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Filibuster “Reform” On Senate Agenda

By: Brian Darling (Diary)  |  January 23rd, 2010 at 05:00 AM  | 

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The ink is yet to dry on Senator-elect Scott Brown’s certification to be the 41st vote against ObamaCare and the left is readying a multi-pronged attack on the filibuster.  Senator Tom Harkin (D-IA) and Congressman Jim McDermott (D-WA) have opened up a front in both the House and the Senate to lower the threshold for Senate leadership to stifle debate and amendment.  Don’t be fooled.  These are merely first shots in an all out war by the left to exterminate the one rule in the Senate that makes it difficult for the Obama Administration to railroad though an unpopular left wing agenda.

The Hill reports:

Sen. Tom Harkin (D-Iowa) in the next few weeks intends 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.

The Harkin rules change would require 67 votes for passage.  It is unlikely that Senators in the minority party would vote for a rules change that would erode the few rights of the minority.  Especially at a time when the Obama Administration seems intent on passing ObamaCare using all means necessary to get it done.  This is merely one idea in the Senate to attack the filibuster.  There are other options that Senate Majority Leader Harry Reid (D-NV) has at his disposal to crush minority party rights in the Senate.

The Hill also reports that:

In the House, Rep. Jim McDermott (D-Wa.) this week introduced a resolution urging the Senate to lower the filibuster threshold, adding in a statement that the legislative tactic “has begun to erode the integrity of our Democratic process.”

The House has no means to change the rules of the Senate, so this is merely a message that some House members would like to send to the House.  First of all, House members, both Republicans and Democrats, institutionally hate the filibuster, because the filibuster has killed legislation favored by both R and D House members.  The House members look at the Senate rules as arcane and they don’t have much respect for the fact that one member can gum up the process in the Senate.  This is more of an institutional argument by House members, because the House is strictly a majoritarian body, while the Senate is not. 

Republicans in 2005 toyed with the idea of abolishing the filibuster with a simple majority vote.  That clearly was a mistake and many Republicans regret the day they marched down that road.  The Republican Senate Leadership at the time wanted to use a very controversial parliamentary tactic to ignore the 2/3rds threshold for rules changes in an attempt to confirm a handful of Bush Administration judicial nominees.  It was deemed the “Nuclear Option” by detractors and the “Constitutional Option” by supporters. 

Senator Reid has bragged about his role in stopping that effort in his 2008 book “The Good Fight,” where he wrote the following:

It was just a matter of time before a Senate leader who couldn’t get his way on something moved to eliminate the filibuster for regular business and that, simply put, would be the end of the United States Senate… A filibuster is the minority’s way of not allowing the majority to shut off debate, and without robust debate, the Senate is crippled.”

Republican and Democrat Senators have both advocated for and against the filibuster at different times when it suited their needs, but now it is important for these members to respect the traditions and history of the Senate.  Both parties need to take a step back and stop the mutual assured destruction of the Senate as an institution that respects unlimited debate and amendment.  Senators need to fight against any ideas that would streamline the Senate procedures, because, in the end, an extermination of the filibuster rule will destroy the institution as the most deliberative legislative body in the world.

For more resources on the necessity of the filibuster, you can refer to “Filibusters and Our Founders,” The Filibuster is Essential for Democracy,” “The Filibuster is Constitutional and Essential for Freedom,” “Vice President Biden v Senator Biden on Filibuster,” and “Leftists Continue War Against Filibuster.”

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COMMENTS

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  • http://biggator5.net/archive.html BigGator5

    Wait just a minute, 67 votes? Did I miss something or slip in an parallel universe, because I thought it was 51 votes to change Senate rules (this is why it’s called the nuclear option, because it would nuke debate and the majority could pass anything they wanted)?

