Editore"s Note
Tilting at Windmills

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February 17, 2009

THE DEBATE OVER FILIBUSTER REFORM.... There's been some good discussion over the last several days about the Senate filibuster and whether the process should be reformed. It seems, however, that some of participants have been talking past one another.

At The Moderate Voice, for example, Jazz Shaw complained about my tone, before warning Democrats, "Be careful what you wish for."

Listen, Democrats... you didn't like it when the GOP was running the table on you, stopping all of your agenda and building audition tapes for Legislators Gone Wild. If you didn't have the filibuster, what judges would be sitting on all the courts right now? What other legislation would be in place? [...]

Be calm. Take a deep breath.... If you get too greedy now, you're going to regret it down the road, and likely sooner than later.

BJ at Newshoggers says the status quo is "clearly problematic," but adds that Democrats should "think long and hard about what tools you want to hand the majority party when the scales ultimately shift again and you no longer agree with their agenda."

A Political Animal commenter added, "It is hypocritical in the extreme for Democrats to do an about face on this issue and now advocate changing the system simply because we have power. The filibuster was an important tool during the dark days of the Bush years that we were able to use to block controversial nominees (maybe leglislation [sic] as well, I just can't remember)... To now argue that the system is in need of reform is completely unprincipled and hypocritical."

These are fair observations, but they're looking at the issue in a fairly narrow way. When one likes the party is the majority, he/she hates the filibuster; when one's party is in the minority; he/she treasures it. This argument emphasizes the need to be consistent, and remember that majority status comes and goes.

I'm trying to look at this in a different way.

First, the notion that Democrats used filibusters to great effect is mistaken. Scott Lemieux notes that "apologists for the filibuster ... literally can't cite a single example of the filibuster working to good ends." (Hilzoy noted Janice Rogers Brown the other day, but Judge Brown is, as of now, enjoying her lifetime appointment to the federal bench.) Elena Schor added, "After researching the history of meritorious filibusters, however, I was amazed to see how few instances there are of a successful stalling of just-plain-bad legislation."

Second, when it comes to notions of consistency and hypocrisy, to help things along, I'll largely concede the point. I think there's a qualitative difference between previous (occasional) use of filibusters and the unprecedented, record-breaking system Republicans established in 2007, but let's put all of that aside. If it will lead to a more productive discussion, I'll plead guilty. I haven't gone back and looked through my old posts, but I suspect I've probably defended more than a few filibusters, when I thought the minority was right and majority was wrong. I've seen the error of my ways. Was blind, now see.

With that in mind, let's focus the discussion a bit. The status quo is a mess. The American electorate can give a party the White House and sizable majorities in both chambers, but that party will still struggle badly to pass its agenda. A 41-member minority party can block legislation -- controversial or not -- by abusing an obscure procedural tactic that was never intended to be used to necessitate supermajorities on literally every piece of legislation.

Is this good or bad? Defensible or indefensible? Consistent democratic principles and our constitutional system or not? Is this productive for the governing process or needlessly destructive? Was this the intended use of the rule, or has it been twisted beyond recognition?

Those who approve of keeping the filibuster around as a "check" -- despite the fact that it was never intended to block congressional majorities from passing legislation -- envision a cyclical dynamic: Republicans win voter approval, but are limited by the Senate minority. Democrats win voter approval, but are limited by the same obscure legislative tactic. Government through obstructionism. Everyone has a credible excuse for failing to deliver on a policy agenda.

What was once an exceedingly rare challenge, used under extraordinary circumstances, has become -- after no public discussion at all -- a mandatory supermajority simply to govern. Either one can defend this system, or they can call for reform.

Steve Benen 11:20 AM Permalink | Trackbacks | Comments (53)

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The only option I see is to return to the days of the actual filibuster as opposed to the current virtual one.

Alas, the GOP might still be willing to abuse that as well.

Posted by: howie on February 17, 2009 at 11:24 AM | PERMALINK

I think I'm with Steve on this one. When the filibuster was used for extraordinary circumstances, I was fine with it. Now the Republicans have dictated that a super-majority is required for all legislation. That's asinine.

Give the Senate minority a limited number of filibusters per session and make them choose wisely. We have a strong argument given that they've broken all-time filibuster records since becoming the minority. These are the clowns that mouthed off about how unconstitutional it was not to allow up or down votes.

Posted by: CJ on February 17, 2009 at 11:27 AM | PERMALINK

I find all the discussion about what to change fascinating. What I find lacking is any feasible way to actually make any change.

What is the mechanism by which change can be passed?

Posted by: paulo on February 17, 2009 at 11:28 AM | PERMALINK

The core issue is the need for a supermajority to pass legislation. Look only as far as California to see the process to its ugly conclusion.

