Now I expected you to find fault with Rand Paul’s lukewarm remarks on the Civil Rights Act of 1964, as I did. But why stretch your case, and your credibility with readers, by asserting that he is a racist? I think the charge of racism reflects an extreme and ultimately untenable view of what constitutes racism, and what separates racism from legitimate political disagreement based on underlying principles. This part of your post, in which you criticize “conservatives” and “over-polite liberals,” is especially puzzling to me:

But if we can’t say it’s racist to oppose the de-institutionalization of racism, then we’re pretty much saying that you’re only racist if you wear a white hood,” this is what I meant. If racism is a “stain on the soul,” then almost nobody can be accused of being a racist, because we can’t reliably look into people’s souls.

If racism is solely or even mainly defined as an action, then the Oxford English Dictionary must be written by “conservatives” and “a fair number of over-polite liberals,” because it primarily defines ”racism” as a belief. (For that matter, Wikipedia too.) Here are both OED definitions for racism:

  • noun 1 the belief that there are characteristics, abilities, or qualities specific to each race. 2 discrimination against or antagonism towards other races.

Those Brits do always strike me as a tad over-polite. But regardless of the primary definition, do you at least acknowledge that there are principles at stake in government efforts to curb racial discrimination? That it is possible to oppose a policy intended to reduce racial discrimination without being racist? Can’t you oppose racial discrimination, and support racial equality of opportunity, but still have legitimate qualms about State coercion of voluntary associations, individuals, and businesses? Suppose the government could reduce racial discrimination by instituting some kind of mandatory racial sensitivity training. Clearly it is not racist to find fault with such a policy.

And surely you do not agree with Press Secretary Robert Gibbs when he says that a discussion of the principles underlying an act of Congress has “no place in our political dialogue.” 

If I had to speculate, I’d say that Rand Paul probably has a deep commitment to libertarian principles, if not a deeply nuanced understanding of how something like the Civil Rights Act might be consistent with Nozickian theory or the writings of Julian Sanchez, and felt that he might risk infidelity to some of these principles by endorsing every provision of the Civil Rights Act without any hesitation. It’s  not as juicy a story, but I think you really need to have near-zero confidence in Rand Paul as a man of some principle, or a warped understanding of racism, to conclude that his remarks or his libertarian views are racis.

Finally, for what it’s worth, you say in your original post that he is “against the Civil Rights Act,” which is not really accurate; his statements then and now indicate the rather different conclusion that he is not unequivocally for every provision of the Civil Rights Act. His official position is that he supports the Act, and would have supported it at the time. This might be nitpicking, but since you phrased the title that way specifically to prompt a response like this, I couldn’t help but take the bait.

It seems really weird to give Goldwater all this credit for not being personally racist while championing a cause supported by racists, and say this is the same thing as Kennedy and Johnson being racist but supporting legislation that advanced the cause of black rights. This is part and parcel of thinking of racism in quasi-religious terms, a stain on the soul rather than a matter of actual behavior, and it’s part of why the American conversation on race remains so counterproductive.

When I said a few days ago, “But if we can’t say it’s racist to oppose the de-institutionalization of racism, then we’re pretty much saying that you’re only racist if you wear a white hood,” this is what I meant. If racism is a “stain on the soul,” then almost nobody can be accused of being a racist, because we can’t reliably look into people’s souls. But a racist is as a racist does, and someone who thinks that outlawing racism is not within the powers of a government that enabled and encouraged racism for 400 years does not deserve the benefit of the doubt.

Second, sane libertarians realize how ridiculous Rand Paul’s views are. Julian Sanchez writes:

Rules for utopia can deal with individual crimes—the mugger and the killer and the vandal—but they stumble in the face of societywide injustice. They tell us the state shouldn’t sanction the brutal enslavement or humiliating legal subordination of a people; they have less to say about what to do once we have. They tell us to respect the sanctity of the property rights that would arise as free people tamed the wilderness in John Locke’s state of nature. They have less to say about the sanctity of property built on generations of slave sweat and blood.

Libertarians need to think harder about how our principles should degrade elegantly, how they can guide us through a fallen world where the live political options seldom afford a full escape from injustice.