    • woodbridgeva

      The Senate is not the House. The House disolves itself at the end of each Congress and reorganizes at the start of the next term. The Senate is a permanent body which has not disolved since it was first organized in 1789. the Senate choe this process because their members have overlapping terms. House rules can be rewritten by simple majority vote at the start of each Congress. Senate rules require a 2/3 vote (67) for amendment unless and untill the Senate votes to disolve itself and reorganize.

    • E Pluribus Unum

      was to use some sort of “point of order”, stating that the interpretation of the “advise and consent” clause of the Constitution inre the President’s nominees would be that a filibuster was contrary to the Constitution on that particular point and therefore a cloture requirement was out of order.

      Something like that. I don’t recall all the finer points, but I can say with confidence that filibuster of presidential nominees is in fact unconstitutional and should not be trumped by Senate rules.

      • Spiral

        The Republicans should tell the Democrats in the Senate, “Either we amend the US Constitution so that the 60 vote requirement for cloture (ending a senate filibuster) is written in our governing document or we eliminate the 60 vote requirement from the Senate rules.”

        Senate rule 22 says that debate on legislation can be ended by a vote of “three fifths of all Senators chosen and sworn.” But there are many loopholes to this rule.

        One is the 1971 budget act, which allows budget legislation to pass after a limited debate and a simple majority vote. Another is the Byrd option (or the Constitutional option), which simply means that the rules of the Senate are interpreted and enforced……… by a simple majority of the Senate. This means that there is a 60 vote requirement for cloture, unless 51 US Senators and the Vice President decide to ignore this rule.

        Therefore, it’s time for the GOP to tell the Democrats, either we make this a “hard coded” rule (put it in the US Constitution) or eliminate it.

  • tominkorea

    If they’re both going to have the same rules?

    We long ago made both bodies directly elected, when initially one was directly elected and the other indirectly elected. What’s the point of having two bodies directly elected and having the same perfectly majoritarian rules?

    Might as well just get rid of one body or the other if they’re both going to be the same.

    • http://www.the41stvote.org rcov092

      States no longer have representation in the triad.

      • http://www.ssce.net/Web-Articles/Web-articles-indexed-authors.html#authors-l JLenardDetroit

        I’m very much in favor, and on the record often, regarding such (17th Amend/Elect Senators chg – repeal the 17th? YES please). A State might then choose to have its Senators elected directly still, but the debate in each and every State should occur about going back to how it was MEANT to be and allow us to educate the Politically Brain-dead masses about why it should be that way (holding your own States’ elected Officials responsible for them) and for us to fight within our own States to get it back that way.

        • http://www.ssce.net/Web-Articles/Web-articles-indexed-authors.html#authors-l JLenardDetroit

          (2 Terms) when the changes are made and implimented. It has irked me to no end that most Republicans dropped the Term Limits as quick as convenient rather than move on to the next appropriate step of Constitutional Amendment which they should have helped drive.

  • adamwatkins

    I am not too worried about this firstly because I don’t think they can succeed ramming this through even on a simple majority, let alone 67 votes. Too many of the senators would have to face the music back home about the timing of this raw political move coming on the heels of their loss of the 60th vote.

    Even if they did succeed in this, it will aggravate the already-looming backlash against them in November so that if they weren’t already going to lose the Senate to the Republicans, this will ensure it.

    Then we can keep their stupid rule change and hoist them by their own petard with a simple majority of our own! The benefit of this would be most enjoyed after 2012 with a Republican president. The Democrats will rue the day they ended the Senate’s distinction as a deliberative body.

    And no, I’m not saying this in a reverse-psychology, don’t throw me in the briar patch kind of way. I really mean it.

    • timothyj

      You may remember the switches that the Mass. legislature pulled to make sure that a Republican could not appoint a successor to “Kennedy’s Seat” and then doubled down on stupid when Kennedy lived too long and a Democrat became governor? They pretty much got away with it, didn’t they. Sure, Brown won, but that was not a part of the debate at the time. They got away with it, just like the Dems think that they will always be in power, and so can do anything they want.