Posted by: artsmith on February 17, 2009 at 11:35 AM | PERMALINK

I'm all for actual all-night/week/month long filibusters. Sure, the GOP might abuse them, too, but honestly, I don't think they will. The current "wussy" version of the filibuster is great for cozying up to their base, but if they REALLY had to filibuster, then everyone who is NOT in their base will see it for what it is, a stall tactic. And considering how momentum is on the side of the left, those stall tactics will eb seen as stall tactics towards actual and necessary change. In other words, they'd only be abused up to 2010, and when the GOP got their asses handed to them, those Republicans who remain would realize how dangerous it is to abuse the filibuster, and be more inclined to use it only when they think it really matters and not for political theater.

In fact, something they should consider is that, the way things are going, the Democrats will HAVE their supermajority in 2010. Once that happens, procedural change in the filibuster may come whether they want it or not.

I'd also like to point out that, during the Bush Administration, the GOP wasn't looking to change the filibuster, they were looking to end it, quash all minority criticism, make sure the other side is never heard. By comparison, Democratic efforts to try to curtail the abuse of the filibuster, so that it's not automatically used as a "cheat mode" to defeat legislation that has a majority of support, is downright level-headed. Anf the GOP doesn't particularly look level-headed right now. Unless they like being the party of idiots and screaming-meemy-pissy-pantses, they might consider growing up a little bit and seeing how bleak things really are for them. Making their own beds and all that.

Posted by: slappy magoo on February 17, 2009 at 11:38 AM | PERMALINK

In general, I think that if budget and tax bills can't get 60 votes out of 100 then maybe the bills need to be re-worked.

But since 38 current senators are economically illiterate and completely irrational, and three other senators go along with them much of the time, then the system is not going to function. And the country can't afford to have its legislature paralyzed.

The best short-term solution would be to force the Republicans to stand up and talk to keep a filibuster going, and at the same time use their own words to ("Up or down! Up or down!) to show how ridiculous and hypocritical they are.

Why can't the Democrats set their egos aside and stick to talking points the way the Republicans do?

Posted by: SteveT on February 17, 2009 at 11:38 AM | PERMALINK

Force the GOP crybabies to actually use the filibuster. Harry Reid wets his pants when the Republican vermin threaten to use it. Make those slimeballs stand up in the well of the Senate for 14 hours or so and run their idotic yaps - it would show the American people how God blessed stupid most of them are. After a few of these marathon sessions these jackasses might come to their senses.

But, don't change the rules just cuz we are now in the majority, as that sure as shit won't last!

Posted by: Sam Simple on February 17, 2009 at 11:38 AM | PERMALINK

Would someone care to remind me when did the Democrats ever use the filibuster to block Bush's legislation in the Senate?

Posted by: Paul on February 17, 2009 at 11:40 AM | PERMALINK

Endless debate on a bill requiring senators to stay in the senate all night is a good thing. Pro-forma "intent to filibuster" declarations are a gambit of the weak.

(though such a filibuster stymied Josh Bolton from getting his appointment, by the way, if you're looking for a good example of its use)

Posted by: Tyro on February 17, 2009 at 11:42 AM | PERMALINK

The whole arguement is predicated on the idea that Dems would actually filibuster when in the minority. Can anybody tell me at what point in the last 8 years the Dems actually filibustered?

If the Democrats in the Senate actually had a spine this arguement might make sense.

Of course the most crucial reform in the Senate is not the filibuster. Its getting Harry Reid removed as majority leader and replaced with a Democrat (rather than someone who plays one on TV).

Posted by: thorin-1 on February 17, 2009 at 11:43 AM | PERMALINK

You have to pair the discussion with the mechanics of the politics it's supposed to use to operate the machinery.

In Roberts' Rules (which is a guideline, not the actual Senate rules), discussion/debate continues unless a 2/3 majority says it's over. This clearly protects the minority, allowing them to have their say (not get railroaded) -- but the idea is that eventually 2/3 of the assembled will figure that debate has run its course and say "go ahead and vote now"

A filibuster is an unwillingness to allow debate to conclude -- debate in the Senate is, by definition, indefinite. And Senate rules set the bar for debate conclusion at 3/5 (60) rather than the draconian 2/3 (67). A filibuster states that this matter is so important that no other business will be conducted until the majority gets tired of waiting.

Political pressure will be brought to bear on both sides. Which is stronger -- the pressure to move on to more pressing matters, or the pressure on the minority for wasting time or stalling? If the public decides that either the minority has a point, or that the issue the majority is pressing isn't worth all the trouble, the public will be mad at the majority; if the public decides that the minority is in the way of something they want, they will get mad at the minority.

Both sides will hold their pattern until it becomes clear which side is going to suffer at the polls.

But here's my point -- none of this matters if the public isn't aware of what's going on, or what's at stake. If it's done quietly, they don't know and they don't care. The filibuster has to cost someone something.

Remember when the Democrats filibustered the judicial nominations, and the Republicans made them talk? The Ds continued to bring up how many of Clinton's nominations were stalled in committee, and how few nominations they were opposing. The public never saw it the Republicans' way.

