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April 18, 2013 9:43 AM Victory Into Defeat

By Ed Kilgore

Of all the factors contributing to yesterday’s gun legislation fiasco, I only have eyes today for the one that so many others writing about the “crushing defeat” of the Manchin-Toomey background check bill keep strangely forgetting about: the current way the U.S. Senate operates. Ezra Klein, however, nails it:

The gun vote didn’t fail because a couple of red-state Democrats bolted, or even because too many senators are afraid of the National Rifle Association, or even because Sen. Pat Toomey couldn’t bring along more Republicans. Those factors help explain why the gun vote didn’t clear the extraordinary bar set for it to succeed. But they’re not the main reason it failed.
The gun vote failed because of the way the Senate is designed. It failed because the Senate wildly overrepresents small, rural states and, on top of that, requires a 60-vote supermajority to pass most pieces of legislation.
The Manchin-Toomey bill received 54 aye votes and 46 nay votes. That is to say, a solid majority of senators voted for it. In most legislative bodies around the world, that would have been enough. But it wasn’t a sufficient supermajority for the U.S. Senate. Of the senators from the 25 largest states, the Manchin-Toomey legislation received 33 aye votes and 17 nay votes — a more than 2:1 margin, putting it well beyond the 3/5ths threshold required to break a filibuster. But of the senators from the 25 smallest states, it received only 21 aye votes and 29 nay votes.
It’s typical to say that this is how the Senate’s always been. It’s also wrong. The filibuster didn’t emerge until decades after the first congress, and its constant use is a thoroughly modern development.

Yes, it’s true that the legislation would have probably expired in the Republican-controlled House, as a lot of us pointed out when a lot of Beltway pundits were treating Manchin-Toomey as some sort of miracle of wonder-working proportions. But what’s maddening to me is the easy acceptance by so many people (Democratic senators as well as media observers) of the radical idea of a Senate that requires super-majorities for every legislative act—other, ironically, than budget measures. Had Mitt Romney been elected president and Republicans had taken the Senate, the Ryan budget with all its vast implications would have almost certainly cleared the Senate on a straight 50-vote majority thanks to special rules for “reconciliation.” But a bill as meek and mild as Manchin-Toomey? No, it can be dealt a “crushing defeat” by 46 senators.

I would normally say “this has to change.” But for this to change, the first step is for political actors and political media to recognize and draw attention to the problem. I noted late yesterday that in a long report on the Manchin-Toomey vote in The Hill, the words “filibuster” and “cloture” do not appear, even though the vote in question was actually on a motion for cloture to end a filibuster. The defeat of the measure by a Senate minority was treated as just the way things are done. That is what has to change first, before real change can come to the Senate. And frankly, any post-mortem on the failure of gun legislation, however well-meaning, that doesn’t prominently mention the horrifically anti-democratic set-up of the current Senate is missing a crucial point.

Filibuster Delenda Est.

UPDATE: As at least a couple of commenters have noted, the vote on Manchin-Toomey was not, as I suggested, technically a “cloture vote,” but rather a vote on an amendment subject to a unanimous consent agreement requiring 60 votes for passage, executed to avoid what would otherwise have been a filibuster followed by an unsuccessful cloture vote. I regret the error, but would note this is a distinction without a difference, since the “right” to filibuster made the UC necessary. I guess I could amend my cri de couer to say “Filibuster (and unanimous consent agreements providing for supermajority requirements) Delenda Est,” but I think I’ll stick with the original formulation.

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.

Comments

  • sjw on April 18, 2013 10:03 AM:

    Couldn't Obama make this an issue?

  • patrick II on April 18, 2013 10:05 AM:

    Yes, it’s true that the legislation would have probably expired in the Republican-controlled House...

    I don't think we talk enough about the Hastert rule, which is just about as pernicious as the filibuster rule. The Republican House leader simply tables bills that republicans can't pass by themselves. It is quieter but just as deadly to democratic majority rule as the filibuster.

