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Tilting at Windmills

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February 11, 2010

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

About a month ago, the progressive Iowan signaled his interest in trying again. In about 20 minutes, Harkin and his new co-sponsor will kick off a new effort to allow the legislative branch of the government to function again. A press statement from Harkin's office reads:

Senator Tom Harkin (D-IA) will be joined by Senator Jeanne Shaheen (D-NH) at a press conference this afternoon following the introduction of their bill to reform Senate rules that have been abused by the minority to create record gridlock. Senator Harkin introduced a similar bill in 1995, when the Democratic Party was in the minority.

"In an economic climate that has been devastating for Americans, it's time for the Senate to get moving on a jobs bill, on financial regulatory reform, and on health care," Senator Harkin said. "The minority party has ground Senate business to a halt by abusing the rules, and it's time to reform the process."

In the 1950s, there was an average of one filibuster per Congress. Last Congress, motions were filed to end filibusters a record 139 times, and they continue at a similar pace through 2009 (67 cloture motions last year).

If approved, the measure would not do away with extended debate altogether. 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.

Does Harkin/Shaheen stand much of a chance? It's best to keep expectations low -- it would take 67 votes to approve Harkin's measure, which makes it extremely unlikely that this will succeed. But I can't wait to see what kind of support this generates, and exactly who does (and does not) sign on as co-sponsors.

Also note, the existence of the legislation creates an opportunity for a larger public debate. Most of the public assumes that if a majority of the House, a majority of the Senate, and the White House all support a piece of legislation, the bill becomes law -- unaware of the fact that this is no longer the case. The more attention Harkin/Shaheen gets, the better the chance of informing the public.

Likewise, the public also doesn't realize that abuse has gotten completely out of control -- from 1949 to 1970, there were 30 cloture votes. In just 2009, there were 39. That's insane.

My suggestion to Harkin's office is 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. This is the way the Senate was designed to operate; this is the way the Senate used to operate.

That sounds fair, doesn't it?

Steve Benen 2:55 PM Permalink | Trackbacks | Comments (36)

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I'd prefer that Joe Biden show up tomorrow morning, call for a vote on on the filibuster, and ram majority rule down their throats. Throw all the stupid rules out all at once and be done with it. Let'em squeal.

Posted by: pinson on February 11, 2010 at 3:04 PM | PERMALINK

Senate Minority Leader Mitch McConnell announced that Republicans would oppose Harkin's bill because "more than 230 percent of the American people" opposed the measure. He added, "If the Democrats want real reform then they should be bipartisan and introduce a bill that limits the filibuster only when Republicans are in the majority."

Posted by: SteveT on February 11, 2010 at 3:11 PM | PERMALINK

I still maintain that the filibuster does not need to be eliminated outright. It does serve a purpose. The key is to change it back to the pre-1970s rules that made the minority party actually have to filibuster. Made them hold open the Senate and keep other business from happening.

Now the entire burden of the filibuster is on the majority party to hold a quorum and have successive 'cloture votes' while the minoity party only has to threaten to maintain debate. They don't even need to be there anymore.

It's ridiculous. The filibuster was meant to be used sparingly as a method to keep the minority from being railroaded on issues they felt very strongly about. Not as a standard tool that prevents the Senate from doing anything.

Posted by: thorin-1 on February 11, 2010 at 3:17 PM | PERMALINK

You abuse it, you lose it.

Posted by: T-Rex on February 11, 2010 at 3:23 PM | PERMALINK

I agree with thorin-1, but eliminating the filibuster altogether is the next best idea.

My guess is that there will be at least 41 "no" votes on Harkin/Shaheen, assuming it even gets to the floor.

Posted by: Cujo359 on February 11, 2010 at 3:24 PM | PERMALINK

Again, if the filibuster were used properly, that is, prolonged debate were required and conducted, there would be far fewer of them and they would be used sparingly and only in the most extreme instances.

Instead, modern filibusters are in name only. Is it any wonder they are abused? Doing away altogether with this procedure would absolutely destroy what little is left of the Republic.

Posted by: getaclue on February 11, 2010 at 3:26 PM | PERMALINK

Political science 101: Clint Eastwood to Gene Hackman in the movie Unforgiven- "Fair's got nothing to do with it".

Posted by: JW on February 11, 2010 at 3:30 PM | PERMALINK

How about calling it 'one man, one vote' since the way things stand each Republican vote equals 1.5 Democratic votes.

