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Tilting at Windmills

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February 15, 2009
By: Hilzoy

Filibusters Again

Steve, Matt Yglesias, and Kevin Drum are all calling for reform of the filibuster. I agree. I am of two minds on the question of eliminating it entirely. (To anyone who thinks it's just obvious that the filibuster should be eliminated, I have three words for you: Janice Rogers Brown.) But what seems absolutely clear is that if it is kept around, it ought to be transformed back into a tool that is actually painful for the minority to use, and that they will therefore use only when they feel very, very strongly. As Kevin wrote:

"The filibuster was never intended to become a routine requirement that all legislation needs 60% of the vote in the Senate to pass. But that's what it's become. It's time for reform."


I don't think it's enough, though, to say that Senators who want to filibuster should be made to actually stand up and speak for hours on end. To see why, consider this:

"While a filibuster would seem to be more taxing on the side doing the talking, that isn't necessarily the case. The filibusterers need only one person in the Senate chamber at any one time, prattling away. The other side must make sure a quorum -- a majority of all senators -- is on hand, a constitutional requirement for the Senate to conduct business. If there's no quorum after a senator has demanded a quorum call, the Senate must adjourn, giving those leading the filibuster time to go home, sleep, and delay things even more. To ensure a quorum during the rancorous civil rights filibusters, cots were set up in Senate anterooms, and majority senators presented themselves in bathrobes during early-morning quorum calls.

Those seeking a quorum can even demand that the Senate's sergeant at arms arrest senators who aren't present and drag them into the Senate chamber, a measure that has led to absent senators playing hide-and-seek with police officers around Capitol Hill. As recently as 1988, officers physically carried Sen. Robert Packwood onto the Senate floor at the behest of then-Majority Leader Byrd."

This means that the pain of filibusters falls disproportionately on the side that is trying to end debate, not on the side that is mounting the filibuster. Senators do not like to hang around the Senate all night long. Sometimes, they would rather catch up on their sleep, go to fundraisers, fly back to their districts, or do whatever else they feel like doing. As things stand now, only one Senator from the side mounting a filibuster has to give up the rest of his or her life in order to be present in the Senate. The rest of them can just catch up on their beauty sleep. The side that is trying to end the filibuster, by contrast, has to keep almost all its members around in case of quorum calls.

If we're going to reform the filibuster, this has to change. The Senate might make cloture votes require 60% of the votes of those who are present and voting, for instance. That would mean that the side that was mounting a filibuster would have to keep all its members around for the duration. Alternately, the Senate might adopt a rule that said that during filibusters, if a quorum was not present, the Senator who was speaking could decide to go on speaking or to allow a vote on cloture, to be decided by a majority of those present and voting. If s/he decided to go on speaking, s/he could do so, but no other Senate business could be conducted until the next business day. If s/he opted for the cloture vote, it would take place.

There might, for all I know, be problems with either of these proposals. And there's probably an even better proposal out there. But what has to change, I think, is the fact that Senators can now declare their intention to filibuster and either have their way (if no one forces an actual filibuster), or visit considerable inconvenience on their opponents (if a filibuster is forced), without having to suffer the same inconveniences themselves.

That's an incredibly perverse set of incentives. It might have been designed to create the idiotic situation we have now, in which a party that has seventeen fewer Senators than the other is nonetheless in a position to dictate what the majority party can pass, not just on issues on which they feel very strongly, but as a matter of course.

Hilzoy 1:43 PM Permalink | Trackbacks | Comments (51)

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"To anyone who thinks it's just obvious that the filibuster should be eliminated, I have three words for you: Janice Rogers Brown."

Your problem is with the American electorate of that time.

If the GOP controls the WH and Senate, they get to pick the judges. Read your Constitution.

The filibuster, on the other hand, is an extra-constitutional measure that is designed to frustrate democratic government. And progressivism depends on a well-functioning democratic government.

How anyone could call themselves a progressive and defend the filibuster is truly beyond me.