  • JadedByPolitics

    with both parties and what the Democrats tried to do with this HORROR know as obamacare is have one sided tyranny. I expect this to fail because the Democrats will NOT have the majority next year and all the little children down in DC will have to work together likes good girls and boys and the BULLIES will not prevail!

  • Martin Knight

    My understanding of the Nuclear Option, and I’m certain I remember correctly, is that it eliminated the filibuster for Presidential appointments and nominations, while preserving the filibuster for legislation.

    The justification behind it was that the filibuster unnecessarily interfered with the Executive’s Article II power of appointments by imposing a possibly extra-Constitutional super-majority requirement when a simple majority is all that is necessary.

    Legislation on the other hand being the exclusive domain of the Article I bodies which are entitled to set their own internal rules can be subject to the filibuster.

    Of course, there is a colorable argument to be made that if the Nuclear Option had been successfully deployed, the Democrats would have long used it as justification for getting rid of it for legislation too.

    PS: The GOP’s members of the G14 must be feeling like total idiots now.

    • IJB

      This diary vastly distorts what the Republicans were trying to do, and on that score they were absolutely correct – there should be NO Filibuster on Presidential appointments (both Executive & Judicial). Elections have consequences, and one branch of Government having super-majority power over another is ridiculous, and possibly unconstitutional.

      As soon as the GOP gets back in there, one of their first orders of business should be to pass the Constitutional Option, and remove the Filibuster on Presidential appointments.

      Having the Filibuster on legislation is one thing. But having the Filibuster on either budgetary matters or Presidential appointments is quite another, and should not be allowed.

      • mikerazar
  • america1st

    I am struck by the many similarities between the cynical absolutist / statist ideological mindset demonstrated by “Democrats” and the parliamentary tactics of Lenin’s party in Kerensky’s provisional government. Again we have a minority (the obama crowd successfully sold themselves by bait & switch tactics) embracing a host of *UN*democratic tactics, some technically legal, but all antithetical to the very core precepts of representative government and at best unethical. Again, we have a single moment propagandized as standing for the will of the people when the statists’ true goal is the control of the people.

    We need only look at the ensuing 70 years to see the folly of allowing totalitarian wannabes to settle comfortably into power.

    On a side note, I must note that at least Vladimir Ilych actually had *done* something before seizing power. I very much doubt this two-dimensional charlatan could have survived two weeks of Siberian exile, much less four years. Lenin had to work to become a dictator, but obama’s way was paved with the cobblestones of affirmative action while his carriage was drawn by the Kool-Aid fueled flocks of the terminally cupid and contritely liberal, directed by the utterly venal.

  • spinoneone

    Both the Senate and the House get to write their own rules. It does take a 2/3rds majority to change the Senate’s rules, which is just about as difficult most of the time as amending the U.S. Constitution. Oh, and for the same reasons, too.

    Remember, though, that a single Senator can block any nomination by placing a “hold” on it. It takes a super majority to vote to continue discussion of that particular nomination, which is a rare event. Gets down to the usual “Old Boy Network” policy of ‘you scratch my back and I’ll scratch yours.’.

  • bk

    He’s the one who led the fight to change from the old “Mr Smith goes to Washington” rules where the burden was on the minority to the current system where the burden is completely on the majority. The Dems did this when they dominated the Senate and figured they’d have a huge majority for the rest of eternity.

    Here’s hard-core leftist Ezra Klein writing about it for those who don’t know how we got to the “pain-free” modern filibuster.

    It’s ironic that the Dems, who set up this system and then endlessly abused it under Bush 10x worse than the GOP did under Clinton, and who have been mostly free from it under Obama, are whining like heck about it now.

    If the Dems want to return to the pre-Byrd Jimmy Stewart type filibuster and make it effective in the next Congress, then maybe the GOP would go along with that. But of course it’s time to resurrect some Dem quotes about the SHOCKING, OUTRAGEOUS talk by the GOP under Bush about the nuclear option for judicial appointments.