Posted by: eightnine2718281828mu5 on February 11, 2010 at 3:31 PM | PERMALINK

Thorin1 nailed it.

Posted by: Cazart on February 11, 2010 at 3:37 PM | PERMALINK

Of course it will fail. The point is to bring the issue to public attention, and start generating public pressure for a change.

Of course, the Democratic Party has proved to be spectacularly inept at framing issues, even when they hold all the governmental and legislative cards. I hardly expect this to be any different.

Posted by: Gummo on February 11, 2010 at 3:38 PM | PERMALINK


51/100 = larger than 50/100

when is a majority not enough to trump a minority?

We are clearly witnessing the most extreme

abuses of power, obstrucing the very fabric of our law-making.

It is marvelous to ponder how a DC snow storm gets as much done as the day to day snow jobs.

Posted by: Tom Nicolson on February 11, 2010 at 3:50 PM | PERMALINK

Catch 67

...it would take 67 votes to approve Harkin's measure...

How to tell things are foxed-up-beyond-all-repair:

When it takes a two-thirds super-majority to undo a six-tenths super-majority to allow a chance for a majority to rule again. Insane. The world's most deliberative body obviously enjoys navel gazing...

Posted by: koreyel on February 11, 2010 at 4:10 PM | PERMALINK

I prefer the Joe Biden,"We don't need no stinking filibuster here" approach like pinson. The Republicans only understand raw power. They see negotiation and bipartisanship as weak. It's pretty tough to hit fade-away jumpers from half court, isn't it, Obama?

Posted by: Th on February 11, 2010 at 4:10 PM | PERMALINK

I do not understand why the Harkin-Shaheen proposal would require 67 votes to pass. That's the threshold for a constitutional amendment, for pete's sake.

What was Bill Frist jabbering about just a few years ago about the 'nuclear option?' I thought *that* was about eliminating cloture requirements by a majority vote if he couldn't get an "up or down" on Bush judicial nominations. (Frist of course had it exactly backwards, proposing to keep the 60-vote requirement for ordinary legislation, which could easily be fixed in subsequent years if problems arose, but wanting a bare-majority vote to give (extremist) federal judge a lifetime appointment.)

What happened to that nuclear option, and why aren't Democrats . . . oh, never mind.

Posted by: Confused on February 11, 2010 at 4:10 PM | PERMALINK

The "make-em-filibuster" tactic will not work. It allows the obstructionist minority to have an unlimited microphone to argue against the bill in question. And it lets them take the position of the embattled minority fighting against "the machine." It's heroic. A debate on Health Care Reform would be a non-stop stream of GOP Senators talking about government takeover of the healthcare industry, death panels, and the glories of the present health care system.

No, the rules have to be changed, either by a 67 vote measure, or by a ruling from the chair which is affirmed by a majority of the Senate as being a precedent. I don't think that there are 51 votes yet for this, so everybody get to work.

Posted by: tom in ma on February 11, 2010 at 4:14 PM | PERMALINK

All I can think is, imagine what George W. Bush would have been able to do with this tool Harkin proposes.

Posted by: mcc on February 11, 2010 at 4:45 PM | PERMALINK

According to a WaPo update, the effort has been nixed by - you guessed it (probably) - Harry Reid.

Posted by: Mark on February 11, 2010 at 4:49 PM | PERMALINK

67 votes seems so far away. So isn't Tom Udall's approach a bit more practical?


Posted by: DanSF on February 11, 2010 at 5:24 PM | PERMALINK

This is fair, this is necessary for governing to be done.

It is also exactly what the Republicans want.

The plea to 'restore majority rule' will be turned into 'oppress the minority!' by right-wing shrieking. The filibuster-less senate will still not function, as there are dozen other ways to stall and stop legislation. And when the Repubs get back into power they will wield even more power than before.

Make no mistake: The Republicans *want* the senate to lose the filibuster. They just don't want to take the PR hit for doing it themselves. So they're forcing Dems to do it for them. It's a trap.

But a trap that, I must admit, might be our only chance of getting a government that at least functions.

Posted by: Remus Shepherd on February 11, 2010 at 5:30 PM | PERMALINK

It takes 60 votes to change the filibuster rule....(because you can filibuster changes to the filibuster.)

It's a senate rule not a law. Why would you need 67.

That's simply not true.

Posted by: Qs on February 11, 2010 at 5:57 PM | PERMALINK

It does not need 67 votes,they just pretend that it does. No legislature can control a future one, as the courts have ruled. A rule says in needs that many,but they are not really bound by the rule.

