A FEDERAL NUCLEAR OPTION?

In the news of late, there has been an ongoing story regarding the Senate of the United States. The majority leader of that body has been threatening to change the rules of the Senate to put a crimp in its filibuster practice – a change known as the “nuclear option.” The filibuster is a procedural strategy by which a minority can prevent a bill or presidential nomination for a particular governmental position from being considered, debated, and voted for yea or nae. In short, the filibuster permits a minority of senators to stop what the majority wants to approve unless the majority can get sixty out of the hundred senators to vote for cloture. A lot of the coverage emphasizes the obstructive function the filibuster plays in stopping legislation. One can reasonably argue that the current use of the filibuster is seriously hampering the political system from functioning; that is, through the excessive practice of the filibuster, the Congress has not been able to address serious problems such as high levels of unemployment. Whether this is true or not, one can agree that carrying on a filibuster by a minority of senators can effectively stop desired policy by the majority. Under the current rules, many say, it is too easy to conduct a filibuster and it does not extract enough of a cost on those participating.

How does the filibuster rate as a federalist practice? One of the attributes of a federated system I have identified in this blog – particularly a liberated federalist system – is that its policy forming process, through an appropriate structure – at the national level, that would be the Congress – should seek as much consensus as possible. This is especially true at the national level since the resulting policy will affect a wide diversity of local conditions across our national landscape. Consensus, by its very nature, means that policy has to be acceptable to varying populations and interests. This demands a narrow acceptable range of policies. Proposed policies that are at significant variance from the mean of political opinion should be discarded. So if a proposal can be judged to be outside the main body of acceptable public policy, the process is legitimately within its federalist bounds to obstruct the acceptance of such policy even if the majority is seeking it.

Now you might ask: how can the majority of elected officials strive to implement policy outside the mean of public opinion? Don't these politicians depend on getting votes from people to keep their jobs? And won't those people look on these politicians with disfavor if they are voting for unpopular legislation? The answers are yes in each case, but it's not all that simple. In fact, it is complicated on several dimensions. For example, look at our farm policy. One might argue that socialism is unpopular in the US, but we regularly vote for socialist policies. Our farm legislation, that calls on a strong government presence in the agriculture industry, is very popular among citizens who would otherwise vehemently be opposed to socialism. They just don't see subsidizing farmers, particularly large corporate farmers, as examples of socialism, but it is. All of this suggests that a lot of what is favored and what is not is highly subject to language manipulation. Effectively symbolizing what one wants can be very useful in framing issues and in proposing policies – useful to those who are seeking otherwise unpopular policies.

But of course, all of this is subject to being subjective. What's outside the bounds in one person's perspective is all-American in another person's view. And all of this is starting to affect how we see our government. While government and government officials are generally no strangers to discontent among the citizenry, current polls indicate a seriously low “favorability” toward our congress and our congresspeople. One poll rates North Korea above the US Congress. How does such sentiment affect a future possibility when our congress has to pass legislation that calls for sacrifice? This can be potentially a serious situation and Congress needs to be highly sensitive to the effect low favor-ables have on its ability to function under challenging crises.

Now I might be making more of this than what is merited. The history of bad-mouthing our congress is long and robust. But that does not mean it should be an issue that our legislators should ignore. We all know about Jimmy Stewart in Mr. Smith Goes to Washington conducting a talking filibuster in the Senate. Many have called for the re-institution of the talking filibuster. Sen. Rand Paul the other day conducted one to showcase his opposition to the confirmation of John Brennan as CIA director. There he stood for hours until nature forced him to cease his symbolic gesture. Perhaps that re-institution as a necessary form of filibustering – as opposed to an opted form – will be the proper balance between banning the filibuster and leaving things as they are. My point here is not to go over all the ins and outs concerning the filibuster, but to explain that one of the supportive arguments of the filibuster – one mostly ignored – is that there is a sense that structural elements that are in place to slow the policy making process are elements to further the process's deliberative quality and to strive to as much consensus as is possible. Hence, any options that are to be considered in changing that process should be sensitive to, one, keeping a meaningful level of deliberation and, two, encouraging consensus. Both of these aims would be furthered by deliberative processes that are not undue obstacles and by language that doesn't aim at obscuring what is being sought, but is clear and aboveboard.