Yesterday, in the Washington Post, Ezra Klein argued for Democrat Senators to use their power to abolish the filibuster. Ironically, Ezra Klein in 2005 argued that the same tactic when used by Republicans was a "power grab" and an abuse of power. Place Klein's Washington Post column of 2010 next to the Klein column of 2005 and one might conclude that Klein is a partisan hack. The left wants to abolish a Senate rule that protects the right of individual Senators to force extended debate -- the filibuster. Lefties like Klein are still mad that they could not force feed a public option to an unwilling American public.
Klein isn't alone. The drumbeat from the left against the filibuster is a coordinated effort and has most likely been the subject of action items circulated on Klein's Journolist. The left believes that if they can change the Senate's rules before the next election, they can jam through other elements of the progressive agenda to expand government and circumvent the consent of the governed.
Ezra Klein's piece for the Washington Post is titled, "How to end the filibuster with 51 votes." The piece explains to liberals how Senators can get around the explicit rules of the Senate and terminate the filibuster. The piece is in direct opposition to Klein's view of 2005 where he argued in The American Prospect that this same tactic was wrong.
In 2005 Senate Republicans were ready to pull the trigger for a tactic that was termed the "Nuclear Option" and the "Constitutional Option." The debate was over a handful of Bush Administration nominees to the Courts and Democrats were blocking these nominations. The so called "Constitutional Option" was a trick thought up by a Republican leadership staffer in an effort to force through these nominees. This is a tactic that rids the Senate of an explicit rule with a simple majority.
The rules that allow Senators to end debate is in Rule XXII of the Senate's rules. These rules are adopted by a 2/3rds vote and can only be changed by a 2/3rds vote. The Senate official web site describes the Cloture Rule as follows:
The cloture rule–Rule 22–is the only formal procedure that Senate rules provide for breaking a filibuster. A filibuster is an attempt to block or delay Senate action on a bill or other matter. Under cloture, the Senate may limit consideration of a pending matter to 30 additional hours of debate
What happens is that the Majority Leader collects 16 signatures on a cloture petition starting the process of shutting down debate. 2 days after the petition is submitted to the Senate, a vote occurs on the ending of debate on a matter. If 60 Senators agree to shut down debate, then 30 hours of debate ensue then a vote on the underlying bill or nomination is supposed to occur. The rule is explicit and detailed.
In 2005, a bipartisan team of 7 Democrats and 7 Republicans, the Gang of 14, cut a deal that averted the abolition of this Senate rule. What Republicans were planning on doing was to have a Republican in the Chair of the Senate who would declare that the filibuster is unconstitutional. Democrats would have appealed the ruling of the Chair and that ruling could be sustained by a majority of Senators. The Republicans also had another argument that the filibuster was unconstitutional for judges.
Klein said of that deal in 2005, "it seems like we got what we wanted -- the preservation of the filibuster for the Supreme Court nominee." Klein was for the filibuster before he was against it - for purely partisan reasons. Klein bragged that "we can still hang this power grab on the Republicans' neck come 2006. As part of a wider argument about their abuses of power, it'll make perfect sense, and the fact that seven Republicans signed on to stop it will only strengthen our case." You would think that Klein would remember that he called this tactic a "power grab" and evidence of Republicans long list of "abuses of power."
In the Klein 2010 piece he explained that a Senator needs 67 votes to change the rules of the Senate and 60 to overcome a filibuster. It is virtually impossible to change the Senate's rules to abolish the filibuster when the Democrats only have 59 Senators in the caucus. Klein then argues for "Constitutional Option." This misnamed trick allows the Senate to set a 51 vote precedent that abolishes the filibuster with a mere majority. Klein 2010 wrote:
But in practice, there's another path open to the Senate's growing ranks of reformers: The so-called "constitutional option," which is being pushed particularly hard by Sen. Tom Udall, but is increasingly being seen as a viable path forward by his colleagues.
The reason why desperate liberals want to abolish the filibuster ASAP, is because they are about lose seats in the Senate. Senate Majority Leader Harry Reid, if he is even around next year, will have much more power if he rids the Senate of the filibuster rule as a means to deal with legislation coming over from the House. Also, this empowers Reid to pass nominees and Treaties in the face of Republican opposition. All the Democrats would need would be a simple majority to get a Supreme Court nominee on the High Court, if another opening occurs, with this tactic. This is nothing more than a power grab by Democrats in the Senate.
Klein 2010 explains the procedural trick this way:
The constitutional option gets its name from Article I, Section V of the Constitution, which states that "Each House may determine the Rules of its Proceedings." In order to fulfill this constitutional order, the Senate must be able to, well, determine its rules. A filibuster, technically, is a way to stop the Senate from determining something by refusing to allow it to move to a vote. Because stopping the Senate from considering its own rules would be unconstitutional, the chair can rule against the filibuster, and the Senate could then move to change its rules on a majority vote.
This rule was explained by Marty Gold, former Floor Advisor to Senate Majority Leader Bill Frist (R-TN), in an Law Review article. Gold points to Rule 5 of the Senate that declares the rules are perpetual. He then points to Senator Robert Byrd who years ago argued that Article 1, Section V of the Constitution supersedes Rule 5. Under this reasoning, Senate Majority Leader Harry Reid in January could attempt to adopt one of the many reforms of the filibuster rule in a new Congress, by claiming that a new Senate has not adopted the old Senate's rules. Senate Republican Leader Mitch McConnell (R-KY) would object.