I think the filibuster is a fine tool, but only if it is very visible. Right now there's no cost to the side that wants to filibuster, and it's being used routinely.

Posted by: zmulls on February 17, 2009 at 11:45 AM | PERMALINK

I always find it funny that when this hypocrisy arguments get traction in the media, it's invariably the Dems who get labeled that way regardless of degree. Where are the articles decrying the Republican jettisoning up and down votes?

And it's pretty clear that the Dems didn't use this tactic much when the Republicans were able to get their entire agenda through with a much smaller majority.

The real story here is the Republicans in the Senate voting in a bloc on nearly everything, as if we were in a parliamentary system. It's hard to believe that there are no states with Republican Senators who will not benefit from the stimulus package. Putting party ahead of both country and constituents is the real story here.

Posted by: JayAckroyd on February 17, 2009 at 11:47 AM | PERMALINK

I would simply flip the requirements. Instead of needing 60 votes to end debate, make it so that there must be 41 votes - in chamber - to extend it. Ifa party wants to filibuster, then they have to keep 41 votes in the Senate chamber. As soon as one leaves, the filibuster is over. This retains the filibuster for extraordinary times, but shifts the burdon to the complaining side. If they feel strongly enough to filibuster, then they shouldn't mind doing what it takes.

Posted by: JoeW on February 17, 2009 at 11:49 AM | PERMALINK

Easy. Get rid of the 'threat,' and make them actually debate the bill. And none of that reading the phone book horse hockey. If it's off topic, the mic gets shut off. If you start to cry, looking at you, Boner, the mic gets shut off.

What Jazz hands and the rest of the nonexistent 'middle' fail to realize is that you absolutely cannot make progress when the goal of one group of participants is to destroy government in an effort to self-fulfill their demented prophecy.

Posted by: doubtful on February 17, 2009 at 11:50 AM | PERMALINK

Get it straight, the fillibuster only exists for the current Republican minority. Recent history has demonstrated that the fillibuster only exists for Dems as long as they agree not to use it against a Republican majority. If they do use it, the Republicans will take the nuclear option and abolish it. therefore, it is absurd for the Dems to honor a gentlemen's agreement with a party that is willing to honor it, only when it benefits them, but have openly threatened to abolish it when it does not.

Posted by: Chesire11 on February 17, 2009 at 11:53 AM | PERMALINK

Isn't this purely academic at this point? The Senate Rules are set at the beginning of each Senate (every 2 years) and then can't easily be changed thereafter. The nuclear option involved having Cheney as VP rule some point of order could be decided by majority vote when really it couldn't, and that was (somehow) how they got to the nuclear option. The VP of course no longer presides, and it is doubtful anyone else would rule that way.

So this will have to wait until 2011, at which time if the Dems have more than 60 votes they can break filibusters as well as do away with it or neuter it a little.

The real problem is Mitch McConnell's willingness to use it for procedural votes and to withhold unanimous consent for things just to gum up the works. He is the best advertisement for a 60+ vote Dem majority. Breaking his power would involve Reid in some real hardball, like never bringing up anything the GOP wanted., combined with Obama screwing KY and a few other states out of federal funds, which I doubt he would do.

In short, the Dems may want to restrict the uses of the filibuster in 2010 if they have the 60-vote majority, but the real problem is the philosophy of the GOP, and only the ballot box and the grim reaper can change that.

Posted by: Mimikatz on February 17, 2009 at 11:54 AM | PERMALINK

Reforming the filibuster is a half measure.

Reducing the powers of the Senate to its quasi-executive powers (reviewing nominations and treaties), a power to impose a one-time delay on legislation approved by the House with less than a 2/3 majority for a fixed interval (say, 90 days) — requiring a second House vote after that interval before it goes to the President — and its existing role in overriding Presidential vetoes would be a better "reform". And, in doing that, I'd require that the Senate have a fixed period after an executive appointee or treaty is presented to express, by a majority vote, its rejection of that appointee, rather than requiring a positive vote to affirm.

Posted by: cmdicely on February 17, 2009 at 12:00 PM | PERMALINK

zmulls above wrote, -- but the idea is that eventually 2/3 of the assembled will figure that debate has run its course and say "go ahead and vote now".

That is how it ideally meant to work. But in the present how it has come to work is that a fillibuster is intended to impede only, not debate, and a 2/3 vote will only happen when one side concedes, not when they feel they have heard enough.

I think it's illogical to require a 2/3 or super-majority vote on anything. It simply impedes progress.

If you argue it's a necessary check, remember George Bush had no checks on him at all, and we can still undo the evil he wrought.

Posted by: alan on February 17, 2009 at 12:02 PM | PERMALINK

Scott Lemieux notes that "apologists for the filibuster ... literally can't cite a single example of the filibuster working to good ends."

