Mike Lee on Nuking the Filibuster

[writingprof]

https://www.nationalreview.com/2021/01/nuking-the-filibuster-bad-for-the-senate-worse-for-america/

Mike Lee? National Review? Most of you are out already, I know. But I'm curious to hear retorts to Lee's proposition that Republicans would one day pass much annoying legislation of their own were the filibuster to be eliminated. For example:

-Education reforms embracing school choice, simultaneously rescuing poor families from lousy school bureaucracies and politically declawing left-wing teachers' unions.

-Fully funding a border wall and workplace enforcement of immigration laws, including the overdue "E-Verify" system.

-Wholesale reform of the federal civil service and the Administrative Procedures Act, depoliticizing and disempowering the unaccountable, monolithically leftist federal bureaucracy.

-Health-care reform to make health-savings accounts or association health plans more attractive than government-run insurance programs.

-Laws to improve America's election security and integrity.

-Defunding Planned Parenthood and other abortion providers, and restricting post-viability and sex-selection abortions.

-Defunding critical-race-theory boondoggles at federal agencies and federal contractors.

-Defunding school districts and universities that embrace the "1619 Project" and similar anti-American, ahistorical fiction.

-Correcting outdated regulations governing our biggest technology corporations, especially the rules governing social media companies' opaque and biased moderation practices.

-Barring federal aid to cities that defund their police departments.

-Protecting religious freedom from woke outrage mobs.

-Stripping jurisdiction over controversial social issues from activist federal judges, and democratically overturning past unconstitutional judicial rulings.

-Turning the District of Columbia — over which Congress has total legislative authority — into a working laboratory of conservative policy experimentation.

-Ending "fiscal cliff" brinkmanship with laws that automatically trigger continuing resolutions and debt-limit increases coupled with across-the-board spending cuts, should Democrats ever fail to compromise with Republicans on those deadline bills.

-Further protecting Americans' Second Amendment rights.

-Ending cronyist policies that empower corporations at the expense of small businesses, and cutting into the federally subsidized corporate sponsorship of left-wing activism.

-Tying colleges' eligibility for federal student loans and tax-free endowments to their protection of the First Amendment and due-process rights on campus, and perhaps even the intellectual diversity of their faculty.

-Tying U.S. contributions to the United Nations to the implementation of long-overdue reforms of the corrupt international organization.

-Adding work requirements and ending marriage penalties in every federal welfare program and every state program that receives federal matching funds.

-Updating the National Labor Relations Act with right-to-work reforms and modernizing its rules for America's hyper-politicized public-sector unions.

-Block-granting or voucherizing Head Start and low-income housing programs so they don't fail yet another generation of poor families.

-Increasing fracking and nuclear-energy production.

-Divesting the federal government of millions of acres of land it owes to western states like Utah.

Why is he wrong?

[Caracal]

If you win elections and you can get enough support for legislation, and that legislation is constitutional, then sure, I think you should be able to pass it. Of course if you pass a bunch of legislation that is unpopular, you might lose the next election and your legislation gets repealed. Is that a controversial idea?

The Republicans were fully in control of the government and still couldn't pass their repeal of the affordable care act-it was under budget reconciliation so they didn't need 60 votes. Just 50. The couldn't get them. They didn't ever bring a vote on another plan, because they knew allowing insurance companies to deny coverage to people with pre-existing conditions would be unpopular.

By the way, lots of items on this list wouldn't pass constitutional muster. Most are incoherent talking points rather than legislative ideas. Others would just be very unpopular in practice. But sure, if Republicans win future elections and want to try to pass unpopular legislation, they shouldn't need some extra special majority to do so. In practice, you can already get around the filibuster with budget reconciliation for many items on this list anyway.

[Parasaurolophus]

If the price of maybe stopping future Republican legislation is not being able to pass your own legislation pretty much ever despite holding majorities, then that's easy math. Doubly so if you recognize that we're at a crossroads, and that some of the big stuff that needs doing needs doing ASAP.

[mleok]

If the price of maybe stopping future Republican legislation is not being able to pass your own legislation pretty much ever despite holding majorities, then that's easy math. Doubly so if you recognize that we're at a crossroads, and that some of the big stuff that needs doing needs doing ASAP.

Not to mention that passing such legislation may be the key to retaining their control of the senate, thereby making the potential consequences of future Republican legislation moot.

[dismalist]

Why is he wrong?

He is wrong because the long term strategy of the Democratic Party is to change all institutions -- the rules of the game -- to ensure a permanent Democratic majority.

-Statehood for DC and everything else in sight.
-Abolish the electoral college; one [wo]man, one vote.
-Abolish much of the Constitution by appointing a Democratic Supreme Court [bad luck this time around].

The Filibuster is a major barrier on this road. Thus, it has to go.

[Caracal]

Why is he wrong?

He is wrong because the long term strategy of the Democratic Party is to change all institutions -- the rules of the game -- to ensure a permanent Democratic majority.

-Statehood for DC and everything else in sight.
-Abolish the electoral college; one [wo]man, one vote.
-Abolish much of the Constitution by appointing a Democratic Supreme Court [bad luck this time around].

The Filibuster is a major barrier on this road. Thus, it has to go.