Posted by: Petey on February 15, 2009 at 1:52 PM | PERMALINK

There's nothing wrong with the filibuster. What's wrong is the Beltway culture that not only allows one side to misuse the filibuster, but actually helps them do it. If that mindset isn't changed, eliminating the filisbuster will accomplish nothing.

Mike

Posted by: MBunge on February 15, 2009 at 1:52 PM | PERMALINK

The very idea of the Senate itself is a anti-democratic relic. Abolish it....problem solved.

Posted by: bobbyp on February 15, 2009 at 1:53 PM | PERMALINK

Also abolish that "a" v "an" article nonsense.

Posted by: bobbyp on February 15, 2009 at 1:55 PM | PERMALINK

Hilzoy,

Thanks for your sensible post. The fact that the side staging the filibuster isn't inconvenienced in the least has to be changed pronto. But given the present makeup of the Senate, the Democrats would probably have to go nuclear to accomplish that rule change.

Posted by: gizmo on February 15, 2009 at 2:02 PM | PERMALINK

OK, then end the quorum call at least in context. Instead of the filibusterer being able to demand the quorum, have it the case that as many Senators can go home as want to. If there's no quorum anymore, then that speaker can be declared "used up" and someone else has to talk the next day or etc. IOW and simply, make that issue work the other way around.

Posted by: Neil B ☺ on February 15, 2009 at 2:04 PM | PERMALINK

These are nice suggestions.

Now how are you going to make Harry Reid adapt any of them?

Otherwise, you are in more than one sense, just whistling Dixie.

Posted by: Duncan Kinder on February 15, 2009 at 2:10 PM | PERMALINK

It taks 2/3 vote to change a rule, so it won't happen in the near future, but I would prefer changing it so 40 votes were required to deny cloture. That way an illness like Kennedy's does not count as a vote to continue debate.

How anyone could call themselves a progressive and defend the filibuster is truly beyond me.

If simple majorities in both houses were enough to pass bills, imagine the anti-civil rights bills, the extremist judges, tax cuts, etc. that the Republicans would have passed in the 2003-2007 period. The things that make democracy slow are mostly intended to prevent tyranny of the majority.

Posted by: Danp on February 15, 2009 at 2:11 PM | PERMALINK

Instead of limiting the number of filibusters, give the majority 3 'get out of jail' cards; they get to pass 3 bills per session without needing 60 votes.

That way the majority can put its primary policies in place without allowing the majority to rule completely by fiat.

Posted by: eightnine2718281828mu5 on February 15, 2009 at 2:12 PM | PERMALINK

This is a bit off topic, but if filibusters are to be eliminated can we not also eliminate the ability of anonymous senators to put a "hold" on legislation?

Posted by: -jlinge- on February 15, 2009 at 2:18 PM | PERMALINK

The old fashioned filibuster was useful; those filibustering could hold up action if their principle so guided them, and those who did not could hear -- if they were willing to listen -- the reasons why. So could everyone else, so if a politician was being obstructionist or purely political, the whole world could witness his (her) justification on the record.

If, for example, a senator opposed S-CHIP, he (she) would have to tell the world and C-SPAN and YouTube and Jon Stewart why taking care of little kids was a bad idea. Ditto providing soldiers with proper protective equipment. That on-record info would be available in the next election cycle. The speakers would be, wow, held accountable. What a concept.

And not just for ugly greedy immoral issues promoted by Republicans. If, as once promised by such stalwarts as Dodd, there had been a real filibuster on FISA, he could have told the whole world how dangerous it would be for Bill of Rights and every American.

Oh, and the senators would have to do it, actually filibuster, maybe have to skip that fancy dinner with adoring dinner companions, maybe even miss a wink of sleep. GOOD. Let the princes and dukes (and princesses and duchesses) of the kingdom have some real, up close and personal experience with discomfort like normal human beings. For a change we can believe in.

