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Durbin (D, D Majority) vs. Durbin (D, R Majority) on filibusters.

By: Moe Lane (Diary)  |  February 13th, 2010 at 04:17 PM  | 

RESIZE: AAA

You have undoubtedly seen by now that Senator Dick Durbin is now ready to try to kill the filibuster, not five years after praising the practice to the skies.  You are also undoubtedly not surprised.  But this particular bit below from Durbin is really quite interesting as an example of defiance against the tyranny of the majority: it’s an absolute pity that the senior Senator from Illinois has just demonstrated that he never actually meant a word of it.

I don’t believe I was elected to the Senate to be a rubber stamp. I believe I was elected and took the oath of office to uphold this Constitution, to stand up for the precedents and values of Congress and our Nation. We need to have, in our judiciary, independence and fairness. We need to have men and women on the bench who will work to protect our individual rights, despite the intimidation of special interest groups, despite the intimidation of Members of Congress. They need to have the courage to stand up for what they believe, in good conscience, to be the rights and freedoms of Americans.

I speak, as a Senator on the Democratic side, and tell you that our 45 Members will not be intimidated. We will stand together. We understand these lifetime appointments to the bench should be subject to close scrutiny, to evaluation, and to a decision as to why they are prepared to serve and serve in a way to protect the rights and aspirations of ordinary Americans.

The filibuster, which requires that 60 Senators come together to resolve the most controversial issues, that rule in the Senate, forces compromise. It forces the Republicans to reach across the aisle and bring in some Democrats when they have very controversial legislation or controversial nominees. It forces bipartisanship–something that tells us, at the end of the day, we will have more moderate men and women who will serve us in the judiciary. Those who would attack and destroy the institution of the filibuster are attacking the very force within the Senate that creates compromise and bipartisanship.

Those who are forcing this nuclear option on the Senate are not just breaking the rules to win, but they want to break the rules to win every time.

Mind you, Durbin’s hypocrisy on the filibuster is mostly about trying to look good – for given values of ‘good’ – when it comes time to pick the next Senate Majority Leader.  The odds of Harry Reid holding that position in 2011 are currently not so much ‘slim’ as they are ‘withered.’

Moe Lane

PS: Also: “I don’t believe I was elected to the Senate to be a rubber stamp.” Interesting, because I don’t believe that you were elected to the Senate to re-segregate the DC school system on behalf of the teachers’ unions, either. Yet there you were.

Crossposted to Moe Lane.

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  • http://thesandsinstitute.org Vassar Bushmills

    ….word for word, from the floor, as if they were his own, then as a sparrow’s song drifting away on the wind, add the closing signature of “Dick Durbin, Senator, Democrat, Illinois.”

    Of course, Mitch won’t, wouldn’t, couldn’t…but hey, Durbin’s already written the script, all the GOP needs to add is the theatre.

    This is the kind of politics I think we need to convince “them” to engage in. There isn’t a thing the Dem leaders in either of the three houses in the past twenty years, from this to “Yes, I am too a man” that can’t be turned into really great theatre of the absurd..

    Build it and they will come.

  • majorkong

    As a comrade citizen of the workers’ paradise known as the People’s Republic of Illinois I have had the profound displeasure of Durbin’s presence in one of the state’s two senatorial chairs. I cannot listen to this man. He makes me only less nauseous than C. Schumer, but not much less. This guy is unctuous, cloying, disgusting, and repulsive. Unfortunately, he got re-elected in 2008, so we’ve got him for at least another six years and probably many more than that. No one with the slightest bit of sense would believe a word this man speaks.

  • Spiral

    If the Democrats had filibustered John Roberts or Sam Alito in 2006, it is likely the then Senate Majority Leader Bill Frist and Senate Majority Whip Mitch McConnell would have used the Byrd Option also known as the Constitutional Option to get around the filibuster.

    Here’s the thing we must realize, regardless of whether you support the current 60 vote cloture rule or oppose it.

    If, tommorrow, 51 United States Senators decided that they wanted to change the current cloture rule in the Senate from a 60 vote requirement to a 51 vote requirement, they could do it, without meeting the 2/3rds vote requirement as stated in Rule 5 of the Senate’s Standing Rules.

    They would simply use, what is known as the Constitutional Option, also known as the Byrd Option.

    The Senate doesn’t just run based on the Standing Rules of the Senate. Senate procedure is also based, in part, on precedent, that is, how the Senate previously has interpreted its rules. And the Senate can set new precedents at any time.

