Editore"s Note
Tilting at Windmills

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January 22, 2010

HARKIN EYES FILIBUSTER REFORM.... Nearly 15 years ago, Sen. Tom Harkin (D-Iowa) presented a plan to eliminate the Senate filibuster and allow Congress to pass bills by majority rule. The bill failed miserably, 76 to 19.

Now that obstructionist abuse has reached levels unprecedented in American history -- now, literally every bill of any significance needs 60 votes -- the need for reform is overwhelming. Harkin signaled a month ago that he intends to revisit the issue, and he's poised to follow through.

Sen. Tom Harkin (D-Iowa) intends in the next few weeks to introduce legislation that would take away the minority's power to filibuster legislation.

Harkin has wanted to change the filibuster for years, but his move would come in the wake of Republican Scott Brown's dramatic victory in Massachusetts. Brown's victory cost Democrats their 60th vote in the Senate, and may have dealt a death blow to their hopes to move a massive healthcare overhaul. It could also limit President Barack Obama's ability to move other pieces of his agenda forward. [...]

In a Jan. 4 letter to his colleagues, Harkin noted that filibusters were used just once per Congress in the 1950s, compared to 139 times in the last Congress.

"At issue is a fundamental principle basic to our democracy -- rule of the majority as a legislative body," Harkin wrote. "Elections should have consequences. Yet the Senate's current rules allow for a minority as small as one to make elections meaningless."

Harkin proposes a new procedural model: the first go-around, the minority could demand a 60-vote majority, as is the case now. But if 60 votes aren't there to end debate, a week or so later, 57 votes could bring the bill to the floor for a vote. If 57 votes aren't there, it drops again and again, and after a month or so, a bare majority could approve cloture.

It would take 67 votes to approve Harkin's measure, which makes it extremely unlikely that this will succeed. But the debate is worth having, especially if it lets more of the public understand that governing and tackling difficult issues is almost impossible with mandatory supermajorities.

I would also, by the way, encourage Harkin's office to come up with a helpful frame for the debate. I recommend: restoration of "majority rule." When a bill reaches the Senate floor, they should count up the "yea" votes, count up the "nea" votes, and the bigger total wins.

That sounds fair, doesn't it?

Steve Benen 11:20 AM Permalink | Trackbacks | Comments (44)

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Comments

50 Senators plus Biden could nuke the filibuster permanently, today, it they wanted to. Enough with the Kabuki.

Posted by: Steve LaBonne on January 22, 2010 at 11:23 AM | PERMALINK

"especially if it let's more of the public understand"

Lets not.

Posted by: Ross Best on January 22, 2010 at 11:24 AM | PERMALINK

The Senate needs to be abolished, or turned into a ceremonial house for blowhards like the House of Lords in the UK. There are 100 senators who have shown us that they may be the self-described "World's Greatest Deliberative Body" but they have also shown that their interminable deliberation is destructive to our country.

Time for a new constitution that doesn't discriminate against voters in large states.

Posted by: freelunch on January 22, 2010 at 11:25 AM | PERMALINK

There is nothing that says you need 67 to change a rule if they do it at the beginning of a session.

Posted by: Napoleon on January 22, 2010 at 11:26 AM | PERMALINK

The allowing an "up or down vote" meme used by the Republicans was a very powerful and easy to comprehend measure

It deed lead to the Gang of 14 compromise/stupidity so it needs to be handled with care.

Posted by: DBaker on January 22, 2010 at 11:29 AM | PERMALINK

This would have been a splendid idea two years ago. Considering the fact that the Dems will be lucky to maintain 41 seats in the next Senate, it is ill-timed. The repubs will amend it to delay implementation until 2011, vote for it, and then celebrate like never before.

Posted by: Tim H on January 22, 2010 at 11:30 AM | PERMALINK

In any case, now that Democrats no longer have to worry about maintaining that ever so valuable 60 vote super majority, can we please kick Lieberman out of the caucus and remove his committee chairmanship? Please.

Posted by: Jon on January 22, 2010 at 11:34 AM | PERMALINK
There is nothing that says you need 67 to change a rule if they do it at the beginning of a session.