Posted by: SF on February 15, 2009 at 2:49 PM | PERMALINK

Cases like Janice Rogers Brown are comparatively rare. Filibuster has stopped a whole lot more advances in civil rights than it has cleared obstacles to civil rights. Lynching remained a "states rights" matter for decades longer than it would have without the filibuster. We would have had a civil rights law stronger than the one that finally passed in the 60's in 50's without the filibuster. Look at the overall record and I think you will find the empirical case for eliminating the filibuster hard to refute. Yes you will find some truly awful things stopped by the Filibuster, but I think you will find more numerous and worse things enabled by it. On balance, on net, eliminating the filibuster would make things a lot better. That would be true even without the current historical accident that liberals are much more reluctant to use it than conservatives.

Posted by: Gar Lipow on February 15, 2009 at 2:54 PM | PERMALINK

If, for example, a senator opposed S-CHIP, he (she) would have to tell the world and C-SPAN and YouTube and Jon Stewart why taking care of little kids was a bad idea.
I thought, you could talk about anything you wanted to during a filibuster. Could you clarify?

Posted by: Neil B on February 15, 2009 at 2:56 PM | PERMALINK

I thought, you could talk about anything

You can, but now that it would be on C-Span, it would be a bit awkward. Imagine Jon Stewart and Bill Maher combing the TiVo for tidbits.

Posted by: Danp on February 15, 2009 at 3:06 PM | PERMALINK

Yes, if we had allowed the "nuclear option" to go off we would have gotten a couple of Janice Rogers Browns, but what's worse? A few more conservative judges or 18,000 people dying every year for lack of health insurance? (Institute of Medicine) With the filibuster, we'll never get a decent health care system.

In a democracy, you've got to abide by the will of the people, even if you don't like it. In the Senate and in life in general, fear of bad outcomes is the greatest enemy to progress and change.

The Senate is already incredibly undemocratic. Cows in Wyoming have more power in the Senate than humans in more populace states. Add the filibuster and the entire idea of representative democracy is out the window. Just on principle (don't we progressives tell everyone we stand on principle?), if we are serious about this country ever becoming a democracy, we must kill the filibuster.

What would the founders think of it? They’d be aghast that such an obnoxious tradition (and tradition is all it is) could so impede the will of the people. Whatever it takes, we should shoot the damn thing in the heart!

Posted by: James of DC on February 15, 2009 at 3:44 PM | PERMALINK

Okay, a couple of points here. First, James, if the nuclear option had gone off it would have only eliminated filibusters on judicial nominees, not all filibusters. Perfect for Republicans, not so good for us.

Secondly, Hilzoy, I don't see how you could change the rules to allow business to be conducted in the absence of a quorum. The whole point of a quorum is that without one, the Senate can't conduct any business - this would obviously include any votes.

I do think that it would make sense to change it to 60% of those present and voting, rather than 60% of all seated members. But you'd still need to have a quorum for such a vote to be valid.

Posted by: John on February 15, 2009 at 3:56 PM | PERMALINK

It's curious how none of these concerns about the filibuster were voiced when the Dems were in the minority.

What this is about is stripping almost half of the US's citizens of their remaining power in Washington.

Absolute, total power over everything. Quite brazenly and shamelessly.

Posted by: and on February 15, 2009 at 4:08 PM | PERMALINK

Janice Rogers Brown. Clarence Thomas. . Donald Rumsfeld. Dick Cheney. George Bush. Michelle Bachman James Buchanan. The invasion of Iraq. Measures to reduce the use of condoms. The Smoot-Hawley tariff. The Kansas-Nebraska act. The declaration of war against Spain. Prohibition.

I'm sure Hilzoy can lengthen the list and make my point more readily than can I.

One has to decide whether to come as near as one can to treating one's fellow citizens with equal respect or not.

Posted by: Lister on February 15, 2009 at 4:29 PM | PERMALINK

Someone mentioned it already, but I think the way to fix the issue is assign a maximum number of times it can be used.

Sorta like challenge flags in the NFL.

You get, say, three times a year to use it. That's it. And if you do use it, you get one or two more days of debate, a new vote, and if you still fail to alter the balance, the filibuster fails. The person who brings the filibuster would get to lead his or her team in the debate process . . . He or she could not hide. He or she could not do this anonymously.

All of this would have to be done under the full glaring spotlight and open to the public through C-Span coverage.