Reid would merely set a precedent that Klein 2010 further argues:
One caveat: Many people, including Udall himself, believe this has to happen at the beginning of a new Congress. If it doesn't happen at the beginning of a new Congress, then Congress is considered to have acquiesced to the previous Congress's rules, and a filibuster against further rule changes wouldn't interrupt the constitutional right to determine the rules.
The bottom line is that Ezra Klein knows in his heart that this tactic by Democrats is a "power grab." We have strong evidence from Klein's Journolist that the left is willing to coordinate a message for the purposes to forwarding the Obama Agenda in an unethical manner. One would hope that anybody who thinks Klein really believes in the "Constitutional Option" would read his writings from 2005 where the same Ezra Klein wrote some strong words against it.
UPDATE: 12:15 - After quite a few E-Mails between Ezra Klein and myself, I have agreed to post the below response to my blog post:
Well, I grant the disagreement, though I'm more just explaining my position to you. If we're setting aside the question of how I got to my views, then my basic view is that it's good for governing majorities to be accountable. If voters want to elect Republicans this year and then elect more of them, and kick out Obama, in 2012, then it shouldn't be nearly impossible for them to repeal health-care reform. Or to use another example that liberals often worry about, if Republicans after winning the 2004 election, had been able to get majorities for Social Security reform, it should've been possible for them to do.
Right now, we have a system where the minority has both the ability and the incentive to see the majority fail. I don't think that's healthy. If nothing else, it leads to voters assessing records that are determined as much by the obstruction of the minority party -- which most people pay no attention to -- as by the majority party's actual legislative program. I'd prefer, instead, that majorities could legislate, and then voters could clearly judge the job they've done, and if they don't like it, elect some folks who would be able to reverse the damage. I'd prefer, in other words, the pitfalls of a majoritarian system to the pitfalls of a super-majoritarian system.
As for the damage done to the institution, the first place I'd look is the offloading of accountability onto independent or at least non-legislative actors like the Federal Reserve, the Independent Payment Advisory Board, the EPA, the Courts, etc. The beginning of my Newsweek piece, which I sent you, makes this argument in some detail.
I believe that it is good that we don't live in a parliamentary system where on party rules the government with minimal dissent. Allowing rights for the minority party in the Senate is good for Democracy. It is also consistent with the idea of separation of powers between the executive and legislative branches government. If the filibuster is abolished, you would have the following consequences:
- Less Transparency - There will be less time for the American people to participate in the process;
- More power for Elites - Leadership will have the power to load up appropriations and legislative items with other unrelated matters that may not have majority support; and,
- More Partisanship - I know this seems impossible, but if one party is removed of even the power to extend debate, then that party will have no power to participate in the process.
Efficiency in government is not necessarily a good thing for democracy. For a longer discussion of this issue, check out my comprehensive defense of the filibuster.
UPDATE: 2:00 - Evidently Klein is a big fan of Red State, because he had one more E-Mail for me to post. I see that some Red Staters are mad that I am giving Klein a forum for his defense when the same courtesy is not extended to conservatives. We are better than many on the left who fear opponents views.
Many on the left, enabled by Klein, have spread hate and coordinated misinformation in an effort to disparage the conservative movement on the Journolist. Klein would state that he explicitly ruled out message coordination on his list, yet the fact remains that the list was used for that purpose by others. Members of the Journolist, have wished harm to Rush Limbaugh and urged left wing media elites to label all conservative opponents of President Obama "racists." This conservative does not fear giving the left an opportunity to respond, even though many of Klein's allies would not extend the same courtesy to us. Remind yourself of the treatment our own Erick Erickson received after he was given a forum on CNN by the lefties at Media Matters. To his credit, Klein did engage in a give and take with me via E-Mail and the same can not be said of many others on the left.
Here is Klein's latest defense:
I think what you chose to post is very odd: My disagreement wasn't with whether I disapprove of the filibuster, but whether I was reversing myself by endorsing the constitutional option. I didn't endorse the constitutional option. And to go to the direct claim, I also called Democratic efforts to reform the filibuster mid-Congress "a power grab."
That's what I'd like you to update on. I'm not annoyed to be shown as an opponent of the filibuster. Rather, I think you're vastly overstating the hypocrisy of my views between 2005 and 2010.
Klein states that "I didn't endorse the constitutional option." My implication, we can assume that he will be consistent and denounce Senate Majority Leader Harry Reid or Dick Durbin if they chose to pull the trigger in the next Congress. Also we can expect consistency from Klein in denouncing any effort in the Lame Duck by Leadership to engage in an end of Congress "power grab" as wrong. We now have a clear statement, I think, from Ezra Klein that he opposes the so called "Constitutional Option," in this Congress or the next. Please bookmark this page and be ready to call him out if he flip-flops.
Klein also states, "I think you're vastly overstating the hypocrisy of my views between 2005 and 2010." Am I to understand this as an admission of some hypocrisy? I would say yes. I E-Mailed Klein with the question "can we write a joint Op Ed trashing Reid or Durbin if the Maj Leader uses the Constitutional Option in January?" His response was telling - listen here.