    So, if, for example, 51 Democrat US Senators wanted to pass a Health Care bill agreed to in the House-Senate Conference committee and wanted to get around the 60 vote cloture requirement (which gives 41 US Senators the option of filibustering legislation and nominations), they could simply Senate Majority Leader Harry Reid make a motion that debate on the Health Care bill should end and then have Vice President Joe Biden (the Presiding Officer of the US Senate) give a favorable ruling to Reid’s motion.

    Of course, Senator McConnell would appeal Vice President Biden’s ruling and Senator Reid would move to table McConnell’s appeal, which would result in the Senate taking an immediate up or down vote on Reid’s motion to table.

    If Reid’s motion to table were successful, on a majority vote, then there would be an up or down vote, also on a majority basis, on the Health Care conference report.

    All it takes is 51 Senators and an assist from the Vice President (the Presiding Officer of the US Senate according to the US Constitution).

  • Spiral

    Remember that the filibuster works both ways.

    When President Bush nominated Miguel Estrada to the Washington DC federal court of appeals, the Democrats knew that Estrada would win confirmation on an up or down vote in the Senate, so they filibustered his nomination.

    The result was the Senate Majority Leader Bill Frist and Senate Majority Whip Mitch McConnell began threatening to use the constitutional option the same tactic that was used in 1975 by a majority of Senators who wanted to change the filibuster from a two-thirds requirement to a three-fifths requirement.

    Here’s what Senate Jon Kyl, the Senate Republican Policy Committee chairman said in 2005 during the prolonged Senate debate over the Democrats’ judicial filibusters and the Republican threat to use the Constitutional Option:

    The Contitutional Option: The Right of the Senate to Govern Itself

    Here’s an excerpt:

    Mr. President, the Constitution is clear about the scope of the Senate?s power to govern itself. Article I, section 5, clause 2 of the Constitution states that ?Each house may determine the Rules of its Proceedings.? The Supreme Court has rarely interpreted this clause, but one case is important for our purposes, that of United States v. Ballin, 144 U.S. 1 (1892). That 1892 case dealt with the power of the majority in the House of Representatives to make rules, and contains two holdings that bear on our situation today.

    First, the Supreme Court held that the powers delegated to the House or Senate through Article I, section 5, clause 2 are powers held by a simple majority of the quorum. The Constitution states that a majority of members constitutes a quorum, and the Supreme Court, therefore, held that ?when a majority are present the house is in a position to do business.? 144 U.S. at 5. The Supreme Court continued, ?All that the Constitution requires is the presence of amajority.? 144 U.S. at 6. Thus, a majority is all the Constitution requires to make rules, to set precedents, and to operate no a day-to-day basis. The Supreme Court made this clear.

    Second, the Supreme Court held that the ?power to make rules is not one which once exercised is exhausted. It is a continuous power, always subject to be exercised by the house.? 144 U.S. at 5. By ?house,? the Court means the House of Representatives or the Senate. The import of this statement is crucial for present purposes. The power of the majority of Senators to define Senate procedures is one that exists at all times ? whether at the beginning, middle, or end of Congress.

    So, Mr. President, the constitutional background is simple and uncomplicated. We can
    govern ourselves. We can do it by majority vote. And we can do it at any time.

    Precedents are created whenever the Presiding Officer rules on a point of order, when the Senate sustains or rejects an appeal of the Presiding Officer?s ruling on a point of order, or when the Senate itself rules on a question that has been submitted to it by the Presiding Officer. As former Parliamentarian and Senate procedural expert Floyd Riddick has said, ?The precedents of the Senate are just as significant as the rules of the Senate.? [Oral History Interview, Senate Historical Office, Nov. 21, 1978, at page 429.] Let me repeat what Mr. Riddick said. ?The precedents of the Senate are just as significant as the rules of the Senate.? Indeed, as we will see, precedents have sometimes been created that directly contradict the Standing Rules of the Senate. I will return to this point later in my presentation, but I wanteveryone to remember what Mr. Riddick said.

    Senator Kyl was absolutely right. All it takes is a simple majority, not a 2/3rds supermajority, to nuke the filibuster and this can be done at any time, not just in the first week of a Senate session. The Senate could ignore the 60 vote cloture requirement on a one-time basis or it would force a vote on a rule change, after using the constitutional option to get around the 2/3rds cloture requirement on rules changes, to remove the filibuster option from the Standing Rules of the Senate.

    Either way, we are misinformed if we think that it takes 2/3rds to get rid of the filibuster.

