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Sunday, February 14, 2010

Filibuster thoughts

This article sparked a few thoughts...
Republican strategy: Filibuster everything, win in November
Since Barack Obama became president nearly 13 months ago, Republicans have made it clear that 60 votes - the number needed to cut off debate in the 100-member Senate - are required to pass not only major Democratic programs, but also many routine proposals.
"Republicans have ratcheted use of the filibuster up to completely unheard of levels. Look at the things that the House (of Representatives) has passed that can't make it through the Senate. The list just keeps growing," said Norman Ornstein, an expert on Congress at the American Enterprise Institute, a center-right policy organization.
Obviously, the filibuster should be done away with. The founders did not intend for the Senate to act in this way: The filibuster was always a constitutional loophole -- a bug, not a feature.

Just as obviously, asking Democrats to get rid of the filibuster is asking them to divest themselves of the primary weapon they will hold when-or-if they lose one or both houses in 2010. I admit that giving unbridled power to the new Republican majority will be disastrous: The GOP will not allow any further investment in jobs creation, the only thing which can save this economy.

Nevertheless, I would argue that now is the time to change the rules on filibusters.

Why? First, because the 60 vote majority requirement sucks. Second, the Republicans have signaled that they will do away with the filibuster when they get back into power -- see, for example, here. So it makes no sense to refrain from taking that step now.

The Democrats need to do something dramatic to win back the faith of alienated liberals (such as myself) and to convince the independents that Dems possess vertebrae. They need to engage in a bit of political theater. Boys and girls, let's put on a show.

Force the filibuster issue now. Allow the Senate to operate with a simple majority. Then pass some popular -- populist -- measures in the summer and fall of 2010.

I see no other way to stave off (or at least to ameliorate) disaster.

How to bell the cat? Here's the part that no-one seems to understand, even though I've made the point on several previous occasions. (No-one has ever corrected me.)

Remember, the entire point of a filibuster is to make life miserable for the opposing party. Sure, the person doing the actual filibuster must talk non-stop under physically challenging circumstances. We've all seen Mr. Smith Goes to Washington. But in order to keep the show going, a quorum must be present, which means that all members of the opposing party have to stay in the room, or at least nearby.

Of course, those guys can be more comfy. They don't have to stand up. They can bring in cots. They can eat and drink. They can set up laptops with internet connections and play Farmville.

Harry Reid can force the Dems to to stay in the building by force of arms. Yes, he has that authority.

Once a filibuster has started, the rules governing how the Senate operates can be changed easily.

Unfortunately, both the pundits and the senators themselves seem unaware of the actual wording of the Senate rules. I've posted the relevant section before. The subject here is cloture:
...he [the Senate Majority Leader] shall lay the motion before the Senate and direct that the clerk call the roll, and upon the ascertainment that a quorum is present, the Presiding Officer shall, without debate, submit to the Senate by a yea-and-nay vote the question:

"Is it the sense of the Senate that the debate shall be brought to a close?" And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn -- except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting -- then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of.
Read the words in boldface again and again until the implications sink in.

To change the rules, you don't need two-thirds of all Senators. You need only two-thirds of the Senators present. That's a key difference.

As I said, the whole point of a filibuster by a Republican is to force all the Democratic senators to stay in the damned room. But the Republicans will be free to go. And they will. That means most of the people in the room will be Democrats.

They can vote to change the Senate rules. That means that they can end the entire concept of the filibuster in governance.

Previously, I've said that I wanted to see a filibuster, a real filibuster, on health care. I did not like the reform package, but I did want to see the Senate rules changed. Besides, if the 60 vote requirement were reduced to 50 votes, we might be able to get a more acceptable health care bill passed.

But now I am thinking differently.

Since the Republicans are threatening a filibuster on everything, even the most minor piece of legislation or appointment, I say that the time has come to make them bet all their chips or fold. Make them bet on a pair of dueces. Make them mount an actual filibuster on something small, foolish and low.

Doing so will demonstrate to the nation that Republicans -- not Democrats -- are being obstreperous.The world will see that the Republicans place partisan advantage over good governance.

Hell, let's make the scenario even sweeter: Do it more than once. Here's the process which I envision:

1. First, make the Republicans filibuster some minor appointment.

2. After a sleepless night, the Dems fold. Senators go home, allowing the filibuster to end because no quorum is present.

3. Will the Republicans be able to spin that to their advantage? Sure. They will pretend, in the media, that they were fighting for a matter of important principle. The Dems must be ready with a counter-message: The Republicans were fighting just to be partisan.

4. Repeat steps 1 through 3 the very next week, and perhaps the week after that. Make sure that the issues under debate are absurdly trivial. Force the Republicans to play "Mr. Smith" over some matter that no-one really gives a damn about.

5. Win the media wars. Make sure that the public sees Republican obstructionism for what it is.

5. On the final iteration, choose a particularly inane issue. The Republicans will be cocky. That has always been their downfall: Arrogance. But on the final go-round, wait until the Republicans have left the room -- and then change the rules.