Very well said. This reminded me that Robert Nozick, who, next to Ayn Rand, is probably the most influential libertarian philosopher, also acknowledged the problem of historical injustice. On page 153 of Anarchy, State, and Utopia, in a footnote, he grants that the “principle of rectification” of past injustices might allow for “the sort of considerations about distributive justice and equality that I argue against.” In other words, because society has never been perfectly libertarian, because wealth and power were gained through oppression and theft even by Nozick’s lights, it might be appropriate for the state to go outside the bounds of libertarian theory in order to mitigate the resulting inequalities. Nozick devotes precious little time and attention to the implications of this concession, operating instead in the world of ideal theory. But the caveat is there nevertheless, and the case of the Civil Rights Act is probably exactly what Nozick had in mind.

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Rand Paul

Sam Barr’s most recent post makes the rather shocking claim that Rand Paul, the Republican nominee for the U.S. Senate seat in Kentucky being vacated by the retiring Jim Bunning, is a racist, or at least that he is not a non-racist. Sam deduces this from the fact that Mr. Paul is not a “consistent libertarian,” that he “picks and chooses” appropriate targets for government intervention and contends that eliminating racism in the workplace is an illegitimate function of government. Specifically, Rand Paul is pro-life and supports laws against abortion, but says he would have opposed the Civil Rights Act had he been in Congress in 1964.

In Sam’s estimation, Mr. Paul is not racist in the sense that he wears a white hood and burns crosses, but in the sense that, in the words of the illustrious Mr. Kanye West, he “does not care about black people.” Sam’s post rightly implies that the bar for calling someone the “R-word” should be relatively high, a standard many of his fellow partisans have often ignored: witness Sen. John Edwards’s absurd insinuation in the 2004 vice presidential debate that Dick Cheney was racist because he voted against the holiday for Martin Luther King, Jr., while in Congress, or Rep. Diane Watson, an African American congresswoman who condemned her Republican colleagues for the mere act of opposing “the first president who looks like” her, or the relentless attempts by the media to indict the Tea Partiers as a reincarnation of the KKK (we know this is not true, by the way, since if it were, the President pro tempore of the U.S. Senate would be scrambling to join its ranks). Sam’s accusation, unlike many leveled by trigger-happy race-baiting Democrats, is reasonable and deserves an answer. I should explain at the outset that I am not a libertarian per se, that I supported Trey Grayson, Rand Paul’s erstwhile opponent in the Republican primary, and that I have no intention of passing either positive or negative judgment on the Civil Rights Act. What I will argue here is that simultaneous opposition to anti-discrimination policies and support of anti-abortion laws does not a racist make. The reader will have to excuse the length of this post; such a serious charge requires a thorough response.

In Economics 1017, Professor Jeffrey A. Miron, Harvard’s foremost authority on libertarianism, provides an analysis of racial discrimination in the workplace from a libertarian perspective (and luckily for the HPR, I retained my lecture notes from the course). The economic model of discrimination, he explains, begins with the assumption that some people have a “taste” for discrimination, which in this case means people prefer hiring or buying from only persons of a certain race. As any graduate of Ec-10 knows, a free market will in theory drive racist employers out of business. Assume, for example, that some white employers do not like hiring blacks. This preference initially reduces the demand for black employees and reduces their wages, but this results in any employer with non-discriminatory preferences obtaining a cost advantage by hiring black employees. Since the non-discriminating firms have lower costs, they can set lower prices and take profits away from the discriminating firms. The discriminating firms exit the industry as they lose money, which then reduces the demand for white relative to black employees, and results in equal wages for blacks and whites in equilibrium. I would add to this that the economic disincentive to refrain from serving minority customers is even more obvious: business owners who choose not to serve an arbitrary segment of the population put themselves at a competitive disadvantage by depriving themselves of access to a broad swath of the market. In theory, therefore, competitive markets provide a potentially strong counterweight to employer discrimination.

An alternative assumption is that discriminatory preferences come from customers. For example, suppose restaurant patrons prefer to be served by white waiters, meaning they are willing to pay a higher price even if the quality of service is the same. In this case, Miron notes, a higher wage for white waiters can persist in equilibrium, but even here there are economic pressures that counteract the discriminatory preferences of customers. For one thing, restaurant owners face higher costs than they would if they could use both white and black wait staff, so they might still use both if customer discrimination is weak. And since some customers presumably do not care, the benefits of accommodating the customers with discriminatory preferences are potentially small. The same logic, incidentally, applies to situations in which some whites prefer not to be served in an establishment that accommodates blacks. A priori reasoning thus indicates that economic forces are likely to hinder discrimination in the workplace. As an example, Miron cites Levine, Levkov, and Rubinstein (2008), who determine that increased competition resulting from deregulation in the banking industry from the mid-1970s to the mid-1990s reduced both the racial wage gap and racial segregation in the workplace, particularly in states with a comparatively high degree of racial prejudice.