We still have a Federal Estate Tax on account of Dem filibusters.

Posted by: low-tech cyclist on February 17, 2009 at 12:03 PM | PERMALINK

When Democrats were in the minority, the Republicans threatened them with the "nuclear option" of abolishing the filibuster if the Democrats tried to use it. Sauce for the goose -- just sayin' --

Posted by: T-Rex on February 17, 2009 at 12:04 PM | PERMALINK

If you want to see what giving a minority a veto over policy will achieve, look at California. In the 70s and early 80s, voters were scared they'd be taxed excessively (with some real world justification, much inflated by Republican demagoguery). So we made it impossible to pass a budget without cooperation from the minority party. Because of being completely out of tune with the browning of California, Republicans have shrunk to a 34 percent share of the legislature -- but they are still holding hostage the budget that should have been passed last July.

California is broken because we enacted minority protections that amounted to a license to destroy -- and the Reps took up the challenge.

Posted by: janinsanfran on February 17, 2009 at 12:04 PM | PERMALINK

If 41 senators are implacably opposed to something then it is by definition controversial. If the GOP wants to make every piece of routine legislation that controversial, then it is up to the Democrats to make the absurdity of this clear and thus hound the GOP into returning to historic patterns of filibuster usage. If they don't, then they should be slaughtered in the next election.

As for the founders never considering the filibuster as a check on power, those were also the days when Senators were appointed. The Senate itself was meant as a check on radical democracy, which was considerably weakened when direct election of Senators began. I don't want a second House of Representatives, thank you very much.

Posted by: ColoZ on February 17, 2009 at 12:05 PM | PERMALINK

I'm not sure the only suggestion is to scrap the Filibuster all together, just to reform it. As Steve noted last week, the burden of a Filibuster as it currently exists is on the majority party - because they all have to hang around for quorum calls, while one or two yahoos from the minority can blather on all night.

I do agree that Harry Reid should make them stand up and talk it out - at least the footage would be captured on CSpan, and would be available for election commercials. If the Dems packed up their toothbrushes & sleeping bags for a few important fights, they could push back on the expanded use a bit.

Even if the Dems used it back then sometimes, it doesn't seem like Trent Lott ever had problems like this getting legislation passed...

Posted by: Jamobey on February 17, 2009 at 12:15 PM | PERMALINK

What was once an exceedingly rare challenge, used under extraordinary circumstances, has become -- after no public discussion at all -- a mandatory supermajority simply to govern. Either one can defend this system, or they can call for reform.

I'm in the "mend it, don't end it" camp. The filibuster needs to be reworked so that it costs the filibustering minority significant time and effort, and makes their obstruction visible, without costing the majority anything.

Here's one off-the-top-of-the-head idea: change the rules so that while a bill is on the floor after a failed cloture vote, a quorum call can be satisfied by proxy: let one Senator hold the proxies of other members, and let those proxies and their holder satisfy a quorum call as if the absent members represented by proxy were present in the chamber.

That way, only one member of the majority would need to be physically present, and could call for a vote, and vote on behalf of that majority, as soon as the filibusterers stopped talking.

That would at least even the balance of effort required from the two sides after a cloture vote failed.

Posted by: low-tech cyclist on February 17, 2009 at 12:16 PM | PERMALINK

"Either one can defend this system, or they can call for reform."

Or "one" can force the Republicans to actually filibuster. Put a series of red emat legislation out there and let them bluster and filibuster, have a few exhasusted weeks, and see how fast they decide to discontinue threatening filibusters every time a vote is scheduled. It will be untenable for the Repugs, and very unpopular among the citizenry.

Posted by: ghillie on February 17, 2009 at 12:23 PM | PERMALINK

I think one the reasons that the Republicans are able to filibuster so successfully right now is because it is urgent to get a stimulus bill passed right now. If there was no rush, it would be much harder for them to filibuster, since they would be shutting down the Senate.

Posted by: DR on February 17, 2009 at 12:28 PM | PERMALINK

"literally can't cite a single example of the filibuster working to good ends."

I can think of one right off the bat. Privatizing Social Security.

No - it wasn't a filibuster per se, because a bill never got even close. But the Democrats only had 44 seats at the time, and everyone of them stayed unified and publicly denounced the idea.

Can anyone imagine how bad the political outcry would be right now if a portion of Social Security was tied up in the current market?

(Actually, can anyone imagine the gains the Democrats would have made in the 2008 elections if Social Security was tied up in the current market? hmmmmm........)

Posted by: Chris on February 17, 2009 at 12:36 PM | PERMALINK

The Gang of 14 was supposed to get moderation on both sides in return for Democrats not using the filibuster rule, and the "nuclear option" was there to backstop it. Still, I remember no act by that Gang of 14 that was actually moderate, let alone responsive to Democratic input. By any measure, the supposed bipartisanship lead to Republican's majorities steamrolling the Democratic minority. Judges like Brown were confirmed, Roberts and Alito too. Why worry about reciprocity down the road, when it is clear that our modern Republican party will apply the rule one sidedly.

