On Filibusters, Super Majorities, Judges and Taxes


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Last night's deal by Senate "Moderates" averted the need for the Republicans to attempt the "nuclear option" or for Democrats to filibuster, at least today. I feel, though, that from the perspective of best practices for public policy, some key points got lost in the shuffle as Senators pondered the true meaning of Advise and Consent. First off, for years now, maybe since Roe vs. Wade, activists on both sides--particularly the far-right--have tended to view the court as a partisan body. The strategy has been to attempt to whip together five justices who are against abortion. Just like counting heads for a vote in the House. This has mightily confused a lot of people about what it means to be a good judge and what exactly the court does. The court did not help its case in 2000. It would have served the country well to have a full blown debate about what makes a good judge. There are a lot of issues at play with many of the judges in question, Janice Rogers Brown, William Pryor and Priscilla Owen, particularly with regards to labor, consumer and minority rights. But you don't hear a lot about it from the James Dobson-led gang of culture warriors. But that's not the thrust of what I mean to write about. Which brings us to point number two....

It takes 60 votes to end a filibuster in the Senate. So, with the current rules in place, it takes a 60% majority to appoint a judge. Since judges get to stay on the bench for as long as they like, a certain amount of consensus on appointments is a good thing. Attempting to pick a judge despised by half of the Senate, perhaps, is not the best way to serve the American people. If legislation turns out poorly, the people can electorally punish the legislators who passed it by replacing them with new ones who can reverse, modify, or completely change past laws and spending priorities. Not so with judges. It seems to me that we ought to acknowledge the difference somehow. I don't think it's bad thing to have a higher threshold for decisions that are inherently less amendable. As William Saletan points out over at Slate many politicians, even federal Republicans, cherry-pick issues on which to support simple majority rule. Their ought to be some sort of rubric for deciding when 50%+1 will work, and when some greater level of support will be required to elect, appoint, decree, proclaim or legislate.

Yesterday I wrote about how in Minnesota, Governor Tim Pawlenty wants to give 20% of property owners the power to spur special elections aimed at blocking revenue increases. While this measure would be particularly absurd, should it stick, several states require a supermajority to increase taxes--and in a few cases, to pass the budget at all.

To wit, Arizona, California, Nevada, Oregon and South Dakota require a two-thirds majority to increase revenue. Delaware, Kentucky, Louisiana and Mississippi take three-fifths. And Arkansas and Oklahoma require three-quarters.

Some might consider these provisions to be upholding the "tyranny of the minority." After all, most substantial legislation does not pass unanimously. 20% or 33% of any legislature or population will surely find cause to disagree with their neighbors and peers on many issues. Certainly, if the Federal Government had the same budget rules as these states, we would not frequently pass a national budget.

I have frequently found myself displeased with legislation in recent years, but if the talk is to be about process and not outcome, we must define when a supermajority is fair, and when it is best to keep our majorities simple. Continuing down the road of ad hoc, jury-rigged parliamentary order is a sure way to make most citizens tune politics out, and that is just about never the best path towards responsive government.
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