That said, Miron explains that what is known as “statistical discrimination” in employment may be rational as a result of the correlation of unobservable factors, such as educational achievement and general competence in the workplace, with observable factors like race. If African Americans are disproportionately likely to be poor workers because they receive disproportionately poor educations, in other words, then it can be rational for employers to use race as a proxy for the less observable characteristics of intelligence and competence. The fact that statistical discrimination might be rational, as Miron points out, does not mean it is acceptable. But if statistical discrimination is the underlying cause of workplace discrimination, improving the quality of education offered to minorities is likely to be more effective than direct anti-discrimination policies à la the Civil Rights Act. Incidentally, Republicans have long advocated school choice through government vouchers to improve education within minority communities, an effort that has been blocked by teachers’ unions and their allies among congressional Democrats.

Assuming workplace discrimination is based on employer or consumer preferences rather than statistical correlation with unobservable traits, policy may undertake to counteract discrimination either by prohibiting it in hiring, promotion, firing, establishing wages, selecting customers to serve, and so forth, or, in the job market, by “affirmatively” promoting the hiring of targeted groups through quotas. The Civil Rights Act of 1964, among other things, ended racial discrimination in all federal government agencies and organizations receiving federal support, and prohibited discrimination in the private sector to the extent permitted under the Constitution. While the private sector provisions probably had some impact, Sam’s opinion that “Paul gets the Civil Rights Act completely wrong” because the “ban on private discrimination was absolutely central to its achievement” is hardly a matter of scholarly consensus. I couldn’t agree more, by the way, with Max Novendstern’s comment in his response to Sam’s post that the Civil Rights Act should be judged based on its “material consequences, not just (and not primarily) the soundness of its ethical claims.” Although black-white wage differentials have declined substantially over the past fifty years, Miron points out that the gap began declining before the federal government adopted anti-discrimination policies, and that there is little dispute that “forces other than anti-discrimination policy played a significant role in reducing race … wage differentials.” One plausible candidate that he mentions is increasing educational attainment by African Americans. In “Catching Up: Wages of Black Men” in The American Economic Review, Finis Welch notes that he and James P. Smith observed that although the relative wages of blacks increased in the decades after 1960, “there was little evidence of improvement within cohort”; the narrowing wage gap was in other words a result of younger African Americans receiving better wages rather than increased wages for blacks already in the workforce (Smith and Welch, 1977, 1984, 1989). Although there were clear employment shifts toward industries with concentrations of firms presumed to be more sensitive to affirmative-action pressures, the wage gains were “pervasive and not restricted to these industries.” For these reasons, Smith and Welch conclude that improvements in the quantity and quality of schooling were more important in decreasing workplace discrimination than federal legislation. Miron further points out that the Civil Rights Act was accompanied by Justice Department suits against Jim Crow laws (which, let’s not forget, were racist government interventions frequently opposed by profit-seeking private firms) as well as private actions including boycotts and protests in the South. So while some academics and policymakers contend that the Civil Rights Act was crucial to eliminating racism, others have argued that it was unnecessary, and, as Miron points out, “reasonable people can disagree.”