There is also nothing that says you cant' use the nuclear option DURING a session. 50 + Biden is all it takes. Next time a bill is up for debate a Democratic Senator raises a point of order saying that the 60-vote requirement to cut off debate is unconstitutional. Biden rules in favor of the point of order. Points of order can't be debated, and immediately go to an up or down vote. A majority vote is required to overturn Biden's ruling. Easy as that. As Casey Stengel would say, you could look it up (there's a well-written Wikipedia article on the nuclear option.).

These mooks are just pretending that they want to govern. The filibuster lets them hide.

Posted by: Steve LaBonne on January 22, 2010 at 11:34 AM | PERMALINK

All this is silly really. There is a really simple way to "fix" the filibuster so that it is only RARELY used but without having to vote with a supermajority to change the rules! All Reid has to do is henceforth declare that filibusters must now be REAL.

No more faux filibusters where it is a mere word that makes a filibuster. The rule needs to be: filibusters require 24/7 filibustering ON THE FLOOR OF THE SENATE. You can yammer and yammer all you want for as long as you can physically tolerate but you WILL do it. No more "Uh Harry? We're 'filibustering'" and then everyone heads off to a fancy dinner or DC party or goes home to screw a page.

Screw that. Reid once said that making senator's do that is "beneath the dignity of the senate" (paraphrasing). Huh? So Reid is, by implication, stating that all previous senates were inferior/lessor bodies than his modern version? Hell, there isn't a politician today who could properly wipe the ass of senators of yesteryear. They are all effete, weak, corrupt, self-serving pansies. Sure, the old senators of yesteryear were also weak and corrupt but still, filibusters were RARE because they actually hurt to conduct them. Now, in this "more dignified time" they are absolutely painless to the point of "why NOT filibuster?"

Enough. Until the next Congress convenes (and the rules can be changed nearly willy-nilly) what Reid CAN do is make the GOP REALLY filibuster. REALLY. And suck it up that he and the rest will have to be there for repeated roll-calls and quorum calls, poor babies.

Once the new congress convenes, the rules should go back to PRE-Byrd: a filibuster is a REAL filibuster with unlimited speech on the floor (twice each, maximum) and ALL other senate business comes to a halt while the filibuster is ongoing. There, fixed. The filibuster would go back to as rare a bird as it was up until Byrd wrecked the whole thing.

Posted by: Praedor Atrebates on January 22, 2010 at 11:35 AM | PERMALINK

Tim H beat me to it.

This is poorly timed. Republicans get to obstruct all they want now, and (if this passes) get to be the first to take the new rules "out for a spin" when they win back a slim majority in 2010/2012 .

Posted by: oh my on January 22, 2010 at 11:39 AM | PERMALINK

Beyond my previous point, the filibuster must stay (with proper modification as per previous). If filibuster had been used by Dems previously, there would be no Roberts' Supreme Court and/or no Alito. With either or both not on the court, there would have been no horrific ruling yesterday that corporations can now openly purchase elections. The FAILURE to filibuster is what has put us in the current situation of now being a full-on corporatocracy out in the open.

Posted by: Praedor Atrebates on January 22, 2010 at 11:40 AM | PERMALINK

"That sounds fair, doesn't it"?
I'm inclined to agree. And then I wake up.

First, what's the worst bill you can possibly image? I'm thinking something on the order of a resolution defining the USA as a Christian Nation and then writing laws that enforce adherence to their view of biblical interpretation.

Second, is it too difficult for you to get your head around the idea that the Retarded Rethugs and their rabid base would find 50% to pass it? Or that the Supreme majority would let the opportunity to please their gods interfere with some constitutional technicality? Or that our military will protect and defend against that which the brass at my neighboring Air Force Academy has so diligently proselytized against?

Posted by: Chopin on January 22, 2010 at 11:43 AM | PERMALINK

Actually, when you wake up you should remember that Republican majorities rarely have trouble recruiting enough conservadems to get to 60 on horrible bills. The overwhelmingly preponderant effect of the filibuster has always been to block progressive legislation. We'll never get anywhere until we get out of our pathetic defensive crouch.

