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November 17, 2012 11:15 AM Elizabeth Warren fights the good fight against the filibuster, but it’s probably a losing battle

By Kathleen Geier

Here’s some intriguing news: Elizabeth Warren has vowed that her first priority upon entering the senate this January will be an effort to reform the filibuster. On the first day of the new senate session in 2013, senators will be voting on the rules, and filibuster reform would call for a simple majority vote, rather than the two-thirds vote normally required. Warren’s effort is supported by seven new Democratic senators-elect and by senate majority leader Harry Reid.

It’s not yet clear what kinds of changes will be proposed, but Warren has written, “The change can be modest: If someone objects to a bill or a nomination in the United States Senate, they should have to stand on the floor of the chamber and defend their opposition.” Currently, the filibuster can be invoked if it is supported by just 41 of the senate’s members. A simple request by a senator is all that is necessary; no Jimmy Stewart in Mr. Smith Goes to Washington-style marathon feats of oratory are needed to support it, so long as the senator has those 41 votes.

Could even a minimal reform of the filibuster be passed? So far, prospects seem doubtful. As of now the Democrats lack the required 51 votes to institute the change.

Truth be told, though I fervently support Warren’s effort, I’m not terribly optimistic about its chances for success. I don’t doubt that the filibuster is a disgrace to the human race that makes a mockery of our democracy. Our constitution, with its federalism and its three branches of government, already has a built-in conservative bias; with so many potential veto points, it is very difficult indeed to achieve meaningful change. Extra-constitutional institutions, like the committee system in Congress and the filibuster, make change even more of an uphill struggle.

And hey, just because a policy is deeply undemocratic, it doesn’t mean that our democratically elected representatives will not vote to uphold it! First, it’s not like the electorate is chomping at the bit to end the filibuster; data I’ve seen suggest that the general public either supports the filibuster or is ambivalent about it. Second and perhaps more important, senators, even those in the majority, have strong, rational reasons to support it. Political scientists Eric Schickler and Greg Wawro, who have written a book about the filibuster, have this to say:

So why does the filibuster persist? We believe it is because most senators believe that they benefit as individuals from the opportunities and leverage it provides them. The threat to obstruct allows senators to extract concessions from presidents, to raise the visibility of issues they care about (and raise their own profile in the process), and to play an outsized role on the political stage when they find themselves in the minority. Changing the filibuster does not require overcoming entrenched rules nearly as much as it requires changing the calculus of individual senators - that is, persuading them that voting for majority cloture is in their short and long term personal interest.

There is no doubt that Republicans, who tenaciously cling to their strategy of reactionary obstructionism, want the filibuster to continue. But it’s not only the Republicans who benefit from, and support, the filibuster. Plenty of Democrats do as well. Barack Obama, for example, has barely said a word publicly about filibuster reform; if it was a priority for him, then surely he’d be devoting more political capital to it. We’ve also heard relatively little about filibuster reform from senate Democrats. Indeed, it’s notable that the current reform effort is being led by newly elected first-term senators, not the more powerful, established senate veterans.

As Schickler and Wawro have pointed out, all senators, even those in the majority party, benefit individually from the filibuster. Specifically, I would argue that the main way senate Democrats benefit from the filibuster is that it gives them an all-purpose excuse not to get anything done. Democrats in Congress have deeply conflicted interests. On the one hand, they are the party of the middle class and the poor, and rhetorically, and often enough in reality, they champion the economic interests of ordinary Americans. On the other hand, they depend heavily on Wall Street and other corporate money for campaign contributions, and so often enough they support policies that benefit those interests as well.

That’s why even the major reforms Democrats have supported, like health care reform and reform of the financial sector, has been so watered down. The mildness of those reforms continually disappoint supporters. But so long as the Dems have the filibuster to kick around, they have a handy scapegoat on which to blame their failure to enact policies that are more robustly populist. Sans filibuster, however, they would be have to make many painful votes that would force them to choose between their two main constituencies, moneyed elites vs. the 99%. With the filibuster, they don’t have to make those choices, and therefore can continue to serve two masters. I don’t believe it’s an accident that the rise of the filibuster, from the mid-70s to the present, coincides with the rise of economic inequality.

All of which explains why, as much as I hope I’m proven wrong about this, I doubt we will see any filibuster reform in the new Congress. To reform the filibuster, we will need a countervailing power to the one percent, in the form of a mass movement. Right now, that mass movement does not exist. And so long as that is the case, our democracy will continue to be a shambles.

Kathleen Geier is a writer and public policy researcher who lives in Chicago. She blogs at Inequality Matters. Find her on Twitter: @Kathy_Gee

Comments

  • Neil B.... on November 17, 2012 1:32 PM:

    Disgusting. We shouldn't take this lying down - but can we at least expect reform like having to talk the talk?

  • c u n d gulag on November 17, 2012 1:36 PM:

    When one serves two masters, one serves neither one well.

    And it's not like the Democrats, and President Obama, are all that beloved by Wall Street.

