And Obama's administration should call the Republican Senators on it, whenever he needs to.

Filibuster: not news.

President decrying Republicans for filibustering law that will help millions of Americans: reportable stuff.

Matt's objections notwithstanding, Josh is right about changing the rules. Let's not forget that just a few years ago we were the ones relying on the filibuster--not nearly as often as we were accused of doing so, but still, we needed it--and the GOP was threatening to "go nuclear." We've got a big majority now and it's nice, but we won't always.

Bush's presence may have been a reason for the GOP to filibuster, but it seems to me it's a much bigger reason for the Democrats not to bother trying to find ways around the filibuster. If Bush is going to veto it anyway, it's just not that important to make sure it passes the Senate. I'll be interested to see how things go in the next congress.

Obama has 2 ways to go: try to sweet talk a couple of Repubs to get over the 60 hump; the nuclear option. I predict that it will be option 1 short term. But if lots of stuff gets blocked, look to option 2.

I would also note that Democratic filibustering saved our asses a few times.

One last thing: why Reid has not forced Repubs to carry through on a filibuster is beyond me. I hope he gets some balls with the new Congress.

My view has been that the whole filibuster situation has been a complete political failure by the Democrats. When the Democrats were using the filibuster against Bush's judicial nominations, the Republicans raised a formidable political argument against it, pointing out its undemocratic character, that majority should rule, and demanding "up-or-down" votes on nominees. They largely succeeded.

It has been a great failure of the Democratic Senate not to have followed the same course.

It may be said in mitigation, of course, that the Democrats knew that even if they forced some measures through, they would be vetoed. But even so, the Democrats failures were surely short-sighted. In particular, they seem to have failed to perceive that in the next Congress there would in all likelihood be a President who would not veto these measures. It was the Democrats' job to make Republicans pay for being undemocratic and thwarting the majority, so that, when the veto threat went away, Republicans would be wary of wholesale use of the filibuster to frustrate reform.

Thus, the Democrats in the Senate have aided in setting Obama up for obstruction by a determined minorty. Citizens have not been taught, as they should have been over the last two years, that Republican filibusters are profoundly undemocratic. It will now take a while for people to understand this, and to see that the probable legislative failures are the fault of a small Republican minority, and not the Democratic party. This is unfortunately a bad moment for such lost time. It's bad for the Democrats and even worse for the country as a whole. Too bad the Senate Democrats weren't waging war against the filibuster for the last two years, so that its threat now would be diminished.

Soon to be President Obama has an opportunity to highlight the Republicans' obstructionism, every time they do any kind of 'congressional maneuvering'

Over a period of time Obama's administration and the Democrats in Congress, will be able to make the word filibuster as toxic as the Republicans made th word liberal

It wouldn't surprise me that the GOP will be able to accomplish that without any help from the 'normal' segment of the population.

Just imagine: the sound of Republican and filibuster and conservative and corruption giving the majority of people a nauseating feeling.

The Senate rules require 2/3 majority to pass a rule change. So what was the legal theory that would allow the nuclear option? Anyone?

Republicans held the key to the nuclear option---until they realized that they were about to risk handing that option over to a Dem-controlled Senate, at which point they wanted to "play nice"---and Dems agreed to surrender the option. But after two years of wall-to-wall obstructionism, it's time for Dems to rethink the philosophy of "nuke 'em 'til they glow."

By wiping out the GOP's one solid ability to infringe on national policy, a nuclear-armed Democratic majority could pass the kind of legislation needed to force ReThugs into a permanent minority, possibly fracturing it into three distinct fringe groups---fiscal conservatives, social conservatives, and the profit-uber-alles corporatists.

Just make them actually filibuster. None of the procedural crap. That will put a stop to it.

I think one of the things that should happen is to replace Reid who is has not fucking balls with a new leader that does ...........

Part of the reason for increased filibusters is that with the advent of the virtual filibuster, they're easier to do. I'd like to see a return to the days when a filibustering senator had to be on the Senate floor and talking. Maybe allow a dispensation at the beginning of each term for senators who are physically unable to do that.

The term "procedural filibuster" has been around for awhile, but it hasn't been particularly well-defined.

Can I propose a definition?

Specifically the following:

A procedural filibuster is the defeat of a cloture vote in an instance where the majority had the votes to win an up-or-down vote on the bill itself.

I'd propose this because the number of cloture votes, by itself, is a meaningless metric. Many cloture votes pass easily. Many other cloture votes fail in instances where the underlying bill didn't have the votes.

What we'd like to count are the times when a bill would have passed, if it hadn't been for the inability of the majority to get 60 votes for cloture.