Posted by: Steve LaBonne on January 22, 2010 at 11:49 AM | PERMALINK

Chopin uses an extreme example to speak absolute truth (and this is why I previously wrote that the filibuster must remain...with tweaks).

It is the last, best measure of protecting the minority from a dictatorship of the majority. I would not stand by and accept a non-filibusterable majority rule that the nation is a "Christian nation" with all that would flow from that. Nor that the 10 Commandments can be freely displayed hither and yon, or that organized (and forced) prayer or forced recital of the Pledge of Allegiance or any of countless bad ideas that would be rammed through by a brain-dead majority if given half a chance.

Keep the filibuster but simply re-write the rules to be PRECISELY those that they were when filibustering was rare. It's kinda like the Alternative Minimum Tax. The GOPers want to eliminate it entirely when all that is needed to fix it is simply index it to inflation. Ta-da! Fixed. Same with the filibuster.

Posted by: Praedor Atrebates on January 22, 2010 at 11:49 AM | PERMALINK

Meanwhile, if turnabout is fair play and he has the balls, Obama could try Bush-style (but not substance) signing statements, executive orders, etc. and get a lot done by just going around a worthless Senate. As for voters: we have to try hard to get that disenfranchised 70% or more, to be mad at their being sidelined. (It's not just from there being only 41 minority Senators, but the 2/State rule and the less populous States being more conservative.) Pound this home.Also, an arrangement which impedes 'action' is inherently an unfair advantage to conservatives. (Don't pound as much on that one.)

BTW, what's this about not needing 67 votes "at the beginning of a session"?! We need to hear more about that, see if it's an angle.

Posted by: Neil B on January 22, 2010 at 12:00 PM | PERMALINK

Praedor: IIRC, requiring "real" filibusters is a bad idea for the MAJORITY party, simply because all it takes is ONE minority Senator to suggest the absence of a quorum, and pretty soon business grinds to a complete halt amid a series of pointless quorum calls.

And in any case, as noted before, it ain't gonna happen, and ESPECIALLY not with the Democrats in charge, for the simple reason that filibusters increase the power of INDIVIDUAL SENATORS, each of whom cares far more about his/her own power than about "the Senate." You'd be asking them to vote on something that reduces their individual power, which Republicans MIGHT do -- they have a natural authoritarian bent, plus effective means of enforcement within their caucus -- but Democratic Senators will NEVER do. Lincoln? Baucus? Nelson? It is to laugh.

Posted by: bleh on January 22, 2010 at 12:03 PM | PERMALINK

Why does it require 60 votes for cloture as opposed to 60% of those present and voting? The way it is now, the Repubs could filibuster and keep one Senator present on the floor. The Dems could not do a thing about it, even with 59 votes. Change the rule to 60% who are present and that would reverse. The filibustering party would feel all of the pain and the majority could go to the parties.

Posted by: Daryl P Cobranchi on January 22, 2010 at 12:06 PM | PERMALINK

I agree, but as you state it would not pass now. When the day comes that Republicans again control the Senate will Democrats have the balls to vote against the filibuster at that time.

Posted by: jim on January 22, 2010 at 12:15 PM | PERMALINK

Let's just take a time out from any legislating, send all 100 Senators home.

Let them visit their constituents across their states, let them press the flesh with the poor and destitute as well as the monied and fat cats.

When they have refreshed their memories about Representative Government then they can return to Washington and resume the duties for which they were elected to do.

Right now, things absolutely suck.

I'm sure I can get a 100% agreement on my latter statement.


Posted by: Tom Nicholson on January 22, 2010 at 12:23 PM | PERMALINK

bleh, the entire point of the change I propose is to make it unpleasant for all concerned to filibuster. I WANT the senators to have to be there for quorum calls. As for business coming to a halt, that is not true.

The NEW rules of filibuster (thanks to Senator Byrd back when) allows for dual tracking. Only the filibustered item/bill is stalled but OTHER business can continue. That is a change from the original rules.