Posted by: Cuchulain on February 15, 2009 at 4:53 PM | PERMALINK

Senators don't have districts. They have states. Which makes this extremism even harder to understand. They aren't elected by a gerrymandered sure to be red district.

Posted by: jayackroyd on February 15, 2009 at 4:54 PM | PERMALINK

What this is about is stripping almost half of the US's citizens of their remaining power in Washington.

Hmmm. I wonder. What proportion of the population do Republican senators actually represent?

I agree that party seeking to avoid the tyranny of the majority rarely wants to kill the filibuster. But I do think the burden of inconvenience should be borne equitably between the "filibusters" and the "fillibustees." And that those wanting to continue debate should be given time only to debate the merits of the legislation under debate.

As a person who wanted the Dems to filbuster the nomination of Sam Alito, I cannot now say it should just go away. I think if Harry Reid were a more effective Majority Leader, he could find a way to expose and exploit the inability of the Republicans to work constructively to compromise. Alas, Reid appears to be inept.

Posted by: TuiMel on February 15, 2009 at 5:18 PM | PERMALINK

I repeat what I said earlier: parliamentary government, with restricted Senate powers, to reform if not thoroughly overhaul, the most anachronistic written constitution of any advanced democracy.

Posted by: SocraticGadfly on February 15, 2009 at 5:19 PM | PERMALINK

Well said, Petey at 1:52

Everyone strives to glean the intent, as it is beneficial to them, of the beloved Founding Fathers. It seems rather slipshod on the FFs part to make only a simple majority requisite for most congressional action when they really meant 60%. Perhaps the FFs weren't quite as afraid of democracy and government as the modern cowardly legislative lion.

Of course, they had a far more restricted electorate and restrictive electoral process so maybe they were equally cowardly. It seems these restrictions were loosened over the many years by constitutional amendment and that these amendments(correct me if I'm wrong, not being a constitutional scholar) carry the same weight as the original document. Doesn't the current situation constitute a failure to adhere to the ultimate rule of law and subvert the intent of the liberating amendments.

As was said, the thug affection for a legislative stalemate is understandable given their perspective. For the Democrats to go along is contemptible, hypocritical, pusillanimous, indefensible.

Posted by: Michael7843853 on February 15, 2009 at 5:21 PM | PERMALINK

The filibuster has a long history in US governance, and its use is very much along the lines of the Founders' fear of the 'tyranny of the majority.' In other words, the Founders desperately feared the consequences were the momentary passions of the voters- which had free reign in the House- could thoroughly dominate the Congress. Therefore, they built three antidotes into the system: the longer terms of the Senate, the fact that the Senators should be appointed by the states' governors (changed by the 17th Amendment), and the filibuster.

As been noted elsewhere, the Dems saw the use of the filibuster while they were the minority; they should not make the assumption that they are destined to be a permanent majority any more than was the GOP.

-Z

Posted by: Zorro on February 15, 2009 at 5:21 PM | PERMALINK

I object. The motivation behind the filibuster used to be to make the senate more deliberative about whatever policy was being filibustered. It was all about being a "rare" and seldom used tool to be used on extreme policy issues Now, the republicans have turned it into the practice of achieving political capital. They use it for political gain...to make it look as if the dems can't get anything done. IT PREVENTS THE MAJORITY FROM LEGISLATING...and damn it Reid, the republicans would vote it out in a heartbeat over economic issues (they threatened to throw it out over judicial appointments).

There is no longer any constructive reason for this rule to continue based on how it has been used in the last congress...to obstruct policy for political gain only.

Any time the dems threatened to use it when republicans were in power in the senate republicans said no you won't or we'll vote to get rid of this rule...so dems would back off. Now repubs threaten it at every turn and Reid backs off completely. Seems the only party it works for are republicans whether in or out of power. IT IS NO LONGER JUSTIFIED.

The House is the check on the senate just as the executive and the judicial are. If the senate feels they need a 'rule' to keep issues being debated to be considered more deliberately, then allow the filibuster to have terms. Demand that it be physically filibustered but for no longer than 2weeks...or even one week. Then all the sides of the issue will have been presented and considered...it would have been given every chance for objections to it to have been heard...loudly and entertained by the majority...
But then it should come up for a vote where the "tyranny of the majority" (also called Democracy) decides the issue.