  • dswardstrom

    I have seen a couple of blog entries in the last couple of years proposing that we try to repeal the 17th amendment.
    Why would we want to do this. I think that electing the Senators statewide does not give enough control of the Senators and they begin to think that they are in a House of Lords.
    If we repealed the 17th amendment, then the state legislators would elect the Senators thus making the Senators more responsive to the state rather than their party.
    One proposal to try to repeal an amendment is to get the states to withdraw their approval. Don’t think this would work, but if we got several states to do this, it would provide a wakeup call to the Senators.

    • E Pluribus Unum

      Probably has no chance whatsoever of getting traction. But now more than ever, with a whole bunch of senators-for-life who do not serve the interests of their constituents, people can see the wisdom of the original prescription in the Constitution

      • IJB

        State Legislatures picking Senators would produce an even worse and more corrupt crew in The Senate than the crew we’ve got with the voters picking them.

        The only change I would support is Governor’s making Senate appointments directly, or (even better) Governors having to serve (part-time) as Senators.

        But having State Legislatures do it is in every way worse than the system we have now. There’s a reason the 17th passed in the first place…

        A much better solution is Term Limits (which also has no chance of getting through Congress).

        • E Pluribus Unum

          First, the current system, just look and behold how impossibly corrupt and screwed up it is. Look particularly closely at how isolated Senators are from the will of the people, and how many senators “serve” 25 years and up, and turn into the worst kind of filchers.

          Second, the 17th Amendment was a horrible mistake, that threw a reasonably balanced system out of whack. The federal system balances state and central government interests, and one of the ways of keeping states’ interests in the game is to have Senators selected by those legislators.

          Today the states exist as little play toys for the federal government to amuse themselves with. That is the opposite of what was intended, and it is an exceedingly bad turn of events.

          • student

            The 17th Amendment was well intended but it was a key factor that led to the imperial predominance of the Federal government over the states. The permanent Senatorial empowerment of narcissistic individuals bought and paid for by K-Street lobbyists has fed the growth of federal power. America is about liberty. A key principle is to devolve power to the lowest level possible, the level more directly controlled by the people. The Federal government should only handle the enumerated tasks like raising an army that are not well handled by the individual states. The bigger, more permanent and more disconnected from the states the federal legislature is the more power shifts from the states to the localities. The current trend of a more and more powerful federal government and a weaker and weaker state government inevitably leads to the end of the American Republic. Repeal of the 17th Amendment is a start. Term limits is another. The real key though is the actual devolution of functions to return the Federal government to a focus on the enumerated powers.

  • lukematthews

    Since the point of the Senate was as a break to the radicalism of the House, destroying the use of filibuster would just make it another House with extended term statewide representatives. It would seriously cripple the ideal that legislatively no action is preferable to kneejerk action. It would also give the right no way to break radical political actions.

    It is entirely within the ideals of the framers to make Congress work against itself from time to time because of the fear of another Oliver Cromwell legislative body. They realized, from lessons in history, that such enormous power cannot be without restraint or the entire structure of a republic will collapse into mob rule. Having a protected status for the minority party is fundamental to the very ideal of restricted government. Losing it for petty, short-term political purposes is the truly foolish path.

    • shadowmane

      that we want to keep the two party system we are currently under the iron fist of. If we continue to think in a bi-party mindset, we will continue to have only two parties, both under the thumb of special interests.

  • Paul_In_Houston

    …although I’d have difficulty proving that from what we see now.

    It is unlikely that Senators in the minority party would vote for a rules change that would erode the few rights of the minority.

    I would hope that a few sane members of the majority (Evan Bayh appears to be evidence that some actually exist) would realize that they can become a minority again some day and may have need of those rights.