Statehood for DC and PR would hardly ensure a permanent democratic majority. Republicans have a big structural advantage in the senate that wouldn't be changed with two democratic states.

There's nothing congress can do to abolish the electoral college without an amendment and you don't need a filibuster to keep that from happening.

I have no idea what you're talking about with the constitution...

[Parasaurolophus]

I have no idea what you're talking about with the constitution...

I don't like this guy I'm about to link to, and I don't much care for the blog, either. So they don't get more than a half-hearted endorsement from me (not that anyone cares). But when I read this post last year, I felt like it explained a lot. I'll quote the important bits:

Here is what the True Believers believe:

Liberal judges legislate from the bench, while conservative judges follow the law. I swear on the souls of my grandchildren that they actually believe this. They believe this in the way that I believe there's a city in Australia called Melbourne, that is, as an unquestionable self-evident empirical fact.

Now the smarter ones will admit that this isn't always 100% the case, because of the No True Conservative phenomenon, but they still present the basic proposition as self-evident. They reason they can do this is that, for Federalist Society types, their ideological commitments in matters of legal interpretation aren't ideological commitments: they're simply a statement of what law is. I mean this absolutely literally. This is what they believe.

For example, originalism isn't the correct approach to constitutional and statutory interpretation because it gets you desirable results, politically speaking: it's the correct approach for the same reason you get three strikes in baseball, not two or four (five is right out). Those are just the rules. That's what Roberts meant when he said it's all about calling balls and strikes.

Again, I must insist that they really and truly believe this, and that even getting them to understand why this position is not self-evidently correct is almost impossible: it's like arguing with Scientologist about Xenu, or a Christian evangelical about the literal inerrancy of the Bible.

If you accept this basic insight, everything else flows naturally from it. To reference Scott's post, the Federalist Society's function is is not to ensure that judicial nominees are ideologically orthodox, but rather to ensure they follow the law. Senate Republicans should preemptively refuse to consider any SCOTUS nominee from a Democrat president, because the Democrat party obviously doesn't respect the law, since it nominates judges who legislate from the bench, rather than following the law.

[writingprof]

Here is what the True Believers believe:

Liberal judges legislate from the bench, while conservative judges follow the law. I swear on the souls of my grandchildren that they actually believe this. They believe this in the way that I believe there's a city in Australia called Melbourne, that is, as an unquestionable self-evident empirical fact.

Now the smarter ones will admit that this isn't always 100% the case, because of the No True Conservative phenomenon, but they still present the basic proposition as self-evident. They reason they can do this is that, for Federalist Society types, their ideological commitments in matters of legal interpretation aren't ideological commitments: they're simply a statement of what law is. I mean this absolutely literally. This is what they believe.

For example, originalism isn't the correct approach to constitutional and statutory interpretation because it gets you desirable results, politically speaking: it's the correct approach for the same reason you get three strikes in baseball, not two or four (five is right out). Those are just the rules. That's what Roberts meant when he said it's all about calling balls and strikes.

Again, I must insist that they really and truly believe this, and that even getting them to understand why this position is not self-evidently correct is almost impossible: it's like arguing with Scientologist about Xenu, or a Christian evangelical about the literal inerrancy of the Bible.

If you accept this basic insight, everything else flows naturally from it. To reference Scott's post, the Federalist Society's function is is not to ensure that judicial nominees are ideologically orthodox, but rather to ensure they follow the law. Senate Republicans should preemptively refuse to consider any SCOTUS nominee from a Democrat president, because the Democrat party obviously doesn't respect the law, since it nominates judges who legislate from the bench, rather than following the law.

Speaking for the gang, we certainly do believe the bolded part.

Why is he wrong?

He is wrong because the long term strategy of the Democratic Party is to change all institutions -- the rules of the game -- to ensure a permanent Democratic majority.

-Statehood for DC and everything else in sight.
-Abolish the electoral college; one [wo]man, one vote.
-Abolish much of the Constitution by appointing a Democratic Supreme Court [bad luck this time around].

The Filibuster is a major barrier on this road. Thus, it has to go.

Ugh. These sound like things that I oppose.

[Sun_Worshiper]

I agree that nuking the filibuster is a bad idea. And I don't think this Democratic Senate will do it. What I could see is some select rolling back of the filibuster, which will be further escalation of we've seen recently. In the long run the filibuster will probably get axed, maybe by Democrats or maybe by Republicans.

What about bringing back earmarks? Corrupt, sure, but they also help with passing bills and and creating bipartisan support for them.

[dismalist]

What about bringing back earmarks? Corrupt, sure, but they also help with passing bills and and creating bipartisan support for them.

Agreed. But a cheap way of bribing for consensus.

[kaysixteen]

Remind me why making DC and PR states is bad, is in the interests of fostering 'democracy', etc.   Same with abolishing the electoral college....

[dismalist]

Aaahh, let's get a clear result: How about an Acerbo Law?

https://en.wikipedia.org/wiki/Acerbo_Law#:~:text=The%20Acerbo%20Law%20was%20an,party%20a%20majority%20of%20deputies.

I believe de Gaulle wrote something similar into the Constitution of the French 5th Republic. [Apparently, the first four Republics didn't work.]