Editore"s Note
Tilting at Windmills

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February 11, 2010

JOE KNOWS THE PROBLEM.... Vice President Joe Biden appeared on CNN's "Larry King Live" last night, and there was a noteworthy exchange that stood out.

KING: You're the majority party.

BIDEN: We are the majority party.

KING: You've got all of the balls in your court.

BIDEN: Well -- well, that's true, Larry, except take a look at that. I was a senator for 36 years. I got there when I was 29 years old. So I've been through seven presidents -- eight now. And I've never seen a time when the operating norm to get anything passed was a super majority of 60 votes. No matter what -- no matter what the bill is, it's filibustered. It's required to get 60 votes.

That's true. Indeed, I completely share Biden's frustration. It seems overly simplistic, and everyone has a "if it weren't for (fill in the blank), everything would be fine," but the single biggest obstacle to a functioning and effective federal government right now is the Republicans' unprecedented abuse of filibuster rules. If the Senate were allowed to vote on legislation by majority rule -- the way the chamber was designed to operate, the way the chamber used to operate -- this Congress would be among the most successful in generations.

That's really all it takes -- majority rule in the Senate. Its absence is the one unnecessary, undemocratic, and arguably unconstitutional hurdle that prevents the political process from working.

The question is what Biden and/or anyone else intends to do about it. Dems can and should shine a light on the truly outrageous obstructionism that has no precedent in American history. It's a scandal and a disgrace, which severely undermines our political system, but most of the country has no idea that it's happening.

But it's not enough. If Dems go into the midterms saying, "Well, we would have governed, but Republicans wouldn't let us," voters won't be impressed. The country expects results. If that means more use of reconciliation, or execution of the nuclear option, the avenues have to at least be explored. Complaints, even accurate ones, aren't enough.

Steve Benen 9:25 AM Permalink | Trackbacks | Comments (33)

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Comments

Gee, Steve, I think yer right... the citizenry won't be impressed by the Dims blaming the Repugnants for obstructionism.

Gee, maybe you or Biden should tell them that. Maybe they'll think of something to do about it.

They got about 6 months...

(I got a bridge... goes from Manhattan eastward...)

Posted by: neill on February 11, 2010 at 9:27 AM | PERMALINK

The upshot is that for all intents and purposes, at least for any comparison to the past, as long as the filibuster rule stays as it is, the Senate is equivalent to 51-49 Republican.

Posted by: MSR on February 11, 2010 at 9:32 AM | PERMALINK

Sometimes you have to abuse the abuser. Obama should make all the recess appointments he needs and pass everything he can through reconciliation.

There will be a lot of smoke and noise for a few weeks, then everyone will move on to the next "crisis." And if they don't? I'de love to have a debate with the GOP on who is the greater abuser of parliamentary procedure.

People only remember what you do or don't do if it impacts them directly. Pass HCR. Pass real finance reform. Then go back and fix HCR.

Posted by: bdop4 on February 11, 2010 at 9:33 AM | PERMALINK

this Congress would be among the most successful in generations.

And that would make the Republicans look bad, wouldn't it now? Of COURSE they're playing their cards this way--it's the only hand they've got. Pass some damned legislation now and you'll be fine in November. Piss and moan about it and you're going to lose, Dems!

Posted by: Michigoose on February 11, 2010 at 9:39 AM | PERMALINK

The Democratic senators seem more concerned with preserving their senatorial privileges than they are with governing.

Their privileges will be gone if they are not re-elected.

Colin

Posted by: Colin on February 11, 2010 at 9:48 AM | PERMALINK

I wonder when, if ever, Dems will realize voters like them much more when they're willing to drop the gloves and fight for what they believe in. Repubs will fight, even for things they don't believe. It's how they operate. Voters reward them fairly regularly for this.

Posted by: JoeW on February 11, 2010 at 9:51 AM | PERMALINK

. . . but the single biggest obstacle to a functioning and effective federal government right now is the Republicans' unprecedented abuse of filibuster rules.

No, it's a symptom of the real problem -- the Democrats' complete unwillingness to stand up and fight for their party's principles.

And the problem has two roots:

Too many Democrats lack the spine to say with conviction, "We're right and you're wrong and I'm going to fight for what's right even if it costs me the next election."

And too many Democrats don't actually believe in what their party purports to support, but stay with the Democrats because that's what is best for their career.

The Republicans' abuse of the filibuster is merely them using the tool that is convenient, just like their abuse of reconciliation when they were the majority and their abuse of voters' registrations whenever they can get away with it.