This week of filibuster will give opportunity to change the majority opinion...to slow down passage of the issue...but we can no longer allow a minority to obstruct majority rule. The character of senators have changed to the point that the filibuster is no longer used to determine what is good for the nation but rather what is good for their party. Specter said several repubs wanted to vote for it(issue oriented) but would get too much flack from the party to do it(party oriented)

40 senators cannot continue to obstruct the progress of the majority...it's why we have elections...and the times are too crucial to place politics over legislating.

Posted by: bjobotts on February 15, 2009 at 5:31 PM | PERMALINK

I do think that it would make sense to change it to 60% of those present and voting, rather than 60% of all seated members. But you'd still need to have a quorum for such a vote to be valid.

That sounds like a pretty sensible change. At a minimum, it would require the side that's running the filibuster to keep their guys/gals in the room at all times to maintain the quorum.

Posted by: Mnemosyne on February 15, 2009 at 5:36 PM | PERMALINK

***Posted by: James of DC on February 15, 2009 at 3:44 PM ***

Thanks for posting. I agree wholeheartedly. Forget the "nuclear option". The filibuster rule could be eliminated altogether by 51 votes in the senate. We need to get things done and republicans have publicly stated they ware using the filibuster merely to prevent the dems from having any success. They want them to fail...and thus the nation to fail...just for political gain...for political power. These are not 'honorable' people and they have used the filibuster (over 80 times last congress) as a monkey wrench to stop progress so they can get power. Enough.

Posted by: bjobotts on February 15, 2009 at 5:40 PM | PERMALINK

btw...more people are represented by 2 senators from California than by 2 senators from Utah...yet they have the same voice in the senate???

I doubt that 40 republican senators represent 40%of the population...after the last election and according to all the polls about the wants of the population I'd say they represent about 25%.

If true then 25% of the population is deciding what 75% should have or do. Just saying...

Posted by: joey on February 15, 2009 at 5:49 PM | PERMALINK

I doubt that 40 republican senators represent 40%of the population

If you assign half the population of each state to its Senators, the Dems represent 62.05% of the US population, not counting DC, Puerto Rico, etc. while the Reps represent 37.95%. This presumes Franken wins.

Posted by: Danp on February 15, 2009 at 6:17 PM | PERMALINK

Fixating on the filibuster is mis-guided.

The problem is that our primary-driven two-party system consistently rewards those who are the most ideologically "pure." The general electorate is then faced with the confounding choice between extremes. The winner convinces 50+1, and to hell with everyone else.

Posted by: Jon Karak on February 15, 2009 at 6:22 PM | PERMALINK

To have a deliberative body where a minority of any size can filibuster ad eternum is absurd. Any child knows that. The pro-filibuster crowd is anti-democratic, anti-government, anti-social. One of the primary jobs of SCOTUS is protect the enumerated or implied constitutional rights of the minority. The right to obstruct a law simply because you don't like it is neither.

Posted by: Michael7843853 on February 15, 2009 at 7:22 PM | PERMALINK

Filibusters should require the continuous presence of 41 opposed senators, with enough remaining senators to reach the quorum threshold.

Posted by: Antonius on February 15, 2009 at 7:26 PM | PERMALINK

The Senate only recently changed the Senate rules to allow a (fake) filibuster -- about the same time as the media was changing with the advent of 24/7 cable news. The coincidence is no coincidence.

All senators of every stripe know a (real) filibuster -- or for that matter a real debate of any length -- these days would get humongous media coverage and the public would come down hard on one or the other faction -- either the filibustering minority or the temporary majority.

Progressive ideas are convincing enough to withstand that attention. Conservative shibboleths, not so much.

Ironically, drawing increased public attention to an issue was one of the initial expectations for the original (real) filibuster rule: the minority would stall government at its peril, the temporary majority would jam legislation through without meaningful debate at its peril.

That still would be a fair balancing of risks. It also is consistent with the framer's design of the Senate as deliberative, slowing brake on the passions of a temporary majority.