    The Republican half of the Gang of 14 in 2005 (consisting of Senators Lincoln Chafee, Olympia Snowe, John Warner, John McCain, Lindsay Graham, Michael DeWine and Susan Collins) had decided to support Senators Frist and McConnell on the constitutional option, the Democrat minority would have been powerless to filibuster any of Bush’s judicial nominees.

  • jeffreywturner

    They could do it with 50, and have the VP break the tie.

  • jeffreywturner

    Immediately, or at the start of the next Congress?

    I would support a rules-change on nominations, to make them similar to the budget in terms of limiting debate, but not on legislation.

  • http://www.hakubi.us/ Neil Stevens

    What they can do legally is another matter.

    We were going to use that for executive calendar items to ensure the Senate could fulfill its Constitutional duty.

    Ordinary legislation was, and still is, another matter.

  • rbdwiggins

    Sen. Byrd was successful because Republican senators were cowards, Democrat senators were unethical, the Networks were compliant and the American people were uninformed or didn’t care.

    The American people are active, and the Network monopoly is toast. Not much has changed in the Senate, but the political landscape has been clearly defined.

    Only the bluest congressional districts, in the bluest of the Blue states, offer any degree of safety or comfort to congressional Democrats.

    Considering the current media/political climate, you’d be hard pressed to find a majority of senate Democrats, especially those facing reelection contests in 2010 and 2012, that would be willing to openly violate or otherwise subvert Senate Rules while the American people are watching.

    Sen. Byrd was successful because he didn’t fear the consequences, and he was allowed to get away with it.

  • Spiral

    Many on the Left are buying the Democrats’ argument when the Democrats say, “Well, we need 60 votes and we only have 59, so we can’t pass a progressive agenda in the current situation.”

    Many grass roots Democrats are bringing up the fact that when the Republican Senate leadership (Bill Frist, Mitch McConnell, Jon Kyl and Rick Santorum) threatened to use the Constitutional Option in 2005, the Democrats relented and allowed Janice Rogers Brown and other Bush nominees who had been filibustered to receive up or down votes.

    So, grass roots Democrats are starting to say to the Democrats, “If you want progressive support, you can’t just fold in the face of GOP filibusters. You have to threaten to use the Constitutional Option, just like the Republicans did when the Democrats were filibustering Bush’s extremist judicial nominees.”

    Howard Dean, Rachel Maddow are saying this.

    So, I would not be surprised if the filibuster is gutted within the next three or four months as Democrat Senators try to gin up Left-Wing support in the 2010 elections. Democrats are afraid that Left-Wing activists won’t turn out the vote in 2010 if they let 41 Republicans block them.

    Leftists like Rachel Maddow are running clips of Mitch McConnell of 2005 saying that “we need up and down votes on Presidential nominees,” and then reporting on how the latest Obama nominees to the National Labor Relations Board got filibustered.

    Now, McConnell was pointing out Democrat filibusters on judicial nominees. But Maddow isn’t mentioning that.

    The point is that many Democrats are feeling the pressure and they might decide to go nuclear, just as Bill Frist and Mitch McConnell wanted to go nuclear in 2005 when Democrats were filibustering just about every Bush judicial nominee.

  • Spiral

    If the GOP wins the White House and a majority in the US Senate in the 2012 elections, the Democrats might filibuster all judicial nominees, including nominees to the US Supreme Court, saying “These are right-wing extremist nominees who will try to over turn Roe vs. Wade.”

    We know how the GOP Senate in 2005-2006 dealt with that Democrat behavior.

    So, we have to look past the current situation and realize that eventually, one party or the other party is going to see a need to use the Constitutional Option to break the filibuster with a simple majority of the Senate (or 50 Senators and the Vice President breaking the tie).

    It’s going to happen because the two parties have become so polarized on issues like judicial nominees, health care, nominees to the National Labor Relations Board, Cap ‘n Trade and other issues.

    Eventually the pressure on the majority party of the time by the activist wing of that party is going to be overwhelming.

    I mean, could you imagine how mad conservatives would be if a President caved in to a Democrat Senate Minority and, instead of nominating a highly qualified conservative to the US Supreme Court, nominated a moderate unqualified person because he feared a Democrat filibuster?

    Sound familiar?

    Sound a little like the Harriet Miers nomination?

    Yep. Of course, President Bush had to withdraw that nomination and noninate Sam Alito instead.

    But you can see how the conservative wing of the GOP, including me, won’t buy the argument from a Republican President and a Republican majority Senate if they say, “Well, we wanted to nominate someone in the mold of Antonin Scalia or Clarence Thomas. But 41 Democrat Senators said they would filibuster. So we had to nominate a squish to the Supreme Court. You conservatives will have to wait another 30 years to see Roe vs. Wade overturned.”