Posted by: Scott on February 11, 2010 at 6:08 PM | PERMALINK

"The plea to 'restore majority rule' will be turned into 'oppress the minority!' by right-wing shrieking"

Republicans might try, but it is a hard sell. People think that majority rule is the definition of democracy and will be surprised that is not how the Senate works. The Republicans will be the ones defending complicated rules. That is not the easier argument to make.

Regarding to tom in ma on's contention that "The "make-em-filibuster" tactic will not work." It would be stupid to make-em-filibuster on Health Care for the reasons you give, but that is because HCR is serious as a heart attack, and genuinely divisive. Make-em-filibuster is best done with a bill the Republicans filibuster that is both popular and insignificant. The Republicans will not look so "heroic" stopping the nation's business over an insignificant bill. They will look silly and obstructionist. Even so they would filibuster indefinitely because a defeat would be a humiliation, so the idea is not to break that filibuster.

The idea is to say in advance that the Democrats will allow no more than 3 weeks to break the filibuster. In that time it will become big news and the Republicans will look worse and worse. More importantly even Joe Schmoe will learn that the Senate has godawful rules and that the filibuster is bad. Then you go in for the kill, because then you might have 67 votes for Harkin, or a solid 50 to do the nuclear option.

The main problem with getting rid of the filibuster is that most Senators like it. If the public learns to hate it the political calculus changes. The further problem with the nuclear option is that it is nuclear. A Senator needs a lot of political cover to vote for it and widespread hatred of the filibuster is the best way to get cover.

Finally, people have discussed the nuclear option and 67 votes, but aren't Senate rules confirmed at the beginning of every session by a majority vote? Isn't that the time to change the filibuster? Where were you Harry? Yet another reason a well-planned make-em-filibuster at the end of the session might be a good idea. The Harkin Bill will likely fail, but the interest of each Senator will be to vote FOR the bill yet to have the bill fail. The bill is likely to get just under 67 votes so as many senators can climb onto a popular bandwagon as possible.

Voting FOR the Harkin bill and AGAINST a rule change at the beginning of the session is not easy to defend.

Posted by: tomtom on February 11, 2010 at 6:17 PM | PERMALINK

I'd prefer that Joe Biden show up tomorrow morning, call for a vote on on the filibuster, and ram majority rule down their throats.

It's this sort of statement that has me convinced that many of you don't give a damn about policies, or even winning or losing. It's just about fighting Republicans and making them eat turds as much as possible. And in that regard, you are no better than the people you oppose.

Hell, why bother with rules at all? Let's just have Obama declare martial law, round up every conservative in the country, and shoot them? After all, Republicans accuse us of wanting to do this anyway, so we might as well do it. Besides, they might just do it to us, so it just makes sense if we do it to them first. And then we can get the policies we want without any hassle. It makes perfect sense.

The easiest solution is always the best solution and if anyone suggests otherwise, they're just spineless centrists begging Republicans to beat us.

Posted by: Doctor Biobrain on February 11, 2010 at 6:32 PM | PERMALINK

This is the effort every progressive and patriot should put their energy behind. It is the only way to avert national collapse.

I prefer using the route of the nuclear option and doing it now though. Too much damage will have occurred by the start of the next congress. People are being destroyed by this recession and the republicans just want to milk their pain.

Posted by: wrb on February 11, 2010 at 7:35 PM | PERMALINK

"hIn U.S. politics, the nuclear option is an attempt by a majority of the United States Senate to end a filibuster by invoking a point of order to essentially declare the filibuster unconstitutional which can be decided by a simple majority, rather than seeking formal cloture with a supermajority of 60 senators. Although it is not provided for in the formal rules of the Senate, the procedure is the subject of a 1957 parliamentary opinion and has been used on several occasions since. The term was coined by Senator Trent Lott (Republican of Mississippi) in 2005;[1] prior to this it was known as the constitutional option.[2]
The maneuver was brought to prominence in 2005 when then-Majority Leader Bill Frist (Republican of Tennessee) threatened its use to end Democratic-led filibusters of judicial nominees submitted by President George W. Bush. "


Posted by: wrb on February 11, 2010 at 7:39 PM | PERMALINK

Doctor Biobrain, pinson's proposal follows the rules, just as the Republican overuse of the filibuster follows the rules. No one I see is suggesting anything outside the rules.