But the new Senate rule allowing (fake) filibusters accomplishes two very un-democratic things: it keeps the real workings of the Senate confined to the cloakroom, out of the public eye, and it actually reduces public debate. That is why the (fake) filibuster rule needs to be abolished, not the (real) filibuster rule.

If you go back two centuries, it is not at all clear that historically the (real) filibuster has done more harm than good to progressive economic, civil rights, war-and-peace, judicial appointments, or other causes. More modernly, to the extent racists like Thurmond and Helms were able to stall progressive civil rights legislation, the filibuster has been pernicious, for sure; but at the same time the widely-covered (real) filibuster debates in the late '50s, early '60s & '70s helped to clarify just who stood where in the Senate and it energized a whole generation of young people who were appalled to see and hear those southern racists (and, later, male chauvinists) at work. Many of those young people were drawn by the debates to the civil rights movement. I know this. I was one of them.

A (real) filibuster rule should be retained. the (fake) filibuster rule has to go. Make them talk and make them do it in public.

Posted by: John B. on February 15, 2009 at 7:28 PM | PERMALINK

It's a nice theory John B., but it is disingenuous. It assumes that no group could ever tie things up virtually forever. A dedicated group could do it at least until the next elections and that is too long. If the opposition has to resort to reading the phone book or endlessly repeating itself, it is not deliberating, it is obstructing. It is tantrum throwing. Time limits are placed on free expression everywhere else. Why not the Senate?

Posted by: Michael7843853 on February 15, 2009 at 7:48 PM | PERMALINK

To anyone who thinks it's just obvious that the filibuster should be eliminated, I have three words for you: Janice Rogers Brown.) - Hilzoy

Uhh, Hilzoy? Speaking as someone who thinks that its "just obvious" the filibuster should be abolished, I have to note that Janice Rogers Brown is, in fact, a federal judge. How could her example possibly give anyone pause about eliminating the filibuster? Even with the filibuster in place, she got on the federal circuit! How is this a defense of the filibuster?

As a lot of people have noted, the filibuster is an anti-democratic emolument to an already profoundly anti-democratic legislative body. Even people, like Lister, who are trying to defend the filibuster can't come up with any examples of its use by progressives to prevent either bad legislation or bad appointments. Progressive support for its abolition is a no brainer.

Posted by: Rich C on February 15, 2009 at 8:14 PM | PERMALINK

Time limits are placed on free expression everywhere else. Why not the Senate?

Zorro answered this up the thread:

...the Founders' fear of the 'tyranny of the majority.' In other words, the Founders desperately feared the consequences were the momentary passions of the voters- which had free reign in the House- could thoroughly dominate the Congress. Therefore, they built three antidotes into the system: the longer terms of the Senate, the fact that the Senators should be appointed by the states' governors (changed by the 17th Amendment), and the filibuster.

...Dems saw the use of the filibuster while they were the minority; they should not make the assumption that they are destined to be a permanent majority...

Sorry for the wholesale quote, but it bears repeating. Zorro has zeroed in on why I am reluctant to see the fillibuster eliminated and John B. provides an excellent argument for making them talk.

Posted by: AK Liberal on February 15, 2009 at 8:23 PM | PERMALINK

If the opposition has to resort to reading the phone book or endlessly repeating itself, it is not deliberating, it is obstructing. -- Michael7843853, @19:48

True. OTOH, with it being documented on C-Span, how long would it take for even our benighted press to start having headlines like "Day 5: Senator X, having finished reading the Queens phone book has moved on to the Manhattan one"? Not to mention the comedy programs referring to "Senator Mobius Strip" and "Senator Endless Loop"?

Posted by: exlibra on February 15, 2009 at 8:26 PM | PERMALINK

Judicial appointments could be covered by a rule with a 60 vote hurdle like the one governing deficit spending. Let's set some rules for which categories of legislation a higher standard must be met. But, please god, let's end the rule that says the whim of a single fucking Senator can ruin our economy.

