its favor by the insolence and obstinacy of the Senate."
A turning point came when a member of Cato's faction angrily announced to the people's assembly, "You shall not have this law this year, not even if you all want it!" -- and had a bucket of manure dumped on his head for his troubles. With their opponents' intransigence exposed so starkly, Caesar, Pompey, and Crassus were able to pass bill after bill by popular vote: Pompey's veterans had their land, Crassus's tax-collecting friends had their new contracts, and Caesar was voted the command in Gaul that would cement his fame. Their alliance, the First Triumvirate, would sideline the Senate and dominate Roman politics for the better part of a decade.
Is there a lesson here for today's Senate? Cato's endless obstruction succeeded wildly for a time, but it finally empowered his rivals and fatally weakened the Senate he cherished so much. It wasn't any one filibuster that helped wreck the Senate's legitimacy. It was a pattern of obstruction that had begun to look permanent.
Our democratic norms are too strong for senators to ever fear a president governing like a Caesar. And our legislatures aren't hurt by the occasional obstruction that forces public debate on a divisive issue under extraordinary circumstances -- yet ultimately gives way, as in Wisconsin, to the majority and the next election.
But when the filibuster starts to become the rule, rather than the exception, the minority may find itself with more and more power in a Congress that matters less and less. Minority rule will ultimately mean more power for the presidency, the lawyers who draft executive orders, unelected judges, and the federal bureaucracy. Placing limits on the filibuster is the wisest course for any senator who cares about the institution's future.
There's a reason, after all, that there's no filibuster written into the Constitution. Our Founders were deeply read in classical history, and they had good reason to fear the consequences of a legislature addicted to minority rule. As Alexander Hamilton wrote in The Federalist No. 22, "If a pertinacious minority can control the opinion of a majority...[the government's] situation must always savor of weakness, sometimes border upon anarchy." It was true in the time of Cato, and it's still true today.