Posted by: SteveT on February 11, 2010 at 9:57 AM | PERMALINK

We are definitely seeing some trial balloons being floated - and it's a short trial run - for the White House taking the reins here. The initial stab at "changing Washington" is something that Bush II talked about (and no I'm not drawing any broader equivalency), and this is no different, except Obama hung it out there a little longer.

Getting things done will be satisfying though. As far as backlash, just as theeatening filibusters brings net political gain just by permitting the minority to muck things up, so too will the efficient use of reconciliation, by racking up solutions and rendering hard-right Repubs into an amusing puppet show.

The danger is that the WH and Dems start exercising the prerogatives of reconciliation and recess appointments (nuclear option meh), and then the left wing starts blocking WH initiatives and hurling epthets, and it's a whole new circus that discredits the Dems. A certain amount of that is conscientious and good, but I am concerned by the Krugman view of the WH as a true blue adversary that must be brought to heel lest it betray Dem principles. Double meh.

Posted by: anselm on February 11, 2010 at 9:58 AM | PERMALINK

Steve,
The Senate is not a democratic institution, and wasn't designed to function as one. Until the 17th Amendment passed in the early 1900s, Senators weren't even directly elected by the people; rather, state legislatures chose Senators. It's clear from any reading of the Constitution that the Senate was intended to slow down the process and make it more deliberative, not to merely ratify the will of the House and the executive.

I'm also not sure how Senate Rule 22 is unconstitutional. It's a rule of Senate procedure, not one that implicates fundamental rights or separation of powers issues. I've seen this argument raised elsewhere and it's fairly dubious.

Posted by: abj on February 11, 2010 at 9:58 AM | PERMALINK

Joe and Harry need to walk up to McConnell---right now---and declare thus:

Either you knock off the supermajority crap right now, or we go nuclear on you as of tomorrow morning. We will eliminate your ability to obstruct legislation; we will roll back every last inch of your repressionist profitmongery; we will annihilate your ability to blur reality and the facts in front of the American voter. In short---we will destroy the GOP forever.

Game.

Set.

Match.

Posted by: S. Waybright on February 11, 2010 at 10:01 AM | PERMALINK

Let 'em filibuster, in fact let 'em try to filibuster everything. It will expose them as the party of "do nothing" in the same way that Gingrich's govt. shutdown backfired in the Clinton era.

Posted by: Andys120 on February 11, 2010 at 10:03 AM | PERMALINK

"Obama should make all the recess appointments he needs and pass everything he can through reconciliation."

The recess appointment is time-limited, and there are actually very few items that can be passed through reconciliation. That process is limited to budget and spending, and was instigated to prevent a government shutdown. Even within that process are many procedural steps which require sixty votes to proceed. The media keeps presenting it as a panacea, but such is simply not the case.

The problem is not the sixty vote rule, but the Republican abuse of it. If someone is abusing rules, you do not abolish useful and necessary rules to accommodate the abuser; it is necessary to correct the abuse. If we abolish the rule, the day will come when Republicans are in the majority and we will bitterly wish we had that rule back.

Posted by: Bill H on February 11, 2010 at 10:04 AM | PERMALINK

Senator Ben Nelson is amongst the sterling class of the nodding hypocrite crew . The friction from facts keeps their frisson keen . Swooping upon any notion related to repeatable , provable forms of process including their own idyllic dysfunction like perverted carrion cleaners , they have evolved from boot licks to triumphalist maniacs . The next step in their pitiful evolution will see the development of oversized mandibles , with tiny brain pans and arms giving way to achieve oversized vocal abilities .

Posted by: FRP on February 11, 2010 at 10:05 AM | PERMALINK

I'm also not sure how Senate Rule 22 is unconstitutional. It's a rule of Senate procedure, not one that implicates fundamental rights or separation of powers issues. I've seen this argument raised elsewhere and it's fairly dubious.

Let's take it to the limit case. Let's suppose the Senate, in a fit of madness, were to change its rules to mandate unanimity on all legislation and subsequent rule changes. Would it be legitimate for such a Senate to not only tie its own hands thus, but to tie the hands of all future Senates? Is that rational, or consistent with the system of government outlined in the constitution?

Posted by: dob on February 11, 2010 at 10:08 AM | PERMALINK

It won't change until Republicans pay a serious, measurable political price for these actions. Compromise, engagement, outreach won't help, except as propaganda. Outrage, publicity, repetition might help, but ultimately won't matter to these guys.

They care only about power. So the only way to change things is to show them convincingly that their actions are taking them further away from power.

I know we've heard this before about 2004, 2006, 2008, but the upcoming midterms really are shaping up as crucial for America's future as a functioning democracy. And given the widespread unpopularity of Republican candidates and ideas, the Dems are potentially in a stronger position than the conventional wisdom now claims. If Democrats don't get off their asses and make serious efforts to win these elections - not contain their losses, but win - this nonsense will only get worse.