    -

    • student

      The point of a bicameral legislature is to have differences between them. The House is meant to capture the passion of the moment. It has a short term to keep the current attitudes accurate in reflecting the population. The Senate is meant to restrain those passions with a more careful, deliberative assessment – so that the stupid or noisy passions of the moment do not cripple the nation but the good ideas work their way through. The filibuster is the key element that differentiates the Senate. WIth a “50 votes and the bill passes” system the Senate would just be the House except it would keep the ideas from six years ago still active. Anybody who understands how the government works will want to see the filibuster retained.

      • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine
    • 6eorge Jetson

      in my lifetime.

      To pass highly partisan legislation, it takes either
      A) The Presidency (i.e. the veto)
      B) A supermajority in the Senate (60 votes for clouture)
      C) A simple majority in the House

      or, to override the presidential vetor
      -2/3rds in both chambers.

      The Dems were just bit by the Senatorial special-election law they passed when Republlican Romney was Governor but came into play under Democratic Governor Duval, which led to Scott Brown’s election.

      If this were to be passed, I predict that Republicans would have an obstruction-proof majority in 2012.

      These types of checks and balances have served the nation well, where they haven’t been eroded. Sometimes you like it (when you’re in the minority), sometimes you don’t (when you’re in the majority). The whipsaw cost to the nation of frequent reversals of legislation would not be in the nation’s long term interest, IMO.

  • http://www.redrivercontractinginc.com greggoulas

    I guess the members of the house had better figure out that it takes 41 votes cast to gum up the works. The first vote for or against a piece of legislation is just as important as the 41st vote cast. So no one Senator can stop legislation…..It takes 41 minimum! If you are the 41st Senate no vote in the roll call, are the stones coming your way from the opposition? Wake up boys and girls this is the way the system works!!! You can’t throw a tantrum and just change the rules to fit your wants and desires…..how immature and self serving is that?
    God Bless America and put us back on track of being the great Nation we are.

  • freedomofthought

    I’ll get the the point in the title, but first let’s set the stage for its presence in relative to the filibuster/representation etc. issues.

    Earlier in these posts dswardstrom asserted comments concerning repeal of the 17th ammendment. I’d like to add to that.
    A contributor from DC (which has a special problem concernning representation) disagreed and also felt the filibuster should go away (However that comment cited logic that I believe would coincide with SUPPORT for repeal of the 17th reassert “States Rights”.With senate representation, DC would have an equal representationin the Govt (not withstanding that I don’t know the exact details of the agreement that DC not be represented in the Nat Govt.) and of course this would entail House Rep as well. tho’ whatever rep they might have in the House of Reps based upon population I don’t know, but certainly it would be small. But I hope this makes a point to that commenter. At least those in DC who think owning a gun for their own protection would have a stronger voice if they were represented equal to other “states” as in the Senate (as would those who think not —- as it should be.) But a least (within the constitutional constraints) DC voters would have more say .

    Arguments for retention of the Electoral College, would. I believe, also follow the logic below. (That is another badly understood concept amongst those who want a total, unchecked democracy.

    The first problem is that “States’ Rights” has a bad name with some due to its tie-in to an anti-integration attitude in the past. However, our government did overcome that. Yet it is misunderstood by and large and the rights of the states to locally govern or have influence has been eroded and almost eliminated, thus weakening the governmental structure developed by the founders. To repeal the 17th would go a long way to returning the power to local entities.

    Another part of the problem is the poor education of most people concerning the fact that this is a democratic REPUBLIC and what that means and the justification of it in the founders logic. This is compounded by the constant reference (sometimes sloppily and somethimes on purpose) to our goverment as being a DEMOCRACY.. It is not, tho? the concept behind it promotes a controlled, checked & balanced largely democratic structure. This is ignored by the politicians who constantly refer to our ?democracy? because it sounds patriotic. But it does disservice to the public at large.

    A good example for the need of the bicameral legislature we have
    is Alaska. Based on population Alaska would not have a lot of control over ITSELF. The rest of the country at large would have total control over those folks and the vast, vast resources they own and control. They would basically be plundered. Similarly our states that produce food in the midwest. The city-folk in the country could totally over-ride their best interests. The House on the otherhand IS constructed to balance that with what is good for the country as a simple single entity with each ?state? represented proportionally.