One might assume that the Civil Rights Act was justified if it succeeded even to a very minor degree in eradicating racism in the private sector. This is a legitimate position, to be sure, but the fundamental libertarian philosophy as articulated by Professor Miron, which Sam appears to overlook, is that while the free market often delivers imperfect outcomes, government intervention generally does more harm than good. It is therefore necessary to examine the potential costs of anti-discrimination policy, including those that may accrue to the very minority communities they are intended to help, before arriving at a final evaluation. For one thing, libertarians often contend that the distinction between merely banning employment discrimination on the one hand, and implementing racial quotas on the other, is not meaningful in practice, since without affirmative action there is no way to enforce fair hiring practices (employers, in other words, can always claim that whites are simply more qualified). And Miron explains that affirmative action entails potentially draconian costs, including perpetuated negative stereotypes of minority communities (i.e., the perception that minorities are unable to find employment without the government’s help), resentment among non-minorities (i.e., whites who feel cheated out of positions for which they are more qualified), reduced educational attainment and effort within minority communities (i.e., reduced incentive for minority communities to improve themselves if the government guarantees them a certain number of jobs), and reduced efficiency (i.e., firms cannot hire the most qualified employees). But Miron explains that even anti-discrimination measures by themselves might do more harm than good. If an employer knows he might get penalized for firing, or not promoting, or not giving a raise to a minority employee, it might make sense to avoid hiring members of the protected group in the first place. One prominent example of this is the Americans with Disabilities Act (ADA) of 1990, which requires employers to accommodate disabled workers and outlaws discrimination against the disabled in hiring, firing, and pay. Acemoglu and Angrist (2001) observe a sharp drop in the employment of disabled workers after the ADA went into effect, and ironically isolate the ADA itself as the likely cause. Sam’s libertarian straw man advocates the right to do “whatever you want with what’s yours,” even if it means “perpetuating a system of race-based subordination.” While it would be difficult to oppose a government effort to eradicate discrimination that reliably produced results in excess of its costs, Miron points out that policy cannot ban discrimination without endorsing the view that firms are partially “public” and can be told to operate in “socially” approved ways. Even if this does more good than harm in the context of discrimination, he says, blurring the private/public distinction might legitimize ill-advised government intervention in other areas. All this is to say nothing of the deadweight loss from taxation needed to fund the personnel who enforce the laws. So the notion that anti-discrimination legislation in general, and the Civil Rights Act in particular, is an unequivocal good is far from accurate.

For pro-life libertarians like Rand Paul, the cost-benefit equation with respect to abortion is substantially different. Abortion restrictions, like anti-discrimination laws, undoubtedly entail costs. The difference is that pro-lifers equate the termination of unwanted pregnancies (at least those that do not result from rape or incest and do not threaten the mother’s life) with murder. Prohibiting abortion is therefore an attempt to prevent the needless slaughter of innocent human life, which, unlike ensuring equal employment opportunities for every citizen, is justified at virtually any cost. In the most recent issue of the Harvard Salient, Roger G. Waite notes that the United States has the highest abortion rate in the developed world, as well as a legal system extremely permissive of abortion. This does not imply causation, but it’s difficult to imagine that laws against abortion would increase the number of abortions, or that our high abortion rate results from Americans’ moral depravity (or, as Mr. Waite posits, the structure of our health care system). A true libertarian who opposes the Civil Rights Act and supports anti-abortion laws, therefore, is not being inconsistent, but making a rational cost-benefit analysis of government intervention in two distinct cases.

Sam ends his post by invoking the questions Ezra Klein poses to Mr. Paul as to whether the federal government can set the private sector’s minimum wage, tell private businesses not to hire illegal immigrants, tell oil companies what safety systems to build into an offshore drilling platform, tell toy companies to test for lead, or tell liquor stores not to sell to minors. I’ll spare you the explanations, but I can assure you that what Sam calls “consistent libertarians” can indeed oppose each of these forms of intervention, or oppose some and not others, according to a rational cost-benefit analysis. Sam and Mr. Klein might reach different conclusions, but this does not imply that libertarians or Mr. Paul are “willfully blind and insensitive to racism.”

None of this is to say that I endorse or condemn either anti-discrimination policies or the libertarian response thereto. The point is that it is entirely possible for Rand Paul to be a consistent libertarian, and not to be a racist, while both opposing the Civil Rights Act and supporting legal restrictions on abortion. Perhaps Mr. Paul is racist, but not by virtue of anything he has said about the Civil Rights Act. It is important to hold politicians accountable on an issue as fundamental as race, and I do not fault Sam for raising this accusation given Mr. Paul’s opposition to landmark civil rights legislation. I would advise Sam, however, that a valid charge of racism must withstand the strictest of scrutiny. This one does not.

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INTERVIEWER: Would you have voted for the Civil Rights Act of 1964?

PAUL: I like the Civil Rights Act in the sense that it ended discrimination in all public domains, and I’m all in favor of that.

INTERVIEWER: But?

PAUL: You had to ask me the “but.” I don’t like the idea of telling private business owners—I abhor racism. I think it’s a bad business decision to exclude anybody from your restaurant—but, at the same time, I do believe in private ownership. But I absolutely think there should be no discrimination in anything that gets any public funding, and that’s most of what I think the Civil Rights Act was about in my mind.

I’m glad Paul is honest, and I’m glad he’s more consistent in his libertarianism than most are. What he doesn’t seem to realize is that this is exactly why sensible people aren’t libertarians, and why most libertarians aren’t consistent. Libertarianism means, at bottom, doing whatever you want with what’s yours. If that means perpetuating a system of race-based subordination, that’s fine. After all, don’t tread on me! Or, if you like, freedom for me, but not for thee. This is the reductio ad absurdum of libertarianism, but Paul doesn’t find it absurd at all.