So let's define procedural filibuster as that set of cases.

It has been a great failure of the Democratic Senate not to have followed the same course(calling filibusters unfair) David in NY

One of the advantages of Republicans owning the media, is they can do this. If the Dems did it, it would be ignored.

after a failed cloture vote that a bill "came up short in the Senate," not that a bill "was blocked from an up-or-down vote by Republican obstructionism." - S Benen

And here, when the Dems were the minority, they were described as the obstructors.

The Senate rules require 2/3 majority to pass a rule change. So what was the legal theory that would allow the nuclear option? Anyone?

I don't remember all the details, but it depended on a procedural ruling from the Vice President to allow the matter to be treated as the type of business that can be decided on a simple majority. That ruling would be untrue, but since Cheney was VP it wasn't considered an obstacle.

I agree with ninerDave, let them really filibuster.

It would be a beautiful thing for Obama to be able to say, we're trying to do America's work, but we have Rebuplican Senators that would rather read from the phone book in the halls of Congress.

Reid needs to grow some balls and call out these assholes.

Just make them actually filibuster. None of the procedural crap. That will put a stop to it.

I believe that the counter-argument to this is that all work in the Senate has to stop for this to be meaningful. If it doesn't then the filibuster just looks silly, as the time Reid held all night debate on something or other. And if all work does stop, other stuff doesn't get done and there's a danger the public will blame the Democrats for stopping business rather than the Republicans. (Newt Gingrich discovered this problem when he and his colleagues brought the government to a halt.) Really stopping everything might work if the matter were really important, say, the fiscal stimulus bill coming up, but it looks a bit much for some of the other bills.

But I don't know enough to say whether they could require debate to continue every morning until the Republicans give in, or something like that. Maybe there's some less problematic way.

Thanks, studebaker hawk. It sounds legally questionable, but as you say, Cheney was VP.

fred and ninerDave - go to the Nate Silver link and read the comment by EV at about 3PM. He explains the procedure (5th and 6th paragraph - it's a long comment), and it's not nearly as simple as telling them they have to talk all night.

Doing away with the filibuster would get us closer to tradition? Matt just has an agenda: one-hand-one-vote. He is also for doing away with the electoral college. Thinks this is democracy.

The original Senate deliberated in private and required 100% agreement. One lone jerk could stop anything.

You didn't need to look for allies to filibuster if you didn't like the deal, just vote no.

The reason we have a senate is to take into account the minority voice. The minority could be small states, southern states, democrats, republicans, whatever. If you don't agree with the structural basis of the senate, then say so, but don't hide behind majority rule (in the senate) as necessary to our democracy.

We have just experienced majority+1 political thinking for the last eight years, it doesn't work.

The minority could be small states, southern states, democrats, republicans, whatever. - tomj

This actually makes the issue more frustrating, however, since states with smaller populations are already over represented. It would be interesting to take the auto bailout cloture vote, for example, assign 50% of each state's population to it's Senator, and see just how small the minority is that represented the 34 no-votes cast (not counting Reid's).

but don't hide behind majority rule (in the senate) as necessary to our democracy

Sure it is, as the general rule. If the minority can routinely, and in recent days it's been really routinely, block legislation favored by a majority, often a sizable majority, of the population, then democratic government just doesn't work any more. At that point, democracy loses its legitimacy.

The arguement that a filibuster would shut down all Senate activity and make Dems look bad is weak. Fist and foremost history proves the exact opposite to be true.

The Democrats in congress faced down Bush I over tax increases. Allowed the entire government to be shut down and Bush LOST. The public sided with a strong willed Democratic congress that stood up for principle.

Clinton faced down Gingrich over of the budget, held strong allowed the government to be shut down again and WON. Gingrich backed down because again the public will back a strong Democrat that actually fights. That single move most likely saved Clinton's Presidency.

According to virtually every poll taken over the last decade American's, by a wide margin, support Democrat policies. They believe in a progressive agenda. What they do not believe in is Democrats. The actual standard bearers, who have shown absolutely no will to fight for those policies.

Now is the time for Democrats to be bold. To stand and FIGHT for once. The public will back them, they want this legislation to pass. Shut the government down. Make the Senate stay in session for month without break until in passes.

Like any bully (which is all the Republicans are at this point) a strong stand will force the Republicans to back down.

I agree with those who say we need to make them absolutely filibuster. True, it shuts down the Senate, but better that then have really good legislation die a premature death. Besides, we only need to make one high profile bill that the public wants the prime example and the public backlash will make them think twice next time around. Then all Dems have to do is threaten to make them actually filibuster. Call it the new nuclear option.