  • mds on April 18, 2013 10:06 AM:

    The Manchin-Toomey bill received 54 aye votes and 46 nay votes.
    No, it can be dealt a “crushing defeat” by 46 senators.

    It's a minor quibble, but it was dealt a crushing defeat by 45 senators. Reid was a nay vote for the usual procedural reason. 55-45 makes the point even better than 54-46.

    ... Of course, if I'm going to get into procedural minutiae, I wonder if any of the Democratic nay votes might have been flippable if it could have gotten to 60. Since it was going to fail anyway, the lily-livered Democratic nay voters probably figured there was no reason to stick their necks out. After all, Senator Heitkamp is facing a difficult re-election fight in 2018.

  • PTate in MN on April 18, 2013 10:08 AM:

    "I would normally say “this has to change.” But for this to change, the first step is for political actors and political media to recognize and draw attention to the problem. "G

    Excellent post! And "this has to change." Klein's numbers--comparing support for gun control in small rural vs states with large population--are stunning. I don't know how, but this has got to change.

  • scott_m on April 18, 2013 10:10 AM:

    Has it not been within the power of Majority Leader Reid to fix this at any point? If that's true, doesn't the blame for the failure of this legislation sit with him?

    By the way, digby has a jpg from Mitch McConnell's Facebook page -- all that's missing is Mitch kicking sand in Harry's face.

  • c u n d gulag on April 18, 2013 10:10 AM:

    Waiting for our cowardly, compliant, and complicit MSM to make an issue of this, is like Estragon and Vladimir waiting for Godot.

    People making 6 or 7 figure salaries not to see something, won't see that thing - no matter how obvious it is.

    So, instead of mentioning the pink elephant in the room, our MSM spends its time and resources focusing on the red and white mice arguing in the corner.

    And look over there!
    A Kardashian!
    And there!!
    A missing white chick!!!

    FSM help us, if a Kardashian ever disappears...

  • HelpThe99ers on April 18, 2013 10:12 AM:

    Ed,

    I could be wrong, I think the problem is a little worse. The Manchin amendment was one of several that were subject to a 60-vote threshold for adoption, or a "pre-filibuster."

    The 60-vote threshold was agreed to by unanimous consent.

    The Monkey Cage has the 2009 CRS report that explains the 60-vote threshold. Here's the summary:

    "The Senate frequently enters into unanimous consent agreements (sometimes referred to as 'UC agreements' or 'time agreements') that establish procedures for the consideration of legislation that the Senate is considering or will soon consider. In recent practice, such unanimous consent agreements have sometimes included a provision that would require a 60-vote threshold to be met for amendments or legislation to be considered agreed to, rather than the simple majority
    ordinarily required. These amendments or measures may be of a controversial nature with the potential for causing a filibuster. By incorporating a 60-vote threshold, such UC agreements avoid the multiple requirements imposed by Senate Rule XXII for invoking cloture, while preserving the same requirement for super-majority support."

    I don't recall if this was part of the "filibuster reform" agreement that the Senate agreed to at the start of the session, but it sounds like the Senate simply expedited a set of amendments they knew were going to be filibustered, because these days, everything is.

  • Jack Lindahl on April 18, 2013 10:18 AM:

    The Founders never intended for their new nation to become a democracy in the sense that the popular vote would determine everything. We only think this is a democracy because of our elementary school training - all that pledging, singing of songs, etc.

    In fact, the concept from the beginning was to protect landed interests, expand the wealth of the wealthy, and to keep power closely in the hands of same. In that regard, the whole experiment has been wildly successful so far.

  • Gandalf on April 18, 2013 10:21 AM:

    Ah Gulag. You hit the nail right on the head.

  • jjm on April 18, 2013 10:24 AM:

    The vote against the gun legislation was rigged from the start given that 'the parties' agreed beforehand that all amendments needed to get 60 votes to pass. Reid was, that is, in total bad faith on this. I blame him for agreeing to that phony rule.