    They just realize that Democrats are better at running a stable country, than that rabble of religious Nihilists - the Republican Party. That party of useful idiots is good to have around to keep the Demcrats in check. After all, we can't have another round of 1930's FDR-type financial reform, now can we? Or much higher tax rates/

    And if most Americans aren't FOR filibuster reform, it's because they don't have a clue as to how it's being used nowadays.
    They still think it's Jimmy Stewart as Jefferson Smith, standing there, fighting for justice. They don't know that it's really Senator Joseph Paine placing countless "holds" behind the scenes, to muck things up, and slow down progress.
    They don't see anyone standing there and "filibustering," so they think things must be all hunky-dory in Senateland.

    I'm with Warren.
    Make them get up off their fat wallets and stand for awhile. It's good for their hearts - those that have them, of course.

  • golack on November 17, 2012 1:45 PM:

    ...and quick votes anytime a filibuster is in progress. The motion to end the filibuster (yes, not the motion to proceed) needs a minimum of 40 votes to pass. If it does not meet that threshold, then a simple majority will end it. If a Senator in the minority wants to visit Iowa, there goes the filibuster. Heck, if they just want to use the rest room, filibuster gone...

  • MelanieN on November 17, 2012 1:45 PM:

    If we can't get rid of the filibuster, can we at least get rid of the ridiculous rule that allows ONE senator, sometimes anonymously, to place a "hold" on a nomination or piece of legislation and prevent it from moving forward? I thought they got rid of it last session, but I saw it invoked again within the past few months.

  • Doc Sportello on November 17, 2012 2:24 PM:

    I recently finished Master of the Senate, the third volume of Robert Caro's biography of Lyndon Johnson. The biggest reason that there was no civil right legislation (post-Civil War) until 1957 was Rule 22 -- the filibuster.

    This has been a huge problem for decades. The House used to have a filibuster, but wisely got rid of -- it was destroying too much Reconstruction legislation.

    At the risk of being a single-issue guy, I don't see how Dems can support in good faith a senator who votes against filibuster reform.

  • Hannah on November 17, 2012 2:28 PM:

    Now that Harry Reid is apparently on board, is there not a chance of some sort of change. It doesn't have to be the talk til you drop proposal by Merkley (my senator, gotta love him), Udall, Warren, etc. I've seen other proposals to get things moving.

    I know most people have no idea how the Republicans have abused the filibuster... or if they do know they rationalize it with "both sides do it". And you can't convince them otherwise. Argh.

  • Hannah on November 17, 2012 2:35 PM:

    As for the Dems who use the filibusters by Repubs as something to blame, true, but more and more populist Dems are being elected and I hope they will persuade others to go along. And with leadership on board something's got to give. I'm optimistic. Or maybe I'm just naive.

  • Michael on November 17, 2012 2:51 PM:

    There should at least be motivation to change the way the filibuster works on judicial appointments. Obama should be in favor, as this works towards his legacy, and I don't really see how senators would be pulled between two masters on that point.

  • James E. Powell on November 17, 2012 3:09 PM:

    Senators will not get rid of the filibuster or modify it in any significant way unless there is public pressure to do so. When Senator Warren (I love writing that) and others speak against it, we, the people, need to raise the hue and cry. Serious questions do not move up the agenda without people pushing them up.

  • Peter C on November 17, 2012 3:11 PM:

    Any Democratic Party senator who votes against filibuster reform will face my wrath.

    Any Democratic Party senator who joins a Republican filibuster on a procedural vote should be formally punished (loss of committee assignment, loss of seniority, etc.).

    We must have minimum standards of political behavior. You may vote against your party's position in a final vote, but when Congress is THIS dysfunctional and THIS polarized, we cannot afford to tolerate obstruction from within our own ranks. If Reid cannot buy-into this, he should step down or be chucked out of his leadership role.

  • schtick on November 17, 2012 4:01 PM:

    The pain of them actually working or at least appearing to work for their pay, perks, benefits and retirement for a change. GAWD! They might actually have to work 2 and a half days a week!

  • Doug on November 17, 2012 5:28 PM:

    Simply returning the filibuster to how it operated prior to the "reforms" of the early 1980s should be enough to remove the most egregious abuses. While it's correct that the filibuster was the biggest impediment to civil rights legislation prior to 1957, another impediment was the make-up of the parties themselves.
    Each party had its own "liberals", "centrists" and "conservatives" then and, when a party held the majority, each sub-group had to be taken into account. Today finding a true conservative Democrat, as opposed to a Democrat that doesn't support one's position, is a very hard task. The same applies to today's GOP, there just aren't "liberal" Republicans anymore. Today both parties are much more in agreement in their goals than in almost any time previously; certainly since the 1930s.
    Which brings up a question about the filibuster I've never seen addressed: How many filibusters were by members of the majority party objecting to something that was supported by that party? How many by members of the minority party? How often was a filibuster, or its threat, aimed at majority legislation by a member of the majority party? Such a demonstration of disunity by members of the majority party was an almost certain way to halt a piece of legislation. "Reaching across the aisle" in such circumstances rarely occurred because, sorry, the Senate was NOT a bi-partisan Eden prior to McConnell.
    It may very well turn out that even with the Democrats and Republicans now being more coherently representative, respectively, of liberal and conservative positions, abuse of the filibuster will continue or even increase. If, even after whatever reforms are adopted, such abuse should continue, THEN we can push for a complete abolition of the filibuster, but until then, keep it.