I'm with ninerdave. A President on the right side is capable of explaining the details so that the public understands what is really going on. Making the royalists actually filibuster (instead of withdrawing under a threat) would make news and draw attention to the obstructionism (remember Newt vs. Clinton?) and be golden in the '10 elections. It time to call the bluff. Remember that Obama wins at poker too.

I would be strongly disheartened if the Democrats proposed a 'nuclear option.' I was one of the loudest critics of the possibility of this during the 109th and would be so again if it were to come up.

The majority must be allowed to govern but not to the extreme detriment of the minority. I would agree that procedural filibusters should be done away with; if a Senator believes strongly enough in his/her cause then they should have to stand at the lectern and protest with their strongest weapons, the national stage they are on and their voices.

This being said, the court of public opinion and the bully pulpit should be used to highlight these instances, not allowing them to scurry about the halls of Congress like a plagued rat.

The public will view these instances of the filibuster and judge the Senators accordingly. Once the traditional filibuster is the only means of doing so, I think the filibuster will regain its strong and glorious history of being a tool that makes government work smarter and better as opposed to today where it is used to make government work in the shadows or not at all as it grinds to a halt.

One last thing: why Reid has not forced Repubs to carry through on a filibuster is beyond me.

Er, because Bush would have vetoed it anyway so there was no point in shutting down the Senate just so as to get bills not signed into law?

Matt just has an agenda: one-hand-one-vote. He is also for doing away with the electoral college. Thinks this is democracy.

I'm pretty sure this is more or less the definition of democracy.

For most of the Senate's history, a filibuster required real action: those wanting to stop a bill had to be prepared to get up and talk, talk, talk. This was a real obstacle to its use, meaning it was used only when the issue was extremely salient and the perceived benefits justified the cost.

But as a poster noted upthread, when a real filibuster is in progress, the work of the Senate grinds to a halt. This, in fact, was one of those "costs." A couple of years ago I read a bit about the history of the filibuster -- most of which I've now forgotten -- but I recall that going to the procedural form of the filibuster we now have (wherein the minority Party need merely say "we're filibustering" in order for it to be true) was an effort to prevent filibusters from interrupting the other work of the Senate.

Problem is, when that was done they didn't foresee the unintended consequences. They apparently THOUGHT that filibusters would continue to be rare. But the "reform" simply made using the filibuster cheap and easy, hence the skyrocketing number of filibusters. And I would ask: in the end, is the Senate getting any more work done thanks to this change?

After all, the majority party puts an enormous amount of work into drafting a bill, holding hearings, gathering testimony and expert opinion, horse-trading for votes, crafting compromises, etc. And then it's all shot down by the minority Party simply saying, "nyet."

So I agree with those upthread who keep saying, "Why doesn't Reid simply make the Republicans actually DO a real filibuster?" I'm sure it's not all that simple: that, too, would require a change in the rules, and so isn't easily done. But I sure wish they'd look into it.

I'm with those above who say we don't need to change the rules...just make the other side actually filibuster (talk, talk, talk). Then filibusters will get the press they deserve, and Republicans will be less apt to do it.

I've not studied the Senate rules per se, but Roberts Rules of Order track closely to them. The Senate is a peculiar institution to be sure.

In Roberts, which is geared towards Parliamentary bodies, Debate is unlimited be default. Proposing that debate be circumscribed (like, "3 hours for each side and then vote") is considered a rules change, and requires a 2/3 assent.

Any circumscription of the debate is a temporary rules change, up to and including the idea of stopping debate. The notion of saying "we are done talking, we will vote now" is a waiver of the rules.

The ideal of the institution is that everyone gets their full say. Closing off debate, while some still feel there is useful discussion to be had, is against the ideal of the institution. Hence, a 2/3 vote is required to tell the aggreived minority that they will not be able to continue to try to persuade the majority. In general, it's a good rule.

However the abuse comes from a minority that has no shame in holding up the majority, and I'm with those who say a filibuster should be a real one. Stop the Senate in its tracks and let the country decide if its worth doing nothing while the Senators continue to debate.

We all know the most notorious use of the filibuster, historically, was the block of Southern Senators filibustering all civil rights legislation. It was important enough to that region to stand their ground indefinitely, and it took the public and heroic actions of Martin Luther King (and many others) and the herculean arm-twisting of LBJ to break it. It could be argued that the slow pace of that effort gave much of the country the chance to catch up (I say it *could* be argued...)