  • T2 on April 18, 2013 10:26 AM:

    As has been pointed out by many, this was not a filibuster but rather an agreement by Senate leaders of both party's to require 60 votes. In this case, both sides really did it.

    But from my point of view, the story is why so many people are against laws meant to protect us all.

  • Milt on April 18, 2013 10:27 AM:

    I hate to disagree with Mr. Klein and the majority of responders but the problem is not in the structure of the Senate. Lobbyists have gained more and more power over the past forty or fifty years and they are playing the music to which the senators are dancing. True, the sound of gold and silver has always been most attractive to our elected officials but the amount being tossed in their direction these days drowns out the voice of the electorate. The people in the Senate now are no worse nor no better than those who held office over the past 230 some years, they are just dancing to a different tune.

    You want to change things? It will take a tsunami because the money-changers have become so entrenched a grass-roots movement will have little effect. This is unfortunate because it shows this country is not the democracy it has always claimed to be.

  • Peter C on April 18, 2013 10:31 AM:

    Had Mitt Romney been elected president and Republicans had taken the Senate, the Ryan budget with all its vast implications would have almost certainly cleared the Senate on a straight 50-vote majority thanks to special rules for “reconciliation.”

    If Romney had won and the Republicans had taken the Senate, McConnell would have eliminated the filibuster in a heartbeat.

  • emjayay on April 18, 2013 11:26 AM:

    Jack Lindahl: Not entirely. More of a lot of compromises between the wise educated rich men vs. the voice of the people and the power of states vs. individuals. Lots of analysis, but if anyone hasn't read Carol Berkin's A Brilliant Solution it's a pretty good one (and not too academic).

  • WWBlue Streak on April 18, 2013 11:33 AM:

    Ed, I absolutely agree. One path to change is to start lobbying for a Constitutional amendment giving the ten largest states a third senator, and limiting the ten smallest states only one senator.

    Would never pass, but it would focus attention on the population inequities you note and would put pressure on the Senate to start rolling back the ridiculous 60-vote requirement.

  • bleh on April 18, 2013 11:34 AM:

    If I remember my Latin correctly, "delenda est" is past, or describes a condition resulting from past action. This alas is not yet the case for the filibuster.

  • iyoumeweus on April 18, 2013 12:40 PM:

    AMENDMENT CONCERNING ELECTION OF FEDERAL OFFICERS
    Section 1: ARTICLE II, Section 1, Paragraphs 2 and 3 to the Constitution of the United States is hereby repealed and superseded by this amendment. Henceforth, the President and the Vice President shall be elected directly by a popular vote of all citizens 18 or over on Election Day, as determined by the Congress and approved by the President in accordance with the Constitution.
    Section 2: Amendment XII and Amendment XXIII shall be superseded by this Amendment except for the following sentences of Amendment XII:
    a. The person having the greatest number of votes for President shall be President
    b. The person having the greatest number of votes for Vice President shall be Vice President
    c. No person constitutionally ineligible to the office of President shall be eligible to that of Vice President of the United States.
    d. The President and Vice President shall not be an inhabitant of the same state.
    Section 3: Each member of the House of Representatives shall represent no more then 250,000 +/- 12,500 citizens. As the nation’s population increases or decreases the number of House member will increase or decrease to accommodate this requirement. Congressional Districts shall be compact and drawn along state, country, city, town and village lines wherever possible to accommodate equal representation. In some instances, election district boundaries may have to be used but in no case can election districts be divided except in accordance with state, county and local laws. In cities with a population greater than one million (1,000,000) Congressional Districts need not be compact but drawn in such a manner so as to reflect the various ethnic, cultural and neighborhood interests, differences and diversities residing within our country.
    Section 4: Any state with a population of five million (5,000,000) shall be able to elect another Senator and receive an additional Senator for each additional increase in five million citizens. All Senators shall be elected at large and represent the entire state in Congress.
    Section 5: The Congress shall have the power to establish by law all procedures pertaining to the election of President and Vice President including: the certification and transmission of election results, a sorting and winnowing process of potential candidates, voter identification, guaranteeing each citizen the right to vote in secret and ensuring each vote is counted.
    Section 6: Federal judges shall have the power to review and adjust Congressional District boundaries to better reflect Section 3, but the compliant must come from within the Congressional District(s) with an accompanying petition signed by ten per cent (10%) of those residing within the district(s).
    Section 7: a. Any state having fewer than 250,000 citizens shall be guaranteed one representative and two Senators.
    b. The District of Columbia may elect representatives in accordance with its population and Section 3.
    c. The District of Columbia being once a part of Maryland may take part in electing Senators from Maryland.
    Section 8: The Congress shall have the power to enforce this article by appropriate legislation.