    No. That won’t fly. Conservtives would demand that the Republican Senate majority nuke the Democrats by using the Constitutional option to bypass the filibuster on a majority vote.

    The Democrats in the Senate current face a similar level of pressure. They know that their complaints about GOP obstructionism doesn’t convince many people on the grass roots Left.

    I think the days of the filibuster are numbered.

  • bs

    They know they need the Independents’ support. That’s why Scott Brown’s election scares the living crap out of them. Any attempt to screw with the filibuster will wipe out the support of virtually every “I” out there. They won’t be able to get elected to the PTA with the small core of radical leftists who are calling for this. This is why it is so critical that we keep the support of independents. They are the key to 2010 and 2012.

  • rbdwiggins

    Even when combined with the standard voting blocks normally associated with the Democrats.

    Voting present on the economy, spending money we don’t have and running-up huge debts while negotiating in secret for a radical take-over of the health care industry pretty much sealed the Democrats’ electoral fate for 2010 by alienating independent voters.

    How bad those losses will be depends on what the Democrats do next, and Scot Brown gave them a clear indication of just how bad things could get.

    If Forty-five wants to nominate another Scalia or Thomas, then conservatives need to elect at least 60 conservative senators during the 2010/2012 cycles.

  • http://www.downstateiladvocate.com anacreon

    I raise my bottle of Budweiser to you!

  • Spiral

    We can say that getting rid of the filibuster for judicial nominees was one thing and getting rid of the filibuster for ordinary legislation is another.

    But what if the Senate had 58 US Senators in favor of medical liability reform or product liability reform?

    I can see an excellent argument against letting 42 US Senator bought and paid for by the trial lawyers being able to prevent the nation from enjoying the benefits of tort reform.

    Similarly, getting back to the 2005-2006 arguments, what if 41 Democrats had refused to vote for cloture for John Roberts or Sam Alito?

    I see no reason why the majority of the Senate, at that time Republican, should have allowed the Barbara Boxers and Chuck Schmers to defeat highly qualified constitutionalist nominees for the US Supreme Court.

    That’s why Senators Frist, McConnell, Kyl and Santorum (and backed up by Vice President Dick Cheney) supported the idea of having a simple majority of US Senators to get around the filibustering of judicial nominees.

    Now, you can make an argument that filibustering judicial nominees should not be allowed, but filibustering health care legislation should be allowed.

    Sure. But in reality, a Senate can junk either filibuster at any time by a simple majority vote using the Constitutional Option that Senators Frist, McConnell, Kyl and Santorum spoke of in 2005.

    In fact, the threat of using the Constitutional Option is what got the Gang of 14 to cut a deal.

    Remember the GOP half of the Gang of 14 that wanted to prevent the nuking of the judicial filibusters?

    Snowe
    Collins
    Warner
    DeWine
    Chafee
    Graham
    McCain

    Those were the Republicans who wanted to preserve the fillibuster. McCain said that the GOP should want to preserve the judicial filibuster so that the GOP could filibuster liberal judicial nominees.

    But how credible was McCain when he said that? Given that McCain did not filibuster a single Clinton judicial nominee and voted for Ruth Bader Ginsberg and Stephen Breyer to be on the US Supreme Court, even though Ginsberg was an ACLU General Council that supported lowering the age of sexual consent to age 12.

    So, when Republicans like McCain talk about how “we need to be fair to the Democrats so that they will be fair to us,” this sounds a bit like “We shouldn’t waterboard captured terrorists so that the terrorists won’t do mean things to our soldiers when they get captured by the terrorists.”

  • Spiral

    Let’s imagine that in 2013, we have a Republican President and a Republican US Senate majority of 56 Republicans to 44 Democrats.

    If the Republican President nominees a good conservative constitutionalist and 41 Democrats filibuster that nominee, I doubt many conservatives would support the concept that this nominee has been defeated by a minority vote.

    John McCain took that position in 2005. But he took a lot of heat for that position because he actually voted for Ruth Bader Ginsberg and Stephen Breyer and didn’t filibuster a single Clinton judicial nominee.

    Robert Bork, however, supported the nuclear option.

    So did Dick Cheney, the Vice President. So did Rick Santorum. So did Bill Frist, Mitch McConnell and Jon Kyl.