Opposing racial hierarchy because “it’s a bad business decision” is incredibly weak. He couldn’t even say it’s unjust, because for libertarians, the only real injustice is when government interferes with private property. It’s not that Paul weighs two injustices (government interference versus racial discrimination) against each other. It’s that he only sees one injustice.

So I don’t agree with the commenter over at the Washington Monthly blog who says “it’s pretty clear he’s not a racist.” What we can tell about Paul from these comments is that he’s definitely not a non-racist. A non-racist would not say “it’s a bad business decision.” A non-racist would not be against government interference with racial discrimination, but for government interference with a woman’s reproductive choices. If he were a truly consistent libertarian on all counts, then maybe I’d grant that he’s probably not a racist, just willfully blind and insensitive to racism.

But since he picks and chooses which libertarian positions to take, and since he picks the one that opposes the ban on racial discrimination, I’m going to say, yup, he’s probably a racist. I know people get incredibly sensitive about using the R-word, and I’ll probably catch hell for this. But if we can’t say it’s racist to oppose the de-institutionalization of racism, then we’re pretty much saying that you’re only racist if you wear a white hood.

Paul also gets the Civil Rights Act completely wrong, by the way. The ban on private discrimination was absolutely central to its achievement.

UPDATE:

I’ve been thinking all day about whether I really should have called Rand Paul’s opposition to the Civil Rights Act racist. Ezra Klein has a post that helps clarify my thoughts:

Can the federal government set the private sector’s minimum wage? Can it tell private businesses not to hire illegal immigrants? Can it tell oil companies what safety systems to build into an offshore drilling platform? Can it tell toy companies to test for lead? Can it tell liquor stores not to sell to minors? These are the sort of questions that Paul needs to be asked now, because the issue is not “area politician believes kooky but harmless thing.” It’s “area politician espouses extremist philosophy on issue he will be voting on constantly.”

The reason I am comfortable making an admittedly harsh judgment about Paul is that, unlike Mark Kleiman, I doubt he’s a “completely consistent libertarian.” I suspect, for instance, that he thinks the federal government’s age limit on alcohol purchases is perfectly fine. Very few people are so libertarian that they really can’t think of anything bad enough for the federal government to regulate. If I had reason to think that Rand Paul was one of these very few absolutely consistent libertarians, then I would say, yes, he’s just a libertarian, not a racist. (Notice that this position might actually be more crazy than the alternative.) But because Paul’s position is probably more like, alcohol bad enough to be regulated, but racial discrimination not bad enough, then I think it’s perfectly reasonable to wonder what kind of person thinks that racial discrimination isn’t all that bad. What kind of person thinks that way? Fill in the blank yourself.

It’s also worth remembering that his campaign spokesman resigned last year for having undeniably racist messages on his Myspace page. And that his dad has a pretty despicable history of bigotry and racial fear-mongering. Circumstantial evidence, to be sure, but come on, Ockham’s Razor, people.

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“In the older and better times of the Senate, it was supposed that the representatives of sovereign states … would restrain themselves from the excessive use of irrelevant talking.” Speaking over 150 years ago, Senator Willie Mangum of North Carolina deplored what he saw as the shameful use of obstructionist tactics in the U.S. Senate. Recently, the frustration caused by the filibuster has grown dramatically, and today, we face a Senate that is paralyzed by gridlock as members of the Republican minority have fallen into the habit of filibustering, or threatening to filibuster, on nearly every major issue. The idea that every bill needs 60 votes has become commonplace. But a look at history reveals that the filibuster is simply a quirky tradition that evolved over time, not a fundamental principle of congressional procedure. Still, though the call for reform has been forceful, the “irrelevant talking” is probably here to stay.

EVOLUTION OF THE FILIBUSTER

Though the founders intended for the Senate to be a bastion of free debate, the filibuster was never part of the body’s original design. The quality and length of debate in the Senate was meant to come as a result of its small size and senators’ relatively long terms. In an interview with the HPR, Columbia professor of political science Gregory Wawro clarified that “there is not clear guidance from the Framers on this. The Framers thought the Senate was meant to be a check on the democratic whims of the House. If the Senate worked exactly as the House, [that would] run contrary to Framers’ vision.” In short, the Framers never suggested we should have a filibuster rule, but they also never said we couldn’t have one.