Posted by: Basilisc on February 11, 2010 at 10:13 AM | PERMALINK

The recess appointment is time-limited, and there are actually very few items that can be passed through reconciliation. That process is limited to budget and spending, and was instigated to prevent a government shutdown. Even within that process are many procedural steps which require sixty votes to proceed. The media keeps presenting it as a panacea, but such is simply not the case.

Who rules on if a given legislation can be passed via reconciliation? The Senate parliamentarian, who's appointed by the majority party?

I say play hardball. Pass everything via reconciliation. If the parliamentarian won't play ball, fire him and hire a more compliant one. The Republicans will scream about dirty Chicago political tricks... just like they already are. This is a downside for the Republicans' cranking up the noise machine to 11 like they have: honest complaints can be lost in the noise.

The Senate Democrats need to pick a fight and, this is the key bit, win it.

Posted by: dob on February 11, 2010 at 10:14 AM | PERMALINK

King: You've got all the balls in your court.

Democrats with balls? Yeah, we wish.

Posted by: mlou on February 11, 2010 at 10:17 AM | PERMALINK

SteveT, I agree, except that I don't believe the problem is so much conflict between "what's right" and "what will get me re-elected". First, I take a pretty utilitarian view of what's right; corollary: what's right depends on what's possible, and there may be different avenues.

The problem is more a lack of safe ground for moderates. While this problem is greater for Republicans and will sink them in the medium term, we've got it too. There's too many right-leaning Dems, the harder left dems are a bit paranoid about anyone to their right, and the ones that are left aren't getting solid cover from the WH, because the WH's investment in bipartisanship has replaced ACTUAL POLICY GOALS. Consider how damagin that is (and how traceable to Emanuel, but that's another conversation). (In that vein, I have read some good pieces on how the Obama admin learned the wrong "lessons" from Clinton on healthcare, and took them too far.)

The Dems are diverse, and they are not going to stop caring about electability no matter how much we cluck at them! So to now work on laying out some legislation and re-stocking appointed positions with democratic appeal, and gathering in the flanks of the Dems in Congress - this (a) basically IS bipartisanship :), and (b) will be effective, and (c) will get most of these folks re-elected.

Posted by: anselm on February 11, 2010 at 10:17 AM | PERMALINK

"But it's not enough. If Dems go into the midterms saying, 'Well, we would have governed, but Republicans wouldn't let us,' voters won't be impressed."
------------------------

Steve, I'm a voter, and it won't take until the midterms. I'm already unimpressed, to put it gently, and I've been unimpressed for most of the time since the Democrats took the 2006 mid-terms.

We need more than a Democratic leadership-in-name, we need some actual leadership, and we've needed it for well over the last three years.

Obama having put bipartisanship above policy, above chances in future elections, and above any visible concern for promoting the general welfare of the country is nothing new -- although it's a daily astonishment to watch someone who has been awake, alert, and apparently oriented during the last decade, who seems to hold as his highest truth that bipartisanship not only can work, but is the only sensible way forward.

Ship's sailed. It was already "not enough" quite awhile ago.

Posted by: Fleas correct the era on February 11, 2010 at 10:19 AM | PERMALINK

Joe W is right on the money. Voters don't respect the appearance of weakness.

In addition, several filibusters have been broken recently. I know seating Brown will affect that, but I believe it's important to make the GOP actually filibuster important legislation. Make them do it with the C-Span cameras rolling. Then have every Dem in the leadership stand in front of the TV cameras and say "we want to improve your lives. The GOP is stopping us."

I believe the procedural stuff can be explained in a way that won't make viewers eyes glaze over and that not doing so is detrimental.

I think doing so would force the media coverage to shift toward us. Even people like Matt Laurer are showing incredulity at some of the claims the GOP is making, so it's started already.

Posted by: zak822 on February 11, 2010 at 10:36 AM | PERMALINK

Biden should make some history and become the first VP since John Adams to throw his weight around as Senate President.

Posted by: Grumpy on February 11, 2010 at 10:37 AM | PERMALINK

This isn't complicated. It is classic psychopathic bully stuff. When the Republicans had the majority, but not a filibuster proof majority, they threatened the nuclear option and the Democrats cowared before the threat afraid of losing their privilege. The bully took note of this cowardly behavior, as bullies always do, and when they lost the majority they now understood that they could simply filibuster everything and the Democrats would end up looking ridiculous because they would remain too terrified to do anything about it that would require giving up their privilege.

Posted by: SW on February 11, 2010 at 10:43 AM | PERMALINK

>"The Democratic senators seem more concerned with preserving their senatorial privileges than they are with governing."