    Most conservatives will not just say, “Oh well. I guess we only have 56 Republicans. So, we’ll have to get the conservative nominees to the US Supreme Court to withdraw his nomination in defeat even though a majority supported his confirmation and he (or she) is highly qualified.”

    Republicans would demand that the Constitutional Option be deployed and rightly so.

  • http://www.hakubi.us/ Neil Stevens

    Tort reform is legislation. Filibustering it does not prevent the Senate from giving its advice to the President on his nominee.

  • Spiral

    Nuking a filibuster against tort reform my be considered a patriotic duty.

    I would certainly support it.

    Put it this way, if a minority of Senators filibusters either a conservative judicial nominee or conservative legislation, I would support using the Constitutional Option to get around the 60 vote cloture requirement.

    Until the Constitution is amended to require 60 votes on either legislation or confirmations of nominees, I will support majority rule when the GOP is in the majority and filibustering when the GOP is in the minority.

    I don’t want the GOP playing nice with Democrats based on a Senate Rule that can actually be changed by a simple majority vote at any time.

    The filibuster was not supported or even thought of by the drafters of the Constitution. We should not pretend that it was.

    The filibuster option was created by accident, by the oversight of Vice President Aaron Burr.

  • http://www.hakubi.us/ Neil Stevens

    The filibuster helps make the Senate the cooling saucer the framers intended.

  • Spiral

    The filibuster emerged as an accident, an oversight of Vice President Aaron Burr.

    There is nothing in the Constitution that indicates that the Senate was supposed to operate on a supermajority basis.

    Sure, the Constitution did say that the State Legislatures would fill US Senate seats.

    Sure, the Constitution does still say that one third of the US Senate will be elected for 6 years terms every 2 years.

    But this has nothing to do with the filibuster, which emerged as an accident, an oversight of Vice President Aaron Burr.

    Under Presidents George Washington and John Adams, there was no filibuster. A simple majority of the US Senate could end debate using by calling for the “previous question.”

    Now, if you like the 60 vote cloture requirement, fine. If you don’t like the 60 vote cloture requirement, that’s fine too.

    If you are like me, you like the 60 vote cloture requirement when the GOP is in the minority of the Senate and you have misgivings about the 60 vote cloture requirement when Miguel Estrada is filibustered by Barbara Boxer and Chuck Schumer for being a right wing extremist (according to the Leftist nutjobs).

    All I’m saying is let’s not say things that are not true in support of the filibuster just because the filibuster is helping us at this moment.

    If in the future a highly qualified US Supreme Court nominee is filibustered by a minority of the Senate, I will demand that the GOP use the Constitutional Option to get that nominee confirmed.

    And it won’t make James Madison roll over in his grave either. Again, the filibuster ain’t in the Constitution and James Madison didn’t intend it to be there.

  • http://www.hakubi.us/ Neil Stevens

    I said it’s in line with the intent of the Senate.

    So I’m not sure what your point is.

  • rbdwiggins

    under a 56 – 44 scenario is to persuade at least four Democrat senators to vote for cloture on the nominee, or eleven Democrat senators to vote to change the Senate Rules regarding judicial nominees.

    Absent success, hold the Democrats accountable in 2014, and assuming a majority of the electorate is like-minded, confirm the nominee in 2015.

  • Spiral

    My point is two-fold:

    (1) The framers of the US Constitution thought that both the US House of Representatives and the US Senate would conduct business on the a majority vote basis. That’s why the US Constitution requires a simple majority of its members to be present in order to conduct business, a quorum.

    At the Constitutional Convention there was a suggestion that a super-majority be required to conduct business. This idea was rejected based on the idea that the minority should not be able to prevent the majority from conducting business.

    In addition, the US Constitution gives the Vice President the tie-breaking vote. Obviously, the framers of the US Constitution did not for a moment think that this tie breaking vote would be nullified by Senate Rule that would require a supermajority to close debate on an item of Senate business.

    (2) Unlike other checks and balances that are in the Constitution, Rule 22 of the US Senate, can be ignored or changed at any time by a simple majority of the Senate. Therefore, arguing in favor of the filibuster without going to the trouble of placing that super-majority requirement in the US Constitution, leaves conservatives vulnerable to a “heads the liberals win, tails the conservatives lose” situation.

    We saw this situation when it came to judicial nominees during the 1990s and early 2000s.

    In the 1990s, under Clinton, it was considered bad form to filibuster judicial nominees, even if Clinton nominated a Left-Wing judicial activist.

    In the 2000s, under Bush, it was considered “an important check on majority rule” to filibuster a conservative, constitutionalist judicial nominee.