  • exlibra on November 17, 2012 5:45 PM:

    [...] itís notable that the current reform effort is being led by newly elected first-term senators, not the more powerful, established senate veterans. -- Kathleen Geier

    Um. Not really. The idea of filibuster reform -- including the theatrical "stand there and read the phone book" -- has been promoted long before the newbies have been elected.
    http://projects.registerguard.com/csp/cms/sites/web/opinion/25736348-47/filibuster-senate-republicans-democrats-senators.csp

  • David on November 17, 2012 7:28 PM:

    Are the numbers in the original post accurate? To clarify, I think they would be if every senator actually took a position and voted. But my understanding is that the burden is not on the filibuster side to muster 41 votes to hold, but rather on the other side to get to 60 to override. That's a big distinction if even only a few senators are unable or unwilling to vote. Anyone with actual knowledge care to comment? My understanding is based merely on paying attention to other discussions, not first-hand knowledge of Senate rules. Thanks.

  • mb on November 17, 2012 8:10 PM:

    Yeah, the simplest reform would be to put the onus back on the filibusterer by requiring 41 votes to sustain rather than 60 to invoke cloture. Currently any Senator absent for any reason is de facto part of the filibuster since he/she may be the 60th vote to stop the filibuster. Flip it around, require 41 to filibuster, regardless of the vote for cloture, and the system immediately becomes more efficient and fair. IMO, this doesn't seem like such a difficult reform to enact even given the realities of Senatorial self-interest.

  • Jamie Anderson on November 17, 2012 11:48 PM:

    Filibuster reform is a band-aid anyway.
    This democracy is doomed unless a Constitutional amendment is passed prohibiting private funding of elections, and establishing public funding for any and all elections.

    It's really as simple as that, and if it doesn't happen soon, our democracy will not see mid century.

  • Varecia on November 18, 2012 1:55 AM:

    I think we all have to get loud and shrill in our insistence on filibuster reform. I know that there are petitions circulating, and I read a letter to the editor of my local paper today urging readers to contact their senators to insist on immediate filibuster reform. Bug everyone you know to do this. I doubt that many people are aware of the filibuster problem, and it is up to those of us who are concerned to tell them why they need to care about this, and more importantly, why they need to contact their senators right now.

  • DisgustedWithItAll on November 18, 2012 8:52 AM:

    There need to be some names named here. Who are the Democrats holding out on this? These people simply can not be allowed to piss away the victory that was given them and shit all over the people who worked their asses off to get Obama re-elected and give Dems in the Senate an expanded majority. It's unbelievable there are a few Democratic asswholes who think they should be able to stand in the way of wishes of millions and millions and in the way of giving the country at least a reasonable chance of governing itself.

    Who are the asswholes standing in the way of filibuster reform? Name names.

  • markg8 on November 18, 2012 10:15 AM:

    This is pretty cynical, the kind of thing I expect to read at Fire Dog lake not the Washington Monthly. Reid changed his mind because the political fortunes of the party did over the last two years. We'd taken a shellacking in 2010 exactly because of this kind of self destructive cynicism and were staring at defending 23 senate seats in the 2012 election and the smart money back in January 2011 was on us losing the chamber. Reid couldn't do it then but he can and should now.

    Let's try to be more positive and encourage enough Democrats to get on board with the changes Reid is proposing. Enough of eating our own. 8 out of the 10 richest counties in America just voted for Obama. At least one poll shows 62% of the wealthy support letting the tax cuts expire on income over $250,000. We can get filibuster reform unless too many influential publications like WaMo continue to publish cynical screeds like this and our base once again gets discouraged and disengages like it did in 2010.

    Please knock it off. This isn't smart, it isn't prescient or insightful, it's just self defeating.

  • Ariel in Georgia on November 18, 2012 8:10 PM:

    I think, and this is completely hypothetical, that the President will not expend political capital on filibuster reform until there is a chance for a Democratic majority in the House.

    I really think that the calculation is, simply, "why do it now, if any legislation will still die in the House? Why hand a filibuster free Congress to the GOP if they happen to win the Senate in 2014 or 1016?"

    It is true that there is a direct benefit from eliminating the filibuster now; judicial nominations. My guess is that Dems also value the filibuster when they are in the minority in the Senate, and are not that eager to get rid of it until they have a shot at winning back the House.

  • Bob h on November 19, 2012 6:11 AM:

    55 votes for cloture on appointments would shut down McCain and Ms. Lindsay in a hurry.