Posted by: NealB on February 15, 2009 at 8:37 PM | PERMALINK

The Democrats have power; the Democrats should be very afraid. Quite an argument. What in the last 8 years has lead you to believe that the thugs believe in the rule of law anyway? It's OK if the thugs circumvent the law by any means, but the Democrats dare not use the power the constitution and the electorate has given to them. By the way, the term filibuster doesn't appear in the constitution... Are the fears of the founding fathers justification for anything?

Posted by: Michael7843853 on February 15, 2009 at 10:32 PM | PERMALINK

It would be painful to go through a few filibusters - but if the Dems make the GOP do it threats of filibusters will lose their power.

Posted by: ghillie on February 15, 2009 at 10:56 PM | PERMALINK

Are the fears of the founding fathers justification for anything?

That might depend upon the extent to which one believes that human behavior has changed since our nation's founding. I don't see any evidence that the risk of a "tyranny of the majority" has lessened over time.

Posted by: AK Liberal on February 16, 2009 at 12:04 AM | PERMALINK

Re: tyranny of the majority.

Anyone who claims to be, in Molly Ivin's great phrase, "channeling the Founding Fathers", is just blowing smoke. Our system of government was a set of compromises between factions, to a large extent between states that opposed (or at least were indifferent to) slavery, versus ones that viewed it as essential to their economic welfare. Some of the features we see today, that give low-population agrarian states disproportionate power, were delibrate features to achieve specific political ends, rather than a result of high-minded principles. Others, such as the rise of political parties as a central organizational feature, much less one side maintaining a ruthless party discipline, were not even dreamed of.

Second, the tyranny of the majority ignores a different tyranny, that we are seeing now. It is a tyranny of a minority party that does not believe in government. When they are in power, they loot the parts that they can, and mismanage the rest. When they are out of power, as they are now, they obstruct and only obstruct, since there is no penalty for them doing otherwise. I see this tyranny to be more destructive than the tyranny of the majority. In the latter case, at least there is accountability: if you have power, and screw up, you are voted out, and no longer have power. In the present system, win or lose, obstruction and destruction of effective government wins.

Posted by: divF on February 16, 2009 at 12:39 AM | PERMALINK

Sure it has changed. Many prejudices and injustices are in remission. Your pessimism about the potential for humanity can hardly be called liberal. The war is far from won, if it ever can be, and the last 28 years in this country have been a reversal, but the general trend since the Magna Carta has been positive.

The catalog of atrocity since 1215 is extensive, but far from definitive. Resignation and/or waiting for Jebus to come and save us accomplishes nothing. Indeed, it gives heart to the worse angels of our nature and they need no encouragement from us. That is the conservative's vocation.

Posted by: Michael7843853 on February 16, 2009 at 12:42 AM | PERMALINK

how about mandating that the filibustering senator actually speaks to the matter at hand?

Posted by: logicat on February 16, 2009 at 6:07 AM | PERMALINK

Sure it has changed. Many prejudices and injustices are in remission. Your pessimism about the potential for humanity can hardly be called liberal. The war is far from won, if it ever can be, and the last 28 years in this country have been a reversal, but the general trend since the Magna Carta has been positive.

That is evidence of changed values, not a change in human nature. Strong civic institutions and a balance of power reinforce democracy and liberal ideas. Ask the Russians how their democratic experiment has worked out.

Anyone who claims to be, in Molly Ivin's great phrase, "channeling the Founding Fathers", is just blowing smoke.

One need not claim to be "channeling the founding fathers" to have a decent respect for what has been built by others. There are other solutions to the "tyrrany of the minority". Make 'em talk and defend their ideas in public. As other have observed it will be painful at first. But, the GOP will be much less likely to invoke the the fillibuster over time.

In other news, the GOP sure Obama a thing or two, now didn't they?

Posted by: AK Liberal on February 16, 2009 at 9:21 AM | PERMALINK

The filibuster, on the other hand, is an extra-constitutional measure

Not true. The constitution empowers the Senate to make its own rules. The filibuster is such a rule -- one of many. (Another is the PAYGO rule that required 60 votes to suspend in order to enact the recent stimulus package.)