    Somehow this sort of confused thinking is a great way to preserve and protect our great Republic, even as liberal judicial nominees get confirmed by up or down votes in the US Senate and conservative judicial nominees get filibustered. (Miguel Estrada is practicing law. He is not a federal judge. He was successfully filibustered by a Democrat Senate minority.)

    Conservatives need to understand that Senate procedures have changed over time, sometimes by a simple majority vote in the middle of a Senate session. If they don’t, they will be rolled by the Left, as they cling to “important checks and balances” that turn out to be vulnerable to the very majorities that they are designed to protect against.

  • Spiral

    McCain fooled a lot of conservatives by saying, in the middle of the debate over the Democrats’ judicial filibusters of Bush’s conservative judicial nominees, “We need to keep the judicial filibuster, because we might want to filibuster a liberal judicial nominee.”

    McCain knew that most conservatives did not know or remember that McCain never filibustered a single Clinton nominee for the federal court of appeals and actually voted for Ruth Bader Ginsberg and Stephen Breyer to the US Supreme Court.

    So, McCain knew that the judicial filibuster option was more beneficial to the Left than it was to the Right, because the Right had not deployed the judicial filibuster against Clinton’s nominees, but the Left filibustered nearly all of Bush’s nominees to the federal court of appeals.

    But McCain made himself sound like a principled defender of the US Constitution, even as he was carrying water for Leftists like Barbara Boxer and Chuck Schumer, who wanted to retain the judicial filibuster for the purpose of keeping constitutionalist judges off of the federal court of appeals and the US Supreme Court.

    It was only when Senators Frist, McConnell, Kyl and Santorum along with Vice President Cheney, threatened to use the Constitutional Option to end judicial filibusters on a majority vote did the judicial filibusters stop. Still, conservatives had to let some good nominees withdraw without a vote and some conservatives judicial nominees were so disgusted with the process that they gave up and went back to practicing law in the private sector.

    This is what the Left wants. An endless debate that deters conservatives from even being interested in being nominated for the federal court of appeals or the US Supreme Court.

  • Spiral

    I disagree. The right course of action would be to use the Constitutional Option, forcing an up or down vote on whether a judicial nominee should be voted on.

    Force wimpy Republicans like Lindsay Graham and John McCain to defend themselves as they vote with the filibusterers like Barbara Boxer and Chuck Schumer.

    Let’s find out which Republicans really support putting conservative, constitutionalist judges on the federal court of appeals and which do not.

    The idea that 41 Leftist US Senators should be able to block a qualified conservative judicial nominee is unacceptable and conservatives should refuse to support any Republican US Senator who says that this is acceptable.

    This was one of many reasons why John McCain was unacceptable as a candidate for President and why he is unacceptable as a candidate for US Senate. I don’t live in Arizona, but if I did, I could not support McCain in the primary or in the general.

    Republican US Senators who care more about a silly Senate Rule and less about the composition of the federal courts do not deserve the support of conservatives.

  • dajeeps

    The filibuster debate is simply about who gets to smash whom and how hard with power that Congress was never intended to have. Perhpas not over judicial nominees, but just about everything else.

    Senators are foxes guarding the henhouse and we expect them to discipline themselves over the manner in which they poach the hens? We would not necessarily need a “cooling saucer” if Congress did not take liberty with our rights endowed by our creator or those resevered to states. Did Arron Burr delete the senate rule regarding cloture to slow down or stop the Jeffersonians from cleaning up the mess the Federalists made? It’s nice to know he did that, but the more important question is why.

    The constitution either means something or it does not. So it doesn’t say how the Senate should operate, but it does say what it can operate on which is widely ignored and trampled at every opportunity, every budget, every new social program, evey farm bill, and every bailout.

  • http://www.hakubi.us/ Neil Stevens

    People are what they are.

  • Spiral

    During the Presidential terms of George Washington and John Adams, the Senate had a previous question rule whereby a majority of Senators could force a vote on an item of Senate business. (Shall the previous question be put to the Senate?)

    Under President Thomas Jefferson, Aaron Burr was Vice President and, apparently, he noticed in a review of Senate rules, that the previous question had only been used once. This might have been because in the early years of the Senate, delaying and wasting time tactics were considered wrong and frowned upon. So, Vice President Aaron Burr deleted the previous question rule and the Senate had no clear means of ending debate.

    The first cloture rule was created in 1917. The US House had produced an Armed Ship Bill, to allow for the arming of merchant ships, given that Germany had begun unstricted submarine warfare on the high seas. The Senate was in favor of the Armed Ship Bill too. But 11 isolationist US Senators led by Wisconsin Senator Robert La Follette filibustered the Armed Ship Bill and the Senate expired on March 4, 1917 without passing that legislation.