The problem with the nuclear option is that I very much doubt Harry Reid has 50 solid votes, because it would be VERY politically risky. The public at large has to know and hate the filibuster before a dramatic play has a chance of success.

Posted by: tomtom on February 11, 2010 at 7:41 PM | PERMALINK

The abuse of the filibuster since 2005 has changed the playing field and justified the nuclear option. What is needed now is a full court press educating the public and pressuring the senators. This is much more important than the "public option."

And if anyone thinks modern republicans won't use it the minute they next get a majority, they haven't been watching them- and being played for fools.

Posted by: wrb on February 11, 2010 at 7:47 PM | PERMALINK

Proponents of the Nuclear Option need to start persuading us that the Democrats could possibly raise 50 votes in its favor. Otherwise it is just academic bloviating.

The Nuclear Option is possible, but not until the public at large understands and dislikes a 60-vote Senate. Then politicians have political cover to make a dramatic play.

The "Constitutional Option" http://tomudall.senate.gov/?p=blog&id=383 (see DanSF above) is more of a tactical nuke, and is a more realistic option, especially if Reid & Obama put some effort this session into educating the public about the problems caused by Senate rules.

Posted by: tomtom on February 11, 2010 at 7:49 PM | PERMALINK

Republicans will always have more to gain from the filibuster than Democrats, because the filibuster is a blocking maneuver. Conservatives WANT ineffective government, so an ineffective Senate benefits them over the long run. Therefore I doubt the Republicans would trigger the Nuclear Option. They are stupid, but they are not dumb.

(Yes, yes, I know the Republicans last threatened it, but they were very careful to stipulate the filubuster should be maintained for legislation. Lott's Nuclear Option only applied to judicial nominations.)

Posted by: tomtom on February 11, 2010 at 7:54 PM | PERMALINK

gotta reforms this.

Posted by: jdos on February 11, 2010 at 8:46 PM | PERMALINK

Certainly the argument could be made (and the lawsuit initiated) which charges that some Senate rules such as filbusters and holds on nominations are unconstitutional....the one because the constitution specifies when a vote has to be over a simple majority and the Senatorial filibuster rule changes those rules and thus the Constitution without a formal amendment....

and the other because how on earth can a single Senator be allowed to single-handedly block votes on appointments for weeks and months....and worse yet, in some cases, not even come clean on who is issuing the hold...or why.

This isn't democracy.....it is more Politburo in its scope.

Posted by: dweb on February 12, 2010 at 3:31 AM | PERMALINK

How about changing the rule to parallel NFL rules on challenging a ref's decision.

Each party is allowed three filibusters per Congressional session. Makes them think hard about whether they want to use one now when they might desperately want one later and not have it.

Think of the scheming. Would be a Senatorial Paradise.

Posted by: dweb on February 12, 2010 at 3:34 AM | PERMALINK

Yes, I think the way to handle this is to have Biden make a ruling, as Cheney was about to do with judicial filibusters. The Republicans cannot complain too much, since they still have a filibuster.

Posted by: bob h on February 12, 2010 at 6:43 AM | PERMALINK

Amazing. Why didn't I hear this same group of people whining about this when it was used against Bush? Against Judicial appointments no less. Hypocrites. The appropriate term is hypocrites. What you fail to understand is for nearly the entire year democrats had 60 votes. So how many filibusters actually took place? Not a cloture vote. A true, honest to God, Thurmon style filibuster??

Posted by: CrazyTrucker on February 12, 2010 at 11:11 AM | PERMALINK

"Amazing. Why didn't I hear this same group of people whining about this when it was used against Bush?"

Equally amazingly, back then I heard Republican after Republican talk about how an up or down vote on the floor was the nature of democracy. Where are those folks now? I guess the liberals were convinced by all those Republican arguments and the Republicans didn't mean what they said. Imagine that.

How many real filibusters took place? Over 100. Check the way the rules really work, CrazyTrucker.

Posted by: tomtom on February 12, 2010 at 4:26 PM | PERMALINK

I don't know the NFL rule, but in the Senate limiting each party to three filibusters per session is very easy to work around.

Introduce bill


Re-name bill, change a few words,and re-introduce.


Repeat and voila, no more filibusters for the session.

If you want a weakened but still potent filibuster go with the Harkin bill. It eats up floor time so it still has teeth, but in the end the filibuster can be broken by a majority.

Posted by: tomtom on February 12, 2010 at 4:28 PM | PERMALINK



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