Posted by: Gregory on February 16, 2009 at 9:43 AM | PERMALINK

'The constitution empowers the Senate to make its own rules.'

Where in the constitution does it say that when the Senate decided(in the future, boy those FFs were good!) on having an unlimited filibuster they would be infallible. You act like a rule of the Senate has the weight of an article of, or amendment to, the constitution. It doesn't.

Posted by: Michael7843853 on February 16, 2009 at 11:13 AM | PERMALINK

You act like a rule of the Senate has the weight of an article of, or amendment to, the constitution. It doesn't.

Not at all. It's just that the Senate was concieved to not be like the House of Representatives. The Senate (and the fillibuster)is a useful brake on ill-considered, but popular legislation.

Posted by: AK Liberal on February 16, 2009 at 12:17 PM | PERMALINK

Anyone who claims to be, in Molly Ivin's great phrase, "channeling the Founding Fathers", is just blowing smoke. Our system of government was a set of compromises between factions, to a large extent between states that opposed (or at least were indifferent to) slavery, versus ones that viewed it as essential to their economic welfare. Some of the features we see today, that give low-population agrarian states disproportionate power, were delibrate features to achieve specific political ends, rather than a result of high-minded principles.

A point that I frequently try to make but you say it much better
I intend to shamelessly plagiarize this

Posted by: jefft452 on February 16, 2009 at 12:50 PM | PERMALINK

Where in the constitution does it say that when the Senate decided(in the future, boy those FFs were good!) on having an unlimited filibuster they would be infallible.

No one is making that argument.

You act like a rule of the Senate has the weight of an article of, or amendment to, the constitution. It doesn't.

No, I said that since the Senate's ability to make its own rules is enshrined in the constitution, it's incorrect to say that a Senate rule is "extra-constiotutional." That argument will get you nowhere.

Of course a Senate rule isn't the same as a Constitutional amendment, because, again, only the Senate is required to consent ot a rule change -- not both Houses, the President and two thirds of the States.

Posted by: Gregory on February 16, 2009 at 1:40 PM | PERMALINK

I have a solution to this abuse of the filibuster, and I call it "The 3 Strikes Doctrine."

Conceptually it is simple: The minority is permitted up to 2 "tabled" measures at any time, presumably due to sincerely and deeply felt disagreement making compromise impossible. Once a third measure is filibustered (bills that have achieved 51+ votes for cloture) then the doctrine slams into effect.

According to the doctrine, all other work of the Senate stops, and the general session goes into 24/7 operation debating these three bills exclusively. This means that no committee or sub-committee meetings may occur. No scheduled events of any kind are permitted, including press interviews or press conferences. Nothing. Any attempt by any Senator to break-out of this constriction shall be objected to by the majority leader, backed by his majority party members. Any parlimentary trick necessary will be employed to make life-as-we-know-it for all Senators simply stop, except for debating these three bills.

The point is to draw as much media attention as possible to the fact that the obstructionist party has temporarily "destroyed" the Senate as an institution. Political supporters in the media should be encouraged to compare this situation to a "Hostage crisis" or a "Terrorist attack" blamed upon the minority. This complete shutdown will continue until one of the three "tabled" measures is allowed to "end debate" by passing the cloture vote. Only then will the Senate resume orderly conduct.

The majority party must respect the fact that a minority that is willing to filibuster routinely has already thwarted the will of the people, and that utterly halting the entire Senate is little different.

Note that this is NOT A RULE CHANGE. It is a doctrine, meaning that the majority party can choose to follow it without taking any vote at all, although it would require great DISCIPLINE to insure that at least 51 Senators of the majority party have the courage to stay the course and not "cave in" to pressure to let the minority off the hook and resume operations.

The 3 Strikes Doctrine has the big advantage of being easy to communicate to the press, and easy to rhetorically paint the minority with, which is the whole point. You cannot wait until a dozen bills have been tabled, and then suddenly spring this on them. The Majority party must make a huge deal in the press about this doctrine being the formal policy of the party, and how the minority will be responsible for invoking it.

Posted by: DigitalDave on February 16, 2009 at 2:37 PM | PERMALINK




 

 

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