    Imagine how weak the United States looked during World War One, when a small minority of US Senators were able to prevent a vote on legislation that would protect merchant ships from enemy German submarines.

    President Wilson called for a special session, to get the Armed Ship Bill passed.

    During that Special Session Senators Thomas Walsh (Democrat – Montana) argued that the US Constitution allowed a majority of US Senators to change the Senate’s procedures so that it would be able to end debate on legislation.

    Not all of the US Senators in favor of filibuster reform agreed with Senator Walsh. But on March 8, 1917, the Senate passed filibuster reform, allowing the Senate to end debate upon a cloture vote in which two-thirds of Senators voting voted “Aye.”

    In 1975 Senator Walter Mondale (Democrat – Minnesota) led an effort to change the cloture requirement from two-thirds of Senators voting to three-fifths of Senators voting. Senator Mondale also argued that the US Constitution gave a simple majority of the Senate the right to change or add Senate rules and procedures.

    Eventually, after months of debate, on March 7, 1975, the Senate voted to amend Rule 22 of the US Senate to three-fifths of all Senators from the previous Rule 22 that required two-thirds of all Senators voting to close debate on Senate business.

  • dajeeps

    And the filibuster is a flimsy substitute for discipline after all other constitutional buffers have been broken down. We have nothing but that and it can be overridden in the blink of an eye. Just imagine a Senate full of Obamas who care only about getting what they want and very little about what happens to themselves afterward. The filibuster does nothing to stop them and it also does nothing to facillitate putting Fedzilla back in it’s cage. It’s nothing but a red herring.

  • Spiral

    If we need a cooling saucer, a couple of questions:

    (1) Why is budget reconciliation exempt from the 60 vote cloture requirement, based on the 1974 Budget Act? Doesn’t this mean that budget reconciliation is passed without careful deliberation?

    (2) Why is a 60 vote cloture requirement considered acceptable? Wouldn’t a 75 vote cloture requirement more adequately perform the task of “cooling” decisions of Congress? Or would a 55 vote cloture requirement be better than the current 60 vote cloture requirement? Or would a change in Rule 22 of the US Senate stating that the number of votes required for cloture be gradually reduced, 60 on an initial cloture vote, 57 on a second cloture vote, 54 on a third cloture vote and 51 on a fourth cloture vote, be better than the current rule?

    (3) If a cooling saucer is needed in the form of a supermajority vote requirement to end debate in the US Senate, why is this supermajority requirement not located anywhere in the US Constitution? Why did the US Constitution provide that

    Article One, Section Five:

    Each house shall be the judge of the elections, returns and qualifications of its own members, and a majority of each shall constitute a quorum to do business;

    Why did Article One, Section Five state that it takes a two-thirds vote to expel a member, but not state that it takes a supermajority to end debate in the US Senate? Why did the US Constitution give the Vice President the power to cast tie-breaking votes if a simple majority was to be considered “mob rule?”

    Clearly this “cooling saucer” in the form of a supermajority requirement to end debate in the US Senate is foreign to the US Constitution.

  • dajeeps

    is because he was, from most accounts I have read, a rather unsavory character who was closely tied to Alexander Hamilton in the early years. He switched parties when the Federalist Party, of which he had been a part, was on the brink of collapse. Politicians may have been a completely different kind of character than ones we have today, but I view him as a more gutsy Arlen Spector type and with a bit of cynacism after he had been involved in the power madness that had been the Federalist Party.

    Additionally, the VP slot was given to the guy who came in second place in the Presidentail election and by no means implied any sort of endorsement by the winner, who was Thomas Jefferson.

    I suppose it’s possible that it was an innocent sort of cleaning up of the rules as I don’t have a good idea of the political context of the time. But if monkeying around with the rules happens today I think most of us would suspect it was to gain some sort of advantage.

  • dajeeps

    My point is that I believe that the text constitution no longer matters as there are many, many things that go on in daily business that are also foreign to both the text and spirit.

    Why is it that it’s just fine to forget what it says in most places and then quibble over details that have little to no consequence to our situation at all?

    The naked truth is that it is moot in more ways than I can count and we have next to nothing of it left to stand between us and utter tyranny.

  • Martin Knight

    … that the Democrats would sit back and let Republicans have the filibuster while in the minority but be denied the same when they are in the minority?