Making them stand up and talk and talk on trivial matters, or matters that are popular and of vital importance to the nation, will reveal the tactic for what it is. See how much tolerance the country has for holding up the country's business to filibuster a Supreme Court nomination.

After all, how many Republicans do you need to peel off? 2? 3? (McCain, Snowe.......hmmmm....)

A filibuster can last a maximum of fifteen days. The senate majority leader can decide how long the debate will last.It is not indefinite.

The last filibuster I remember was in December of 2007. Harry Reid gave Chris Dodd three days to debate the FISA bill. But Reid had other priorities and tabled the bill.

Has any body else had to filibuster? or does Reid only make Democrats do that?

Geez, Steve, you left out the most important part of Nate's post at 538 -- these aren't actual filibusters, just the threat thereof.

There's no need to eliminate the filibuster. Rather, somebody needs to mail Harry Reid a set of balls, as Nate more politely noted.

Re Roger Keeling, the problem No. 2 is that the minority isn't forced to pay the political price. If other Senate work ground to a halt with a real filibuster, that would be more effective than any carrots/sticks a majority leader could dangle.

The real carrot/stick is for a good majority leader to play with the calendar so that either urgent or pet project bills are the ones that most risk getting impacted by an actual filibuster.

A failure to do that, as well as an accommodation of fake filibusters, must be laid at Harry Reid's feet.

cheflovesbeer:

I hadn't heard the 15-day-maximum before. Do you have some history on that rule? Is that 15 days and then you have to vote, or if you can't break it in 15 days the filibuster-ers have won?

I have to believe that there was no 15-day rule in the 1960s during the civil rights filibusters; and there must have been some rules change in the last 40 years, probably because of that period.

I just did some googling and found a Senate report on filibusters. I'm sorry I found it on Leibermans Senate site, but here it is:

http://lieberman.senate.gov/documents/crs/senatefilibusters&cloture.pdf

When cloture is invoked, there is a 30-hour period for debate before voting. In the report they go through a hypothetical example where cloture is invoked twice during the process, forcing a bill to go to the 11th workday, or the 15th calendar day, before a vote is taken.

Is this perhaps where you got the "15 days" from? If so, the 15 days refers to the maximum calendar days *when cloture is invoked* (meaning the 60-vote threshold). If no cloture, no end to debate....

What pisses me off is no one actually filibusters, they just threaten to.

Make them do it. See if their time is actually worth their beliefs. Make them stand there and talk for hours and hours.

Many good points, but you forgot one of the most important: in the old days, filibusterers had to actually be there and talk throughout the filibuster. Now, they can just declare "we are filibustering" and not have to indulge the genuine physical stress. Well, maybe that was to be fair to the handicapped or people of varying physical constitution etc. But in that case, the legitimate process just isn't fair so it's better to just get rid of it altogether.

Second: the argument it's "just bad practice" for "numerical majorities not only to use the power of their numbers in straight up votes but to change the rules of the game itself." is false. The rules of the game are determined by the Senate anyway, and there's no original Constitutional permission to have unlimited debate etc. is there? The filibuster is just a insertion of rules into the game itself, not something "natural" that would be taken away. You make rules, you can (and often should) unmake them.

tyrannogenius

I think we are laboring under an old paradigm that is soon to be dead. Having the Senate divided almost precisely equally is not a prescription for Democratic Party rule. With the new Democratic majority, it would take pretty much 100 percent of the Republicans to defeat a cloture vote (assuming the Dems learn a little party discipline, not necessarily a sure thing, but potentially possible). The obvious strategy for the Dems is to pass the immediately critical stuff right off, then make a grand stand over something like health care reform, with Obama and his 13 million email addresses pushing from one corner, the news media reporting the filibuster (and yes, it has to be a real one), and a nation getting angrier by the hour.

By the way, I suspect that the virtual filibuster is more of a courtesy than a hard and fast rule, and that the Dems could simply disallow it and demand the real thing without going as far as that misnamed "nuclear option." Will somebody with better knowledge of Senate rules explain this point please?

PS: The Senate doesn't operate under Roberts Rules, but its own rules. Obviously there are points of similarity, but there are significant differences.

I am sure someone has mentioned this, but why not force an actual filibuster? Don't just invoke the spirit of the rule, make them pull out the cots and read the telephone book for 19 hours. I am certain the coverage of that will not be as glossed over as the current scheme.

The Republicans were only able to filibuster (or rather threaten to fillibuster) on historical levels because the Democrats let them.

This is a Democratic problem, not a Republican one.

As usual, the lack of a spine leads to all sorts of Congressional deficiencies.