The pre-Byrd rules had it thus (roughly):

Filibusters involved senators actually speaking for as long as they cared (or could tolerate) on the floor of the senate. Twice. Cloture could be sought (the number of votes required changed over the years so it has never been a hard number) but if it failed, then the filibuster continued UNTIL each filibustering senator had done his thing on the floor TWICE and twice only. After that, even without a cloture vote, the bill (or nominee) would go to the floor for a simply majority vote.

Under the old rules ALL senate business came to a halt.

These rules are why filibusters were rare. It was Byrd with his "innovations" that made them an every day occurance. This needs to change but it cannot without 67 votes (at this moment). They can be changed at the start of the next congress without the 67 votes. Given that, what Reid can do is go as far as he can with the present crappy rules and actually force GOPers to stand on the floor and yammer until they crap their pants, collapse from hunger, lose their voice, or cry. Boo-hoo that this also means that Democrap senators have to hang around for quorum calls and such (instead of heading off to bang their pages).

Posted by: Praedor Atrebates on January 22, 2010 at 12:23 PM | PERMALINK

The filibuster has a singular purpose: To prolong debate as long as a Senator has something to discuss regarding a bill. It was never intended as a bulwark against the tyranny of the majority. We already have those protections: The Bill of Rights, the Courts, and the 6-year Senatorial term already protect against hot-headed legislators getting swept up in the heat of the moment and attacking minority factions.

Yes, proper use of the filibuster would have protected against Alito and Roberts, but that is a weak argument, IMHO.

Posted by: square1 on January 22, 2010 at 12:28 PM | PERMALINK

Let's not forget that the Dems HAD enough votes to break a filibuster as recently as Monday, but couldn't get a HCR bill through during the entire last year. Is that the fault of the Republicans or is there something wrong with the Congressional Democrats and/or their leaders?

IOW, I think you're barking up the wrong tree. Sure, there are plenty of reasons to question a 60-vote requirement for cloture as well as a phony filibuster that doesn't involve cots and amphetamines. But the real impediment to Obama's agenda ISN'T procedural, but substantive. Simply put, the country doesn't like it. He and his supporters need to do a better job devising legislation that's acceptable to the public and then selling it.

Posted by: Conrad on January 22, 2010 at 12:31 PM | PERMALINK

Conrad, I am not positing the end of faux filibusters just for the healthcare crap. I want it in general because ALL bills of any import are now faux filibustered by the GOP. And why not? It is literally painless to do!

It's gotta hurt again so that it is only rarely used rather than being the first weapon drawn.

Posted by: Praedor Atrebates on January 22, 2010 at 12:34 PM | PERMALINK

Why don't the Democrats pick a popular bill like Wall Street reform and then get 50 cots and force the Republicans to talk and force CSPAN to cover it?

I understand that you need at least 49 Democrats and only 2 Republicans but it is still doable.

Show the world what a bunch of obstructionists actually look like.

Posted by: neil wilson on January 22, 2010 at 12:37 PM | PERMALINK

Sen. Harkin’s effort is well-intentioned, ineffectual window dressing and will most certainly end in failure…what Steve LeBonne just outlined is the way to go…the new meme that Obama and his allies must prioritize and articulate is that the Senate is dysfunctional and must reform its rules if it is to carry out the people’s business…if necessary, let Joe Biden serve as President of the Senate and be the standard bearer here so as to least offend separation of powers purists, and let him and 50 semi-cognizant allies in the Senate (if he can find them) effect this change of rules…

Posted by: ricardo on January 22, 2010 at 12:38 PM | PERMALINK

I'm with Ross Best - the public doesn't want to understand the workings of government: that's the job of government. The public doesn't ask legislators to learn how to wait tables, roll steel, make tires or package cold medicine - that's the public's job. As well, the public is too busy or too lazy to understand details like the filibuster. It's not beyond their intellectual capacity (in most cases), they just don't want to be bothered. They want to be told that everything is going to be all right, that the United States is still Number One and that better times are just around the corner. That's what the Republicans tell them. Nobody ever seems to remember that it was a lie last time.

Posted by: Mark on January 22, 2010 at 12:39 PM | PERMALINK

Voters reward legislators and political parties that do good things. The filibuster (and holds) perverts the Constitution, and is preventing Democrats from passing some of the most important social legislation since FDR's first two terms.