  • PTate in MN on April 18, 2013 12:50 PM:

    Back with further details on Klein's point that "The gun vote failed because ... the Senate wildly overrepresents small, rural states "

    So, making the numbers real makes the offense greater. In 2012, the population of the 25 biggest states was ~262 Million people; 32 of those 50 senators (65%) voted yes on the Manchin-Toomey amendment and 18 (35%) voted no. The population of the smallest 25 states was ~47 million, and 22 of those senators (44%) voted yes, and 28 senators (56%) voted no.

    So, if you add it all up, Senators representing 65% of 262 million people, plus 44% of 47 million--roughly 62% of the population--voted yes. And yet the bill was stopped by the structural issues of the Senate which requires 60 votes to pass. So although those 54 yes votes represents 62% of the population, that wasn't sufficient.

    If you want further evidence that the Republican jihad on democracy is working, you can use this. Or maybe it is time to savage Harry Reid. It is shocking, in any case.

  • punaise on April 18, 2013 1:17 PM:

    I blame Carthage, TN.

  • Pat on April 18, 2013 2:21 PM:

    I have this mental image of a wonderful TV ad that could be run in the districts of these senators, that feature a rough looking white man talking into the camera, thanking the senator for supporting his rights to buy a gun on the internet. Because he has a previous conviction for (some crime against women). Then he turns to a young, bound, frightened woman sitting next to him, brandishes a gun, and says something like, "Thanks to Sen XX, it's a whole lot easier to keep you in line!"

    Liberals need to turn this moment into one about Republican senators enabling violence against women. Period.

  • Citizen Alan on April 18, 2013 5:52 PM:

    But what’s maddening to me is the easy acceptance by so many people (Democratic senators as well as media observers) of the radical idea of a Senate that requires super-majorities for every legislative act—other, ironically, than budget measures.

    This radical idea is "accepted" only because we have a Democratic President and a Democratic Senate. The minute the White House and the Senate are in Republican hands, we will return to the status quo of the Bush era -- when any attempt by Dems to filibuster something Republicans really want to do is condemned as un-Constitutional and un-American by the Cult of David Broder.

  • Dr. Pete Fugiel on April 19, 2013 7:25 AM:

    Nice going Ed on a great senate comment. My math has it that we should add thirty seats for the twelve largest states and start adjusting attitudes in the chamber about what democracy means.
    The small states may not like it, but they have to face it. We pay the bills.

  • joemcph on April 19, 2013 7:35 AM:

    Only 41 Senate votes to thwart nominations and legislation? For our democracy to function #FilibusterDelendaEst.

  • Jane Meyers on April 19, 2013 9:25 AM:

    I believe what you are talking about is known as the "silent filibuster," kept as a rule for proceedings by Harry Reid. He could have changed the rule at the beginning of this Session thus permitting only the traditional filibuster which demands constant speech, 24 hours a day.

    The "silent filibuster" can be invoked or threatened by the opposition anytime, making 60 votes necessary for passage. This essentially turns the minority party into the majority regarding power for passage of legislation. It is serious and silly. And, Harry Reid compromised, essentially caving because of worry over reelection.

    This kind of filibuster is anti-democracy, anti the American people. If it continues the minority party will, unless the majority is over 60 Senators, always have the power. How crazy is that?