Posted by: Eric on February 17, 2009 at 12:42 PM | PERMALINK

an obscure procedural tactic that was never intended to be used to necessitate supermajorities on literally every piece of legislation.

Why didn't the men who created the Senate rules forsee that one party would use the filibuster to obstruct the business of the Senate?

Because they never imagined that one party would be so brazenly indifferent to the welfare of the country. They imagined that it would be too embarrassing, too shameful, to admit using procedural delays to bring the business of the Congress to a standstill.

Were they right? The only way to know for sure is to bring the embarrassment and shame.

Posted by: Quaker in a Basement on February 17, 2009 at 12:44 PM | PERMALINK

Is there an Axis of Democracy composed of Hilzoy, Matt and Steve?

This Axis continuously makes the same assumptions about the filibuster which lead them to conclude that the filibuster is undemocratic. They also appear to not even recognize the assumptions they are making.

I'll post these below, but first, I'll note the illogic in this current post: only the minority likes the filibuster. Here's the problem with that assumption: only the majority can get rid of the filibuster, yet we still have it after 230+ years.

Okay, here's my list of assumptions made by the Axis:

1. Democracy of 50% rule (majority rule).

If 51 Senators could pass legislation, a coalition of small states could determine what laws are passed. This would be the tyranny of the minority. Any minority of Senators blocking legislation is much more acceptable than a majority of senators representing a minority of citizens passing legislation. In other words, it is less likely that a minority will stick together if sticking together means not getting anything done.

2. Senate didn’t intend filibuster.

This is nonsense. The senate is a consensus body. One senator can block anything, even if the filibuster was removed this rule would still exist. The senate generally works via unanimous consent. If you removed the filibuster, the republicans could still require votes on everything. Imagine how slow everything would go if republicans really wanted to obstruct. Hint: listen to the senate president for the words “without objection”. If anyone objects, you have to call the roll and then vote.

3. Every vote stands on its own.

The assumption is that senators don’t have a need to work with each other over a long period of time. But votes on legislation is not like electing someone to office.

4. There is no value in forcing the majority to explain their legislation in floor debate.

One of the big problem with the last few weeks was the absence of democrats explaining the stimulus bill. Instead we had lots of republicans spouting off nonsense. The filibuster allows the minority to at least have a discussion. A cloture vote does more than “end debate” it sets a fixed amount of debate time for each side. If you remove the filibuster, the majority could allow no debate.

That seems to be the biggest problem: with no filibuster, bills could pass without any public debate.

Posted by: tomj on February 17, 2009 at 12:48 PM | PERMALINK

I think "mend it, don't end it" should be the first step. The onus should be on the opponents of a bill to keep the legislation from advancing. Let's see the results of making that the rule before going further

If this country wasn't chock full of people who (still) believe some crazy-ass sh*t, I'd be for eliminating it entirely right now. But people like Inhofe and Bachmann - not to mention Bush - are still being elected, and so I am a bit leery of allowing entirely unencumbered majority rule in both chambers.

However, I also believe that the minority (or an individual) should only be able to slow legislation down, not stop it entirely. If the person or group can't persuade others to join in opposition after a reasonable time period, then there probably isn't a good reason to oppose the bill.

Posted by: PeakVT on February 17, 2009 at 12:50 PM | PERMALINK

If we made them ACTUALLY FILIBUSTER, the focus would shift to them and their rationale. IMO, that works in our favor and forces REAL DEBATE.

But such a strategy requires spine, guts and cajones, qualities our leadership sorely lacks.

Posted by: bdop4 on February 17, 2009 at 12:55 PM | PERMALINK

Thank goodness Washington Monthly is now airing this issue. The filibuster is simply unconstitutional, but nobody has "standing" to challege it in the courts.
A simple majority of Senators can change the filibuster any time they choose using the misleadingly named "nuclear option." It is nuclear only in the sense that it might reduce the ability of Senators to get re-election campaign money from those who want to avoid change. Vice President Biden could rule that a simple majority is required for legislation that can be undone and that a 3/5 majority is constitutional for Judicial appointments which can be undone only by impeachment.
If the will of a vast majority of voters is implemented to get the things we need like Universal Single Payer Health coverage, and true banking reforem, there will be such popular satisfaction that a future conservative majority will never be able to repeal them. No conservative majority has ever been able to repeal Social Security, much as they might like to.

Posted by: Doug Page on February 17, 2009 at 1:01 PM | PERMALINK

I like to think I'm neither totally stupid nor completely uninformed (I also like to think I'm dating Claudia Schiffer), but I've never entirely gotten why it is that the Rethugs with, what was it, 49 seats? could utterly stymie Democratic legislation, while Dem's with 58 (?) seats have to kowtow to the Repukes to get anything even part-way done.
Can someone explain it to me in 80 words or fewer?
Is it really just, "Harry Reid is a total punk?"