I'm with Steve: let's have a return to majority rule.

The House should start sending progressive legislation to the Senate. Harry Ried should start forcing the GOP to read the telephone book 24 hours a day, and remind the voters who the obstructionists and reactionaries are.

If Democrats show some spine and good sense on this, they won't lose their majorities.

Posted by: James Conner on January 22, 2010 at 12:39 PM | PERMALINK

They also need to enact legislation time-limiting holds puts on nominees who successfully make it out of committee. There should be a 30 day limit if a Senator wants additional questions answered, and after that, a vote is scheduled. What happened to Erroll Southers is just immoral, and puts the country at risk.

Posted by: sue on January 22, 2010 at 12:46 PM | PERMALINK

Sue: agreed. A clear means of terminating bogus "holds" is needed as well as reform of filibusters.

Posted by: Praedor Atrebates on January 22, 2010 at 12:48 PM | PERMALINK

Dems can't even force the GOP to actually filibuster on the floor. Does anyone seriously think Harry Reid will spend time talking about abolishing the filibuster?

Enough debates. Pass something already, via reconciliation or whatever.

Posted by: Ohioan on January 22, 2010 at 12:48 PM | PERMALINK

The House needs to start passing must-pass appropriatons, like the Defense bill, or items like raising the debt ceiling, with changes to the Senate rules included in them.

The Senate doesn't need 67 votes if its in the law.

Posted by: Chris on January 22, 2010 at 12:49 PM | PERMALINK

Beating a dead filly

Reform isn't going to happen.
Period.

Here is why:

Corporate media won't pick this story up and broadcast it at sufficient power to make fire from the tendrils of smoke. And there is a good reason why Corporate media won't do that: Most of their corporate boards have a preponderance of republicans. These people don't shoot themselves in the foot. At least not on purpose.

Posted by: koreyel on January 22, 2010 at 12:51 PM | PERMALINK

The filibuster wouldn't be a problem now, except that the "World's Greatest Deliberative Body" (TM) decided that an actual filibuster -- with senators standing at the podium, reading names out of the phone book at 3 a.m. -- was, well, hard, and settled on a phony procedural form of the filibuster instead, which doesn't require members to actually do anything.

Chris wrote: "The Senate doesn't need 67 votes[to remove the filibuster] if its in the law."

Not true. Such a law would be clearly unconstitutional, as that document specifies that each house sets its own rules.

Posted by: Snarky Bastard on January 22, 2010 at 1:15 PM | PERMALINK

If Democrats don't break the filibuster NOW, they're toast with respect to passing and reform of health care, greenhouse gas emission, banking practices, whatever. And don't give me BS about "can only do at beginning of Senate sessions -- or needing 67 votes". The nuclear option is available any time for 50 Senate Dems + the VP that have at least one set of cojones to share among them. Maybe Pelosi has an extra pair to spare?

And dont give me BS about the filibuster protecting liberal values in the future.. when has it in the past?? And dont give me BS about there being 41 Dems in the 2010 or 2012 Senate. That's a wet-dream for Teabaggers only.

If there are not 50 votes to end a filibuster, then passing bills or amendments to really reform or improve health care, climate change, judicial nominations, whatever, are going to be dysfunctional exercises in "pass inadequate bills and pronounce those bills as ground-breaking". And hope the American voters don’t notice. Voters on average may be generally uninformed, but they are not THAT dumb.

In health care and other issues, Obama and Senate Democrats , most Pundits, and many Broderesque -bloggers constantly reinforce a meme that liberal or progressive Democrats are easily rolled by those making intransigent demands. This reinforces a long-standing meme that Progressives/Liberals are wimps, wusses, chumps-- pick your term. McCain, Coker, DeMint and most Republicans may be batshit bonkers pushing insane ideologically-based solutions, but they appear very willing to take a lot of flack to push their agenda. With respect to (say) Iran, do you vote for a military solution that probably wont work advocated by insane ideologues who will stick to their guns-- or a more nuanced position advocated by those who will fold at the slightest pushback?? And your surprised that lots of voters chose the former??