No more filibuster.

If the change is made at a suitably dramatic moment, the Dems will look like sensible leaders while the Republicans will look (even to many other Republicans) like assholes.
I agree - let filibusters take place and show the voters the problem - but, instead, the Dems fold their tent and only talk about how they can't beat the nasty filibuster.

Hell, I'd love to see filibusters going on with regard to everything right now - because at least I might feel the Dems were TRYING to do something.

I guess they're worried it will reduce their beauty sleep - which, the last time I looked - they all need tons of every day.
My-oh-my Joe...

Listen to yourself:

Don't like what's happening? Then change the rules.

That's not the way it's supposed to work...
Joe you make the assumption that the Obamacrats want to govern, to pass legislation, rather than to collect a pay check.
If their objective is to keep getting elected and adding to that swell pension they get when they leave Washington for good, why should they rock the boat with something this daring?
We all wish they would go Animal House on the republicans but it ain't going to happen.

I'm waiting for the gimmie letters to come from the Democrat party so I can do a youtube video of them going into my paper shredder. I'm trying to think up a name to past on the shredder, like "The Grindng Machine of Cowardly Politicians" or like that.
Why do you assume they WANT to beat a filibuster?

It's kabuki.
The filibuster is used by both sides as an excuse to kill anything that requires them to stick their neck out. It really does goes both ways. My concern is that if the rule goes the Republicans can accuse Democrats of changing rules whenever they cannot get their way within longstanding rules and precedent. This president has a history of doing just that. Striking names from voter petitions last minute, opening closed divorce court records of opponents, and rigging party primary rules to get votes ignored or discounted. Are Republicans SOBs? Absolutely, but changing rules mid game does not strike most as cricket. The R's can accuse them of rigging the game and it will stick. I am not sure they can pass anything that will please the public at this point.

Bob, the filibuster is not "the rules." It's a loophole in the rules. Always has been. The founders would have closed that loophole if they were aware of it.

The only thing that kept the filibuster tolerable heretofore was its rarity. The filibuster was used primarily by racist southern Dems to block civil rights legislation. That fact gave the filibuster "cooties" for a generation.

This 60-vote majority nonsense is recent.
Mike and myiq: You are missing the key point. The Dems are going to have to do SOMETHING dramatic, or they will be gone.

It's fight-or-flight, and there's no place to flee except into oblivion. Even a docile animal will surprise you when cornered.
I would argue that it's akin to a herd of Wildebeests being savaged by a pack of Hyenas, some on the fringes will fall but most will survive.
Nancy might have to resort to commercial air travel but of her and others in blue districts are like the animals in the center of the herd, safe.
True the herd could turn on the pack of hyenas but that would require some one to lead that attack and be devoured. I can't see Nancy, Harry or even Barack do that.
Sad to say but I think even John Kerry's valor went over the White House fence with his medals.
Your strategy assumes a Senate Majority Leader who possesses a set of balls. As Harry Reid has demonstrated over and over and over again - he is a steer.
One only needs to look at how the two parties govern to understand that what is going on in the senate is all kabuki theater. Changing the rules might force the senators to govern, and no senator wants that because their job, as they see it, is to get reelected. I'm just tired of the drama. Let's cut to the chase and give corporations what they want. Reelections depend on that. The GOP makes no bones as to who the master is, while the Democrats want people to believe that they are the party of FDR, but both are eating from the troughs of the same masters.
Yes, Joseph, the "60 vote nonsense is recent". Up until 1975, it took a 2/3 vote for cloture.

If the Dems were really interested in accomplishing anything (and myiq is right, they're not), they'd just let the Republicans talk themselves out. Strom Thurmond broke the record by speaking for over 24 hours against the Civil Rights Bill of 1957, but it passed *anyway*.

If Reid really wanted to accomplish anything and if he had any guts at all, he'd call their bluff and *let* them paralyze the Senate, complete with 24-hour coverage on C-Span.

Government is not for wimps.
Sextus, I was around and paying attention in 1975 and before. Believe me, lots and lots of laws got passed without having 2/3 of the senate on board.
" Believe me, lots and lots of laws got passed without having 2/3 of the senate on board."

That's precisely my point, Joe. An awful lot of legislation has been passed in spite of filibusters (including vivil rights legislation, and the US entry into WW I). It's just an excuse by corrupt, weak-willed Dems who don't really want to pass any legislation anyway.

If LBJ or Mike Mansfield were running the Senate, nobody would be trembling at the thought of a Republican filibuster - they'd lock the doors, let the bastards talk themselves to death, and pass some bills in spite of them.

The filibuster goes back to Cato - if it were really the ultimate legislative weapon nothing would ever pass.

Oh, and I'm older than you are.
Sextus, no. There was no "in spite of filibusters." There were no filibusters. (Or almost none.) After the Civil Rights debate, the very idea of a filibuster was smelly.