    This is part of the system of checks and balances.
    where the rest is the separation of legislature, judicial & administration each watching or restricting one another.

    Changing this would provide a true democracy ? which our founders rightly assessed as leading to chaos. Further it would give to those who knew NOTHING about the trials and tribulations of smaller groups of people (e.g. farmers) total control over how they lived and to run their businesses for them,

    Sort of like the govt taking over car companies, banks and healthcare ?- NO ?????

    Another view: Should a bunch of city dwellers (largely) who have access to good roads and piped in natural gas be able to tell a person living way out the backwoods of Alaska, VT or Utah that he could not own an SUV or 4wd vehicle to travel nor burn wood to heat his home because they deem it bad for his and their environment???? I think not.

    I too believe that the 17th should be abolished. It is leading us in the wrong direction,.The filibuster should be retained with at least 60 votes for cloture, 67 for changing the rules. And the “nuclear option 51 vote procedure TIGHTLY defined and controlled.

    Who says slowing down the govt is a bad thing. Especially with a majority who believes that you “SHOULD NEVER WASTE A GOOD CRISIS” to get what they want. we need a set of emergency brakes to avoid the oncoming disasters. AND WE should live by these same rules when WE are in charge. Hypocracy stinks.

  • freedomofthought

    After my long (probably overbearing) diatribe just now, I had a thought.
    Election campaigns are boring and way too long. So how about our
    side of the fence getting away from the he said she said crud and actually teach the populace a bit about what us old folks learned in school and what the progressive teachers and professors have obscured? The states rights issue and its origin, the religious liberty issue, its REAL meaning and what it doesn’t, the fact that we are a democratic Republic and not a Democracy and why, The philosophies of our founders on welfare, etc. The reasons (besides security) for decent control of who and from where in immigration,
    Even the terribly boring but important issue of the Electoral College and how it applies to various issues.

    I suppose this is just day-dreaming, but it surely IS needed.,

    Of course it might be nice if we tied these facts in to a coherent,
    simple and well explained set of programs as part of a “party program”! bit just a “platform” and NOT just bumper sticker slogans, tho’ they are needed too , but they must refer to something with substance.

    Oh, and strong candidates who BELIEVED in the content of the points and philospines above would be a REALLY added benefit.

  • freedomofthought

    I meant to say:
    Of course it might be nice if we tied these facts in to a coherent,
    simple and well explained set of programs as part of a ?party program? NOT just a ?platform? and NOT just bumper sticker slogans, tho? they are needed too , but they must refer to something with substance.

    A “platform” to me, is just WORDs which may or may not have anything to do with what you do after being elected (sometimes it’s
    just a wishlist or even BS)_ A “program” on the other hand says what you believe in, what you will do about it and HOW,.

    And by the way, let’s get some new (R) party leaders — in Congress. These guys are doing NOTHING, And listening to them is like watching grass grow, or traffic lights change or paint dry.

    I’ll shut up now for a while.

  • freedomofthought

    Sorry I need a proofreader.
    In my 2nd prev, post

    “philospines” should have been “philosophies”

    It’s hard to type with your middle finger raised in the direction of Washington DC,.

  • johnstoirvin

    “In the House, Rep. Jim McDermott (D-Wa.) this week introduced a resolution urging the Senate to lower the filibuster threshold, adding in a statement that the legislative tactic ?has begun to erode the integrity of our Democratic process.”

    And what of the backroom deals, bribes, labeling dissenters as extemists, locking half the population out of discussions that affect us all, and on and on…..THESE are the things that have eroded the integrity and made a mockery of our Democratic process!! I am tired and more than fed up with politicians of any persuasion practicing their gamesmanship instead of doing the job WE hired them to do, thereby trying to control my life to the best of their ability….and then, charge me for it!!!