And when the Republicans controlled the Senate and wanted to abolish the filibuster, your position was what?

Oh, well, then.

Just remember, there is only one thing certain in politics: the wheel turns. There will come a day, you can be sure, that the Democrats will be happy to have the filibuster available to them.

It can be maddening when one feels a sense of urgency, but as a big picture matter, a slow and lethargic Senate is expected to counterbalance the more populist house.

I agree with Will that this is a Democratic problem. Not necessarily in in failing to overcome fillibusters, but with not properly identifying the GOP as killing popular measures. One thing that the majority can do is force the opposition to take sides on broadly popular issues.

"Shock Doctrine", exploiting the pain of others for their twisted ideological gain, is what they currently do. But if you label them, rightfully, as the giant douchbags holding the country down, then you will peel away so-called 'moderate' GOP senate seats, and render the remaining, ever more ideological toothless minority remaining to pretty much 'bitching on Fox News' as a political agenda.

I think that the auto loan thing has, so far, unfolded exactly correctly. You give a sincere effort to compromise, since it shows you really do love the country more than your party or ideology, then you draw the line at shrieking destructive wingnut. Just make damn sure that everyone knows who hates America when the dust settles. These are precisely the sort of GOP 'victories' that put a black man in the oval office and us teetering at 59 seats in the Senate.

Remember, the 'nuclear' options that they keep pulling also hurt big business. I like the idea of a regional party for the GOP. I love the idea of a near pennyless regional party for the GOP!

-jjf

Note that one thing which the Founding Fathers feared was the 'tyranny of the majority;' in other words, the idea that a majority could run roughshod over the interests of a minority group. The existence of the filibuster in the Senate is an excellent instance of this fear of 'tyranny of the majority' manifest in our government.

All in all, it serves a good purpose. As has been noted, the Dems were very happy to have the option of a filibuster against GOP-favored bills when they were in the minority.

-Z

Actually, Z, while your general point -- about the Founding Fathers fearing a tyranny of the majority -- is absolutely correct, the Senate filibuster was not a tradition they started, by design or otherwise.

From the founding of the nation until 1806, there was no such thing as a filibuster. Up until that time, debate in the Senate could be cut off with a mere majority vote.

The rules were changed in 1806, and for the next 111 years there was actually NO way to stop a filibuster once it had started (unless and until those behind the filibuster relented). In 1917, however, Woodrow Wilson's preparations for World War I were blocked by filibusters. So that's when the Senate adopted Rule XXII, which provided for a two-thirds vote on motions of cloture. According to an article I found in Salon Magazine from 2005, "In 1975, the Senate amended Rule XXII so that cloture required, in most cases, the vote of not two-thirds but rather three-fifths of the senators. In today's 50-state, 100-member Senate, that means it takes 60 rather than 67 senators to put an end to most filibusters."

(I don't know what the exceptions are that the Salon piece vaguely suggests).

What I haven't been able to find (in an admittedly tepid research effort today) is whether or not the current practice -- of simply allowing the minority to say "We're filibustering" to stand in place of actually getting up and talking, talking, talking -- also involved a rule change, or was merely an informal agreement by the Senate leadership. If the latter, then it shouldn't be such a big deal to go back to the way it was since 1806: to filibuster, you must actually get up and talk for days on end.

DBL, there is indeed a partisan temptation to change minds during switches of party power, but like Roger and many say (including Josh in the link but it wasn't quoted): Filibusterers should have to actually carry it out. Let's agree: no more "virtual" filibusters allowed.

"...until and unless the party faces political consequences from outraged voters...."

How is that even possible? We have to wait years to vote members out and votes are not based on how well the senator is able to partake in filibustering. We are no longer ruled buy a majority but now a super majority is required.
This was never the intention of the filibuster rule and the spirit of this rule, to make sure nothing was done in haste and all expression of one's opinion on an issue was exhausted to cause a change of mind in the majority, has been abused.

It is being used just to obstruct any possible success for the other party...for purely political reasons that have nothing to do with legislating. Filibuster abuse cannot continue because our situation is too dire to allow it.

The filibuster rule could be changed so that a filibuster must be done...physically...with every accord to change the majority's opinion can be presented...but it can last only one week and then ended and a vote taken. It prevents any legislation being done to hastily and gives the opposition every opportunity to persuade the majority opinion to change its mind. This way the minority cannot just obstruct legislating by the majority just to prevent the majority from succeeding.

The republicans have turned into POP (the People's Obstructionist Party) and are hurting the country during an emergency and must not be allowed to continue.