Also, Republicans did not want their own ability to pass legislation diminished. So they did not use a weapon against the Dems that the Dems could just as easily have turned around against them.

Now, the Republicans don't want government to do ANYTHING. So things are different.
Things are different ... but Democrats are still cowards.
Joe, cloture didn't even exist until 1917. Filibusters fail as often as they succeed. Let the Republicans paralyze the government if they want to. I'm serious about this. When the mail stops arriving, tax refunds aren't deposited, defense contractors stop receiving contract payments, imports are frozen because there aren't any customs officers on duty, airplanes stop flying because the FAA has gone home, and the Republicans are still reading from the Manhattan phone directory on C-Span, we'll see who wins in November.
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Democrats didn't have the guts to use the filibuster when they were in the minority.

It's gotta go.

Carolyn Kay
Force the Republicans to play "Mr. Smith" over some matter that no-one really gives a damn about...
Win the media wars....On the final iteration, choose a particularly inane issue....

Do big US media companies want the filibuster to stay or do they not? After all, they will have the final say on how any reformist action by Democrats will be portrayed. And it seems to me that big US news media organizations are somewhat experienced at convincing Americans that trivial issues should matter.

I suspect big media companies have probably concluded that they are well served by the present arrangement, and would have no interest in a more democratic Senate.
The problem is not that the Democrats lack will or courage.

They lack DESIRE.

If Bush ever had a 60-seat super-majority in the Senate we'd all be speaking Republican now.

Failure was the plan from the beginning.
"The problem is not that the Democrats lack will or courage.

They lack DESIRE."

You're right, of course - sometimes it's difficult, after a lifetime of checking the "D", to realize what a thoroughly impotent bunch the Dems have become.

They couldn't pass gas with a 99 vote majority.
what a thoroughly impotent bunch the Dems have become

Not impotent - corrupt. It was a Democratic Congress that passed the pork-heavy stimulus, the FISA revision and the Wall Street bailout (the Republicans opposed the stimulus and the House GOP opposed the bailout)

The Democrats didn't just pass those bills, they ignored public opinion and steamrollered all opposition.
Hold on thar, myiq. I favored that stimulus. I favored and favor a much larger stimulus. I do not favor pork, but I do understand that any stim bill will be accused of pork.

What bugged me was all the Bush-era pork, because -- we Keynes-friendly writers have to keep saying this and saying this -- you run up a debt during harsh times and you PAY IT BACK during normal times.
Hold on thar, myiq. I favored that stimulus.

I favored a stimulus too, but that one wasn't what it should have been.

My point is that the Democrats in Congress can pass bills when they want to.
It isn't changing the rules, or at least, it isn't only changing the rules. Because THEY have changed the rules, of how this thing has worked historically.

It is this abuse of the rule, wherein possibly more cloture votes were required this past year than the totality of all Congresses EVER, that is the predicate of suggesting changing it.

I think the compromise suggestion of Senate Majority Whip Dick Durbin has merit.

He advocates a sliding scale. Assuming the filibuster has a legitimate purpose (in arguendo), that purpose is not actually to permanently bar the legislation in question, but to prevent it precipitously being brought to a vote (and rammed through) by a capricious majority without adequate raising of counter-arguments, the allowing of improving amendments, and the like, so as to influence public opinion and thereby Senate action.

As the Senate's function is to provide a backstop against the purely majority-rule House procedures, among its deliberate features is, in fact, delay. Having additional delay is not exactly the end of the world, and may be a salutary process.

The problem here is that the arguably reasonable process allowing DELAY has devolved to a schematic shell of itself to allow permanent results against bills that would otherwise pass by significant majority (just not by 60).

So Durbin suggests that the 60 threshhold to invoke cloture and end a filibuster remain as it is now, but for a strictly limited period of time. (Forget, but you can look it up-- let's say 10 days.) Once THAT delay period of time has passed, the NEW lowered threshhold to invoke cloture would drop to 57 or 55 or something, and consecutively after periodic passage of time, by several lowered steps, after perhaps a month of filibuster delay, the threshhold would become 51 votes (i.e., majority rule, same as what is required to pass the thing).

I found his formulation confusing until I considered what argument there could be for the filibuster, which I describe above. Given some genuine purpose for this rule, which is delay before wrong decisions are slammed through the Senate by an oppressive majority party so that it can be addressed, Durbin's proposed changes ALLOW such delay, but strictly limit it so that it isn't an impenetrable block veto available to an oppressive minority party.

I recommend this plan to everyone's consideration.

NOTE: Joe's plan to have a minimalist quorum present to change the Senate rules by 2/3rds would be required to do something like this, most likely. Since 51 Senators make up a quorum, you'd need 34 votes to do it with the minimal quorum.

Joe I like your scheme. And yes everyone is right about the Dems-- they are a bunch of lily livered yellow bellies who sole concern appears to be their own arses. But the GOPers are worse-- they think God is on their side. I say if you want to fillibuster then you must talk, then we'll see how much an issue really means to the various pols.
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