Posted by: smartalek on February 17, 2009 at 1:02 PM | PERMALINK

Someone still needs to explain to me why, exactly, the last Congress is a great example of the filibuster gone wild. Yes, there were a lot of them, but even if Democrats had abolished it...there was still a Republican President who would have vetoed everything that was filibustered.

Posted by: Brien Jackson on February 17, 2009 at 1:05 PM | PERMALINK

The filibuster isn't the problem, our electoral system is the problem. So long as any clown can get into federal office by regurgitating party-line talking points, we are going to have legislators putting party first, country second.

Electoral reform means (among others): eliminate gerrymandering, adopt instant-runoff voting, adopt universal voter registration, and make election day a federal holiday.

Undercutting legislators by fiddling with the rules-of-order is a waste of time. The fix is MORE DEMOCRACY.

Posted by: Jon Karak on February 17, 2009 at 1:08 PM | PERMALINK

Why should it be subject to public discussion?

Posted by: MNPundit on February 17, 2009 at 1:24 PM | PERMALINK

There really is nothing wrong with the current filibuster rules -- the problem is that the Democrats have NEVER required the Republicans to actually filibuster a piece of legislation. If it's so darn bad, make them talk it death. If they want to own the end of the world as we know it, make them filibuster the stimulus plan. But, noooooooooo, that's too mean for the pristine Seante. Instead, the mere threat of a filibuster has been enough to cause the Senate Democratic leadership to cave to whatever demands were being made.

And as for Democrats use of the filibuster during the Bush years, my memory is I don't think they ever did. They got scared by the gang of 14 and "nuclear option." Pathetic.

There is no reason the Democrats "need" 60 Senators for anything. And if the GOP is going to play the games they've been playing, then insisting on the GOP playing nice is just a recipe for disaster (but the Senate Democrats won't care, the conventional wisdom will pin any failures at the feet of the President).

Posted by: po on February 17, 2009 at 1:25 PM | PERMALINK

"A Political Animal commenter added . . . 'The filibuster was an important tool during the dark days of the Bush years that we were able to use to block controversial nominees'"

Um, to what use, exactly, did the Democratic minority put the filibuster to "in the dark days of the Bush years"? None. Nil. The Democrats did not use the filibuster. They did not block Bush nominees, or simply reject them for substantive reasons, nor did they make use of the filibuster.

Quite the opposite. Democrats refused to use the filibuster at all.

I agree one one point: it makes no sense to get rid of the filibuster. It's stupid. It's shortsighted. It'll come back to haunt the Democrats and they'll sorely regret it.

But don't expound that the Democrats profited from their use of the filibuster as the minority when in point of fact they did not use the filibuster. They refused to go that route at all; and did so abjectly.

Very few to none of Bush's nominees were affected via normal processes, despite their many fatal flaws.

This disingenuous 'O we fain wouldst be so guilty as yonder 'publicans' is not helping matters at all. It rings utterly false, because it is a falsehood.

Posted by: johnsturgeon on February 17, 2009 at 1:31 PM | PERMALINK

There really is nothing wrong with the current filibuster rules -- the problem is that the Democrats have NEVER required the Republicans to actually filibuster a piece of legislation. If it's so darn bad, make them talk it death.

So I believed until recently, when a number of people (including Hilzoy, IIRC) pointed out what would happen if the Dems made the GOP filibuster a bill.

1) The GOP would only need maybe two Senators present, one to spell the other during bathroom/laryngitis breaks.

2) The Dems would need to keep at least 50 Dems present, to prevent the filbusterer(s) from ending the day's session with a quorum call.

That's why no filibusters.

Posted by: low-tech cyclist on February 17, 2009 at 1:49 PM | PERMALINK

The problem is that no one is actually required to "filibuster". They have that stupid gentleman's agreement wherein if 60 votes aren't there, then it's assumed the minority will filibuster, and things just die right there. But no one is actually forced to go on the floor of the senate and talk for 10 days straight. If that were to really happen, especially for popular legislation like the bailout, there would be a huge outcry from the public. The "republicans" would likely fold like a cheap card table

Posted by: Herman on February 17, 2009 at 2:04 PM | PERMALINK

I still say, so what. So 50 Democratic Senators need to stay. Pull up a cot. The GOP would still have to stand up and talk and talk and talk and talk and talk about every single bill they found objectionable. And someone (actually 2) senators would need to be the Face of the party. Eventually (and likely pretty darn quick), the political costs will far exceed the benefits and the GOP will be shown for what it is -- obstructionist to the core.

This we need 60 shtick must end. Do your jobs and make the opposition do its. Don't just cave at the first hint that the GOP might actually do something. It's not called bluffing for no reason.

