An Alternative Universe without the Filibuster

Two months ago, former Senator Ted Kaufman spoke to the monthly meeting of the Progressives Democrats for Delaware, one of the things he said that took me by surprise was his opposition to filibuster reform. Kaufman viewed the filibuster as an indispensable part of the check and balances of our government, and while he agreed that the Republicans have abused it, he would hate to see what a Republican President, a Republican House and a Republican Senate would do if minority Democrats had no power to stop legislation.

But Kaufman was almost acting as if it were a fait accompli that the filibuster was going the way of the dinosaur, because he quaranteed that the Republicans, whenever they regain control of the Senate, would immediately do away with it, especially if they have a Republican President and House to work with.

Indeed, the Republicans probably will, because they will always do what they can when they can to advance their cause. Democrats always worry about comity, bipartisanship, the institution of the Senate and whether their action will hurt the Republican’s feelings. Now that Harry Reid has stated his regret that he did not reform the filibuster when given the opportunity in January 2011, it would appear that the filibuster as we know it will end this coming January, no matter who wins control of the Senate.

Now, what would the last four years have looked like if there was no filibuster? The alternate reality is a pretty glorious place.

Had the filibuster not applied, the United States would have a market-based system to control carbon emissions, which would limit the damage from global warming, vitalize the clean technology sector, and challenge other large polluters like China and India to do the same. The new health care law would have a public option. Children of undocumented immigrants who served two years in the military or went to college could become US citizens. Women paid less than their male colleagues because of their gender would have broader legal recourse against their employers. Billionaires would not be able to manipulate the political system from behind a veil of anonymity.

Dozens of vacant judgeships would have been filled. The Federal Reserve would have operated with a full slate of governors, including Nobel Prize-winning economist Peter Diamond. Elizabeth Warren would be director of the Consumer Financial Protection Bureau, not a candidate for the Senate. And Mitt Romney would be paying a higher tax rate than the 13.9 percent he shelled out in 2010, since a provision to end the carried-interest tax break wouldn’t have died in the Senate. (By my math, that filibuster saved Romney $1,480,000 in 2010 alone, the difference between the 15 percent he paid on $7.4 million earned in carried interest and the top marginal rate of 35 percent.)

Each of these measures passed the House and received, or would have received, at least the 50 votes necessary to pass the Senate — but lacked the 60 votes to break a filibuster. (Nominations are handled — or not — solely by the Senate.) Since 2007, the GOP has filibustered legislation with majority support 78 times.

By my estimation, that is a rather conservative accounting of the situation. Without the filibuster, I think the tax cut on the wealthies of Americans would have expired, and we might have avoided the debt ceiling showdown.