The filibuster evolved piecemeal over many years. In an interview with the HPR, UC Berkeley professor Eric Schickler said, “[The filibuster] was not designed intentionally. It developed over time in part due to the absence of rules.” The filibuster can trace its heritage to 1806, when the Senate got rid of an obscure rule that would have helped the majority party retain greater control over the legislative process. Without this rule, the Senate never achieved a means to end debate, and over time, this tradition evolved into a right of free speech for every member of the Senate.

In the early 19^th century, the small size of the Senate and its limited agenda made drawn-out debate pointless, but gradually the use of the filibuster expanded as a tactic for minorities to slow things down. A cloture rule, setting a certain number of senators that could override a filibuster, was only adopted after an 11-senator filibuster in 1917 put the kibosh on a popular bill to arm the U.S. Merchant Marine during WWI. Under the new rule, the Senate could cut off debate on a bill with the permission of two-thirds of its members, and in 1975, this was reduced to its current three-fifths.

THE FILIBUSTER TODAY

Thus, the filibuster itself is not new, but it has certainly become more widely used in recent years, and experts identify several factors that have contributed to this phenomenon. First, as the Senate’s workload has increased, the filibuster has become more effective. The majority can no longer afford to wait for long periods of time to pass key legislation, as was the case in 1964 when the Civil Rights Act was held up for months. Second, as Professor Sarah Binder of George Washington University told the HPR, the “ideological polarization of the two parties [means] not a lot of overlap in terms of policy proposals.” The two parties have little common ground on which to compromise, and this makes the filibuster a more attractive alternative. Third, the stigma that used to be associated with the filibuster has dissipated. According to Schickler, “People didn’t used to want to admit that they were filibustering. [Today] the idea of self-restraint, not making full use of your prerogatives, has faded away.” Indeed, many senators face the threat of primary challenges if they shy away from filibustering on those issues most important to their base constituents.

Perhaps the most important consequence of the increased use of the filibuster is that it allows both parties to “obscure accountability,” as Professor Steven Smith of Washington University in St. Louis told the HPR. It’s possible, Smith explained, for the minority to blame gridlock on the radical, partisan tendencies of the majority, while the majority, in turn, can accuse the minority of being deliberately obstructionist. For the public, then, it is difficult to see who is really at fault. In any case, if the minority can prevent the majority from achieving legislative successes, then the majority is vulnerable to accusations of incompetence and weakness, and will likely lose big in upcoming elections. Binder suggested that “cloture votes become rallying cries for parties and are treated like party tests.” In this way, the Senate has become more polarized, leading to a decline in bipartisan collegiality among members. And the polarization is self-fulfilling: both parties, when in the minority, have immediate incentives to continue with scorched-earth politics and forestall any achievements by the majority.

AVENUES OF REFORM

Despite these concerns about the abuse of the filibuster, serious reform is likely a non-starter. The main reason is simply that the Senate requires a two-thirds majority to alter its rules, an unrealistic goal for reformers considering how difficult it has become to muster the requisite three-fifths to invoke cloture. To circumvent this, some are proposing a return to the days when filibustering senators were forced to actually stand on the Senate floor and debate (or read from the phone book) for hours on end. Wawro addressed this proposal bluntly: “[It] is a ridiculous idea and ignorant of the historical development of the filibuster. Being a Senator is more than a full time job. They have far more on their plates than former Senators did.” Another possibility is the so-called “nuclear option,” in which the Senate’s presiding officer (the vice president, for instance) would nullify the rules that support the filibuster. This maneuver would require only a simple majority’s approval, but such a heavy-handed tactic may be labeled undemocratic or overly antagonistic. As Smith said, “The minority still has the opportunity to make trouble for [the majority],” and one would expect even more intense obstruction, lasting for months or years, should the nuclear option be employed. In short, full-scale reform is simply not politically feasible at this point.

Moving forward, then, the first step is to recognize the filibuster for what it is: an accident of history. It has a long and interesting past, but the founders never intended for a senator to hold up the business of the U.S. government simply because he or she can. Unfortunately, the filibuster has become so entrenched that it will require changes of heart by individual minority senators in order to effectively change the rules of the Senate.

Colin Shannon ’11 is a Staff Writer.

Photo Credit: Donkey Hotey (Flickr)

Jay Cost has a passionate response to recent liberal criticisms of the filibuster. In his view, it’s a good thing to pass legislation that has broad (and perhaps bipartisan) support, rather than to pass legislation with increasingly partisan “simple majorities.” But there are several little problems with Cost’s argument that need to be pointed out, and I think they add up.