Posted by: po on February 17, 2009 at 2:04 PM | PERMALINK

Golly, I just think that's so thoughtful of Jazz Shaw to protect Democrats from those future times when they're thrown out of office and the Republicans take over. Thanks!

Posted by: The Pop View on February 17, 2009 at 2:31 PM | PERMALINK

Hilzoy's suggestions for reform were good and the commentators fleshed the thoughts out nicety.
They thought of better ideas than I did and I'm not a humble man.

TRY to fix it before scrapping it and codify it so the "nuclear option" gets removed. There's no point in having a good filibuster that the majority can just banish with a simple majority.

Posted by: toowearyforoutrage on February 17, 2009 at 3:50 PM | PERMALINK

I have known that the filibuster is foolish for a long time. I thought this even when it was the Republicans who were limited by it. Basically I believe it is better for the party with majorities and the presidency to be to pass legislation. Back when the Republicans were in charge I understood that filibuster was restraining them but I still believed that the filibuster was an unfair tool for the Democrats to have.

Posted by: Ed on February 17, 2009 at 4:55 PM | PERMALINK

Before acceding to the hypocrisy charge, remember the circumstances surrounding the Nuclear Option.

Republicans were planning to use a blatantly dishonest tactic to alter Senate rules by majority vote in the middle of a session, despite the fact that one of the rules they had implicitly accepted at the beginning of the session requires a 2/3 vote. A similar process had been used in the past, but only in response to the minority party inventing new ways of disrupting consideration of bills after cloture had been voted on.

Worse, they were proposing to do this to end filibusters on judicial confirmation votes only. They were claiming that the Constitution requires an up-and-down vote despite the fact that they had been using a variety tactics even less democratic than the filibuster to block confirmation votes under Clinton.

Remember that for several decades up to 1994, the practice was that a judicial nominee needed the support of 1 of the 2 Senators from the state where the judge would serve. This encouraged the President to consult with a state's Senators without giving an outright veto to a single Senator.

When the Republicans took control in 1994, they changed the rules so that it required the support of both of a state's Senators for a judicial nominee to come to a vote. Trent Lott also let Senators abuse the hold process, intended to allow a temporary delay so a Senator who wasn't available could be present for a vote important to them, to put effectively permanent blocks on legislation and confirmation votes.

Then when Bush was selected President, they changed the rules again so that nominations would proceed to a vote even if neither home-state Senator approved. At this point, the filibuster was the ONLY one of several methods traditionally used to screen nominees that still gave the minority party input.

Given the circumstances, it was not hypocritical for people that otherwise opposed the concept of the filibuster to have oppose the Republican's plans to eliminate its use (for judicial nominations only) through the Nuclear Option.

And given that the so-called "compromise" that avoided the use of the Nuclear Option gave the Republicans virtually everything they wanted, it is not hypocritical to now decide that it is time to shut down their recent abuses of the filibuster.

Posted by: tanstaafl on February 17, 2009 at 5:58 PM | PERMALINK

None of you guys -- except TomJ -- have a clue what you're talking about. You're confusing the rules of the Senate (there are a lot of them), the specific history and use of Rule XXII, the privileges of Senators, and a whole bunch of other stuff that just SEEMS similar, but ain't.

There are two problems worth solving: first, are the practices by which individual Senators can -- anonymously -- prevent action.

Second, the rules by which a minority of Senators can prevent the majority from working its will.

Those are very different problems.

The Senate functions by unanimous consent. Because any Senator can object to any motion, without unanimous consent the majority has to impose its will on that Senator (or the minority), before it can proceed. That's why -- ironically, to save time -- the practice has developed whereby individual Senators often put holds on legislation (or nominees). A hold essentially means that IF the matter was brought to the floor, that Senator would not consent, and so it would be a very big deal for the majority to get it together to overrule even a single Senator -- and even then, only to take up the motion, not necessarily to pass it.

None of which is a filibuster. Hell, the whole point of needing unanimous consent to proceed is why good Senators can cut deals.

The ways in which a minority can prevent the majority from working its will relate to the Senate's unanimous consent rules, but are distinct: there are historic differences between Senators duly sworn, present and voting, filibuster by amendment, and the still open question whether Byrd left yet another possible way for a minority, or even a single Senator, to stop something if they really want to.

So stop talking about "the filibuster" when it isn't what you;re talking about. If you want the Senate to become the House by SEVERELY curtailing the powers of a Senator, e.g., by eliminating unanimous consent, SAY SO -- just stop confusing that with a filibuster, cuz they ain't the same.

And remember just how shortsighted the idea is -- Senator Kennedy could not have achieved a tenth of his work in the Senate under other rules.

Next time you have the urge to bitch about stuff you don't understand, think about that.

Posted by: anonymous on February 17, 2009 at 6:35 PM | PERMALINK

As a matter of democratic principle, the idea of the Senate is anti-democratic, valuing the votes of some of the population - those residing in low population states more than others - those residing in high population states, and consequently the Senate should be eliminated.