Posted by: gdb on January 22, 2010 at 1:54 PM | PERMALINK

i agree with snarky bastard. seems to me it would be much easier to toss harry out and replace him with someone that actually would enjoy using the power he has. same with nancy.

Posted by: walnut filch on January 22, 2010 at 1:55 PM | PERMALINK

I'd like to see filibusters remain. The Repubs might be back in office one day.

But I would like to limit their use. Maybe each senator should only get one filibuster per six year term. You can stop one piece of legislation, that's it, unless you're re-elected. That would give the minority party up to 49 filibusters every 6 years, which sounds more than reasonable.

Posted by: Remus Shepherd on January 22, 2010 at 2:21 PM | PERMALINK

Steve,

can you direct me to a good overview of how the senate majority party can change the chamber rules? so, in other words, short of introducing legislation like harkin's, could harry reid with 50+1 have amended the senate rules at the beginning of the '09 session to revamp the filibuster?

Posted by: mencken on January 22, 2010 at 3:40 PM | PERMALINK

While I agree that a super majority for every Senate vote is ridiculous and counter to everything the Founders intended, there is a place for the super majority. That is on the Supreme Court in cases where precedence is overruled. The Supreme Court's small size coupled with lifelong positions mean that quite often the majority of the Court is not reflective of the views of the vast majority of the people or legal scholars. To protect the people, to put teeth into precedent, and to provide stability in the country, a super majority makes sense on the Supreme Court. Only one problem -- who decides that precedent is at stake.

Posted by: Regis Reynolds on January 22, 2010 at 4:29 PM | PERMALINK

I think the thing to do would be to eliminate the "faux filibuster" while changing from a requirement of 60 votes to proceed to a requirement of 40 votes to continue debate?

That way, a group of 40 senators that was committed enough to stay on the floor and keep things going could still filibuster, but the onus for keeping people present would fall on the group that's trying to obstruct passage rather than the group that's trying to pass the bill. And absences would effectively count in favor of cloture rather than in opposition.


Posted by: Dirty Davey on January 22, 2010 at 4:34 PM | PERMALINK

How about framing it as "up or down votes." Remember that one?

Posted by: Paul in NC on January 22, 2010 at 4:36 PM | PERMALINK

neil b: BTW, what's this about not needing 67 votes "at the beginning of a session"?! We need to hear more about that, see if it's an angle.

The last 15 times it was explained to you wasn't enough, Socrates?

mencken: can you direct me to a good overview of how the senate majority party can change the chamber rules? so, in other words, short of introducing legislation like harkin's, could harry reid with 50+1 have amended the senate rules at the beginning of the '09 session to revamp the filibuster?

Yes, he could have and he (or whoever's maj leader then) can do it in January 2011. See Senate Rule XXII. Note that this is not what is referred to as the "nuclear option," the legitimacy of which is much disputed. Barring the change at the beginning of the session or use of the nuclear option, changing Senate rules in mid-session requires a 2/3 vote of those present.

Posted by: allen on January 22, 2010 at 5:08 PM | PERMALINK

The nuclear option can be done at any time, there is no "legitimacy dispute". It requires breaking a Senate tradition by 50 Senators plus the VP acting as Parliamentarian in his role as President of the Senate. Guess what: the General Public cares less about "Senate Rules" or whether heatl care reform passes a margin of 1 or 50 votes.

Posted by: gdb on January 22, 2010 at 5:16 PM | PERMALINK

The nuclear option can be done at any time, there is no "legitimacy dispute".

Well, yes, there is, given that it isn't provided for in Senate rules and was born of a parliamentary opinion.

Moving from the question of legitimacy to the question of advisability, I don't suppose that you're even aware that it cannot be invoked for only the legislation in question, but instead changes precedent entirely? If you did know that, I don't suppose you're bright enough to figure out what that means?

Posted by: allen on January 22, 2010 at 5:43 PM | PERMALINK

Allen - I mean, we need to hear more discussion about doing it. The fact that it is true is not enough to entice Dems to use it. I don't know if you're the same one I had to explain earlier, why I bring up this kind of point - but calling me "Socrates" shows you may have a clue.

Posted by: neil b on January 24, 2010 at 8:48 AM | PERMALINK
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