First, perhaps it’s true, as Cost argues, that ideological polarization has led to the increased use of the filibuster, but it is also possible that the existence of the filibuster has enabled ideological polarization, creating a vicious cycle. Senate leaders on both sides have discovered, to put it crudely, that they don’t need to win elections in order to win legislative battles. As long as they man the barricades to preserve 40 safe seats, they can achieve a lot — or, what is the same, prevent the other party from achieving a lot. And those 40 seats, sought for their safeness, are likely to be filled by very partisan, ideological senators.

Second, I’m unconvinced that the filibuster has really led to “moderate policies,” instead of just nonsensical ones. I don’t really understand Cost’s position on this issue: he admits that he finds the compromised Senate health care bill “highly objectionable,” but implies that it’s better than what we would have gotten if the Dems only needed 50 votes. I think that this assumption is quite wrong, and wrong not just from my own liberal perspective but from a “moderate” perspective as well. Sure, you would have gotten a public option if there had been no filibuster. But you might also have gotten more serious attempts at cost-cutting: tough choices of the sort that serious moderates like Cost and Ross Douthat desire, but which stand no chance in the polarized, minority-rule Senate. You would also have avoided the sweetheart deals to “centrist” senators that Republicans have spent the last week decrying.

See, if you have liberal senators cutting deals with center-right senators, or conservative senators cutting deals with center-left senators, what you are likely to get is not moderate legislation — precisely because the parties have become so polarized, and their most extreme members, their Boxer and their DeMints, also have effective veto power. Rather, you will either get the same old “partisan” legislation but with sweetheart deals to bring the centrists on board, or you will get watered-down legislation, catering to the centrists’ overwhelming imperative to extract their pound of flesh from all legislation no matter the policy implications. In the case of the stimulus and health care reform, half a loaf was/is better than no loaf, but that will not always be the case (consider cap-and-trade, for instance). Sometimes a bill that can attract Boxer and Franken, as well as Nelson and Landrieu, just won’t make sense. Ditto if you replace the first two with DeMint and Inhofe.

Third, I just don’t find Cost’s concern about violent policy swings all that convincing. The fact is, if we got rid of the filibuster, it would still take a lot of work, and a lot of electoral success, to swing policy sharply in one direction or the other. Imagine that the Democrats had only 53 seats at the moment, and there was no filibuster, and they passed “extreme” liberal health care legislation. Now imagine that the Republicans win five seats in 2010, take the Senate, and pass narrow, partisan bills to repeal health care reform and privatize Medicare. You’d still have to assume that the House has changed parties too, because Nancy Pelosi’s majority, even if neutered, would never consent to those bills. And you’d never get those bills past the desk of President Obama. So, the extreme changes would have to wait at least until 2012, and we’d have to assume the (I think unlikely) defeat of President Obama. (And all this without considering political culture and the likelihood that many laws, once passed, are not so easily repealed.)

In other words, what Cost forgets is that bills have to get by three different institutional sets of eyes, a fact which, on its own, limits the amount of legislation and, yes, ensur

es consensus. The people decided, over the course of two biennial elections, to put Democrats in charge of the entire federal government. That’s a consensus! Cost’s persistent reference to a “bare majority” passing legislation overlooks the fact that you need a bare majority in effectively three legislative bodies (the executive branch included) and that, per the founders’ wisdom, the members of these bodies have different constituencies, and are elected in different ways and at different times. There are a lot of checks on the passions of bare majorities in the American system. Cost’s fallacy, in understandably pointing to Federalist #10, is that he suggests that because some checks were desired, all checks must be justified. But

we can require varying degrees of political consensus; we don’t have to choose between government-by-filibuster and government-by-faction. By any measure, even without the filibuster, our system would require a substantial degree of consensus. But the filibuster goes too far.

One last thing. Cost argues that the filibuster doesn’t prevent change, it just makes it less likely. He says, if your party has only 55 senators, and can’t get anything done, you can always try to enlarge your majority in the next election. But voters punish ineffectiveness, and they are not likely to be favorably disposed to cries from the majority party that they couldn’t get anything done because of dastardly filibusterers. Yes, the argument could work in extre

me circumstances, but the most likely outcome is that the minority party says “you gave them a chance, and they couldn’t handle it” and that the voters buy that. In other words, the filibuster not only allows the minority party to stop legislation, but (and it should be obvious that this follows) to politically hurt the majority in doing so. You can see this on a small scale in the recent furor over Ben Nelson’s sweetheart deal: the deal would never have been needed without the filibuster, or without the Republican threat to use it, but instead of blaming the institution or the Republicans, people are (predictably enough) blaming Nelson and the Democrats. So, I think Cost overestimates the likelihood that “they’re filibustering for

political reasons” will be a winning electoral argument, and so the filibuster might not just make legislative change less likely, but make it impossible for a long time. Is there any doubt that health care reform wouldn’t happen in 2011 if it doesn’t happen in 2009?