Bingo. That said... the repubicans won't hesitate to revoke that rule if they become the majority party. Not for one minute.

Posted by: Buford on February 11, 2010 at 10:45 AM | PERMALINK

Well, since the rule change contemplated favors the majority I wouldn't expect them to change it anyway, but if they did it would be completely out of character.

Posted by: SW on February 11, 2010 at 10:58 AM | PERMALINK

"No, it's a symptom of the real problem -- the Democrats' complete unwillingness to stand up and fight for their party's principles."

Exactly.

Does anyone here really think that no previous congress considered this kind of thing? Really?

Of course they did. They didn't do it because there was a credible threat of the majority party taking an obstructing minority to the woodshed with regards to public opinion.

But these dems are purely pussies unwilling to fight for anything that they claim to believe in (although they do get quite scrappy when it comes to telling their own base to shut up and like big business give aways).

Posted by: Tlaloc on February 11, 2010 at 10:59 AM | PERMALINK

Steve, I think it's time for a new feature---"Filibuster Friday". Just as you have "This Week In God", daily reports, campaign roundups, etc. as regular features of your blog, you would do a real public service (in addition to your existing public services) by adding a weekly "Filibuster Friday" feature.

In addition to posts like this one about Biden's interview, you could:

*summarize the week's news on Senate filibusters (and holds?),

*highlight efforts (like those of Harkin and Udall) to change the Senate's rules,

*answer questions about the history and evolution of the filibuster and,

*link to other useful sites, including those with actions your readers can take.

What do you (and others) think?

Posted by: massappeal on February 11, 2010 at 11:36 AM | PERMALINK

I can hardly claim to be a scholar, but I do know a thing or two. The Constitution calls for a supermajority in the Senate for only a couple of specific situations. Which makes it pretty darn clear the "original intent" of the Founders was that majority rule hold sway otherwise. It seems to me that if the Senate's rules interfere with that, they are on their face unconstitutional.

I would also point out that this sort of paralysis was exactly the reason the Founders scrapped the Articles of Confederation in the first place. But it probably marks me as an elitist marxist nazi for even knowing about the Articles in the first place...

Posted by: Roddy McCorley on February 11, 2010 at 11:36 AM | PERMALINK

Voters don't respect the appearance of weakness.

True. But the problem is that there is a double-digit number of Democratic senators who run on their abilities to thwart what the other Democrats want. They don't want to crusade for liberal policy, they want to posture _against_ liberal policy, because they have to prove to the folks back home that they're not liberals. They _want_ to hinder and impede things, which contributes to the perception of weakness and disunity.

So "Democrats" know that being seen as strong and active is better than weak and inept. But a cluster of specific Democrats see themselves as having a vested interest that trumps that, which is their power to brake and moderate the direction of the rest of the party. And if you purge them, Republicans take most of those seats, and then you have _complete_ stalemate.

Posted by: FlipYrWhig on February 11, 2010 at 11:38 AM | PERMALINK

massappeal : Steve, I think it's time for a new feature---"Filibuster Friday".

GREAT idea. This would be fantastic. Push it a little and see if it leaps from blog to blog, then to Olbermann and Maddow, and then... well... it might not go beyond that, but any consciousness-raising would be tremendous.

Posted by: FlipYrWhig on February 11, 2010 at 11:40 AM | PERMALINK

Maybe the dems should have thought about filibusters before they used them so much. Quit whining and put forth something that the majority of the people want.

Posted by: dude on February 11, 2010 at 11:59 AM | PERMALINK

"But it's not enough. If Dems go into the midterms saying, "Well, we would have governed, but Republicans wouldn't let us," voters won't be impressed. The country expects results. If that means more use of reconciliation, or execution of the nuclear option, the avenues have to at least be explored. Complaints, even accurate ones, aren't enough."

Right on, Steve. VP Biden is saying Democrats will continue to be spineless and will not use these tools. Now there really is No Hope with this majority.the Dems have sqandered a whole year and will continue to squander another year.

Posted by: MLJohnston on February 11, 2010 at 12:00 PM | PERMALINK

Apparently VP Rockefeller helped Senator Mondale reduce the cloture requirement down to 60%, so Rockefeller actually did something.

If the Republicans are abusing the Senate Rules then the Democrats (with the aid of the President of the Senate) can interpret those rules to restrict the abuse.

As a larger reform, the concept of "unanimous consent" is no longer workable as the basic concept underlying the Senate Rules --- it's an affectation that needs to be discarded.

Posted by: H-Bob on February 11, 2010 at 12:22 PM | PERMALINK

Two words: Constitutional Option

Posted by: km on February 11, 2010 at 4:09 PM | PERMALINK
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