Elimination of the Senate would promote coalition building in the House.

In terms of national matters, it would have no impact other than to stop distorting national policy and expenditures away from the majority of the people in favor of low population states. There is no reason why low population states should get an inordinate amount of the nation’s wealth – just the opposite, having less need for infrastructure, population support, public education, etc., they should get less. Each state should get its slice of the pie in proportion to its value to the nation as measured by voting-age population, which is what the House does.

Posted by: pluege on February 17, 2009 at 6:37 PM | PERMALINK

"Removing a mandatory life sentence for 'Murder' and allowing instead for the judge to decide life or a death sentence went fine for 2yrs but then a couple of 'mad-dog' judges had 80 out of 80 defendants put to death. The citizens demanded that the law be changed back due to the over riding abuse these judges took it to."

Does that put it in perspective?? Google how often the dems used the filibuster and compare with how often our 'new' republicans have been using it lately and it is easy to see...it is being abused and used for the wrong purposes...for which it was never intended.

After that happens it can no longer serve a useful purpose. It is now reversing the intention of democratic government, allowing the minority to prevent the majority from carrying out the will of the people. Like everything else the republicans touch...they wrecked it. There is no longer any justification for this rule...none.

As far as being threatened by "What you gonna do when republicans are back in charge" I say never again will Americans allow neocon thugs back in charge...this party no longer even resembles a legitimate party who cares about the people of this nation...they have no integrity or honor to bargain with...when they do then bring the filibuster rule back. Right now it is just a monkey wrench to keep our nation from restoring itself from the night mare these republicans caused.

Posted by: bjobotts on February 17, 2009 at 7:02 PM | PERMALINK

Anonymous, unanimous consent rules allow the Senate to operate under streamlined rules that bypass the normal, more deliberative, pace of bringing issues up for a floor vote.

So yes, if a Senator indicates their intention to withhold unanimous consent, it is often easier to delay action on a vote. However, if a "hold" is being continued for an extended period of time, it is possible to schedule the time necessary to bring a bill, nomination, etc for action without unanimous consent. Also, "holds" were traditionally extended to Senators as a matter of courtesy, rather than rules, even when the Senator wasn't going to be present to withhold unanimous consent. But again, traditionally, this was only done for a limited period of time.

The point was that when Republicans controlled the Senate but not the Presidency, they abused many of the rules and traditions of the Senate to prevent judicial nominees from ever coming to a vote even under conditions (approval of Senator from affected state, approval by Judicial Committee, etc) where such a vote would have been routine during a Democratic Senate (even with a Republican President).

Then when the Bush took office, they reversed course on almost all of these practices to bring nominatins to a floor vote in spite of virtually unanimous opposition by Democrats. At that point, the filibuster was the only option left to Democrats to fight confirmation of some truly extreme nominees, including several to judicial posts only left open due to extended inaction on Clinton's nominees.

The next time you accuse other people of not having a clue, it might help for you to pay attention to what they are saying.

Posted by: tanstaafl on February 17, 2009 at 7:14 PM | PERMALINK

P.S. Despite my defense against the charge on hypocrisy for people wanting to do away with the filibuster, I do not favor eliminating it entirely at this time.

I personally agree with the suggestion of changing the requirement for cloture from 60% of the Senators "duly sworn and chosen" to 60% of those "present and voting".

Then, if the Senate Majority Leader chose to require actual debate to continue after unanimous consent for cloture is refused, the party that wants to continue debate would need to keep at least 2/3 as many Senators present as the other party has in total, or be at risk for the other part to all show up without prior announcement and call for cloture.

Posted by: tanstaafl on February 17, 2009 at 7:25 PM | PERMALINK

P.P.S. This would also require changing the current rules that call for a delay until calendar day after a petition for cloture is presented before it is voted on, or would require (which may be part of the current rules) that additional cloture votes could be requested at any time after the first.

P.P.P.S. To tomj, while you are entirely correct about the deliberative nature of the Senate and that there are many ways short of the filibuster to slow down action in the Senate and force the majority to make accommodations with the minority, it is also true that neither the Constitution nor the rules of the Senate prior to 1806 allowed for unlimited debate nor required a supermajority vote to end debate. It appears likely from the debate around the 1806 rule change that was later used to allow unlimited debate was not intended to have that effect. That isn't to say that some deference shouldn't be given to the 167 years of precedent since the tactic was first used in 1841.

Posted by: tanstaafl on February 17, 2009 at 7:38 PM | PERMALINK

The idea that the only time to discuss reform is when you are not in a position to do anything about it sure seems like a conservative's wet dream. And, of course, if you debate reform when you can't do anything about, people will scream, and rightly so, that you are wasting time.

Posted by: Michael7843853 on February 18, 2009 at 12:40 AM | PERMALINK



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