]]> http://hpronline.org/last-decade/no-seriously-get-rid-of-the-filibuster-2/feed/ 0 http://hpronline.org/uncategorized/civil-rights-in-the-courts/ http://hpronline.org/uncategorized/civil-rights-in-the-courts/#comments Wed, 30 Nov -0001 00:00:00 +0000 Ian Merrifield A changing legal landscape

In American history civil rights issues have often found their footing in the high courts. Decisions such as the recent Supreme Judicial Court of Massachusetts’ ruling legalizing same-sex marriage in Goodrige v. Department of Public Health exemplify the courts’ ability to swiftly expand civil rights. However Proposition 8 in California, which amended the state’s constitution to outlaw same-sex marriage in response to a California Supreme Court decision to permit them, narrowly passed in November and circumvented the Court’s ruling in an unprecedented fashion. Similar propositions in other states, while not directly overturning pre-existing court rulings, have preemptively blocked judicial attempts to defend civil rights by amending state constitutions. Yet this trend does not mean civil rights issues are about to lose the courts as a defender. Instead, while civil rights struggles are undoubtedly expanding beyond the judicial system, the courts will continue to play an important role in their resolution.

The Historical Place of Civil Rights

What accounts for the courts’ frequent intervention in civil rights disputes? Alan Dershowitz, professor at Harvard Law School, told the HPR that modern civil rights decisions have their roots in the progressivism of the Warren Court of the 1950s and ‘60s and the conservatism of Congress in that era. According to Dershowitz, American legal history has seen “pendulum swings” in the ideologies of high courts and the legislature. During the Warren Court, civil rights advocates realized they had openings for success in the courts that were not available in Congress. Once a judicial pathway to progressive civil rights rulings was established, pro-choice activists looked towards the courts in Roe v. Wade and found similar success. Thus civil rights activists, having succeeded in the courts, continued to advocate there.

This is not to suggest that the courts hold a monopoly over civil rights. In an interview with the HPR, Tim McCarthy, lecturer at the Kennedy School of Government and member of Barack Obama’s LGBT Leadership Council, claimed that successful civil rights movements require three conditions: a widespread, cohesive popular insurgency, political allies who are willing to embrace what the insurgency is advocating for, and support from high courts. “Even Thurgood Marshall understood that the movement to bring Brown v. Board of Education to the Supreme Court was only one part of the equation,” noted McCarthy.

Future of Civil Rights in the Courts

In light of Proposition 8 in California and other similar amendments to state constitutions, it seems courts are beginning to lose sway to popular insurgencies and political allies. Dershowitz believes that courts are becoming a lesser part of the civil rights equation, continuing to say that the “trend will continue.” He explained that both sides of any civil rights issue will advocate in whichever arena best suits their goals, be it the courts or popular movements and propositions. Proposition 8 proved that opponents of court rulings can circumvent the decisions, meaning civil rights struggles must also be fought amongst the populace. This is a “mixed blessing” according to Dershowitz, because while it may delay the legal action for which civil rights activists are searching, it necessitates that they build popular support. “Civil rights advocates have relied too heavily on the courts,” noted Dershowitz, explaining that after Roe v. Wade, pro-life groups began galvanizing popular support while the pro-choice movement became largely superfluous. If a civil rights movement succeeds outside of the courts, then it will have done so by gaining widespread popular support, which in this new environment is likely a more lasting benefit than a court decision the public is not fully behind.

Civil rights issues will never completely leave the courts; instead the battlefield has simply expanded. McCarthy said “it is important to keep these issues in the courts,” pointing out that there is still an intense and ongoing legal struggle against Proposition 8 in California, including a series of cases, modeled after Brown v. Board, to eventually bring to the Supreme Court. Yet the efforts of same-sex marriage supporters will need to go beyond just court cases, embracing a more expansive arena that includes popular opinion and political allies. While the courts will no longer always have the final say on civil rights issues, they will continue to play a vital role.