  • Spiral

    What makes you think that the Democrats would sit back and let Republicans have the filibuster while in the minority but be denied the same when they are in the minority.

    I expect that if the Democrats find themselves in the minority of the Senate, and if a Republican wins the White House, the Democrats will filibuster the Presidents nominees to the federal court of appeals and, perhaps, the US Supreme Court.

    I expect this because this is what they did or wanted to do under President Bush. The Democrats as a minority of the Senate denied Miguel Estrada an up or down vote on his nomination to the Washington DC circuit court of appeals.

    My argument back in 2003 through 2006 was that the Republicans should use the Constitutional Option to force an up or down vote on Bush’s nominees to the federal court of appeals.

    This is what Vice President Dick Cheney endorsed. It is also what Senators Bill Frist, Mitch McConnell, Jon Kyl and Rick Santorum threatened to do.

    But then the Republican half of the Gang of 14 went against their party. The Republican half of the Gang of 14 was John Warner, Susan Collins, Olympia Snowe, Lincoln Chafee, Michael DeWine, Lindsay Graham and John McCain.

    The Gang of 14 allowed some of Bush’s judicial nominees to be defeated without an up or down vote of the US Senate.

    What I am saying is that the current conservative tendency to celebrate the filibuster as a fantastic check and balance against mob rule is misplaced. If the GOP gains the majority of the Senate and the White House, the GOP should use its powers under the US Constitution to either ignore or change the 60 vote requirement for cloture on judicial nominees.

    I get nervous when conservatives make it sound like the framers of the constitution expected the US Senate to have “unlimited debate.” On its face, unlimited debate is an absurd idea. And unlimited debate can not be found in the US Constitution, nor does James Madison endorse the concept of unlimited debate. Nor does the US Constitution endorse the idea that a supermajority is required to end debate in the US Senate.

  • Spiral

    I should mention that Senate rules have not stayed the same for the past two hundred plus years.

    Senate rules have changed. Sometimes these rule changes have been forced by the threat of the Constitutional Option, the right of a simple majority of Senators to change the rules of the Senate at any time during a Senate session (not just during the beginning of a Senate session).

    Senate procedure has changed too. There have been instances when Senate procedure has changed even though no Standing Rule of the Senate was changed. Sometimes Senate procedure was changed to the point where the procedured directly contradict the Standing Rules of the Senate.

    Conservatives should not worship the Rules of the Senate as though they were part of James Madison’s grand design. Conservatives should understand that if the Democrats filibuster conservative legislation and/or nominees, at some futurre time when the GOP holds the White House and the Senate majority, the GOP is under no moral, legal or constitutional obligation to put up with the Democrats’ obstruction.

    The framers of the US Constitution expected the US Senate to conduct itself on a majority basis just as the US House of Representatives does, except in specified circumstances. The framers of the US Constitution did not support the absurd concept of unlimited debate, which, if taken literally, would mean that no issue would ever be voted on.

  • mkirschmd

    @Spiral, good points. Dems against fillibuster only when it serves them. Their hipocracy is transparent, unlike their HCR deliberations. The upcoming health care reform summit is a total sham, and everyone knows it. It’s all theater. See current posting at www.MDWhistleblower.blogspot.com

  • rbdwiggins

    regarding judicial nominees. The Executive is entitled to an up or down vote on his Judicial Nominees.

    In reality, it’s bad policy.

    Regarding the 113th Congress: The only reason a 56-44 Republican majority in the US Senate is even a possiblility… Obama and the Democrats have overreached and alienated independent voters.

    If your goal is to grow a conservative Republican majority in both houses of congress going forward, then the constitutional option is off the table.

    In the current political climate, implementation of the constitutional option may get one conservative judicial nominee confirmed, but because of a perceived abuse of power by the majority, the risk of alienating independent voters and handing control of congress back to the Democrats in 2014 far outweighs any benefit that could be gained from its implementation.

    The constitutional option doesn’t address the legislative calender. In retaliation for its implementation, the minority would obstruct nearly every important piece of legislation put forward, and you’d be forced to battle a hostile press because of your prior “abuse of power” while defending your “extreme right wing agenda” to an electorate that doesn’t really trust Republicans.

    At that point, do you work to educate the electorate and expand the Republican majority, or subvert Senate Rules again and end the filibuster using the nuclear option?

    If you choose the later, independent voters will likely perceive both controversial actions to be actual abuses of power by the majority, and they will act accordingly in 2014.

    Now, because of your actions, you’re subject to the law of unintended consequences, and one of the most important legislative safeguards has been removed.

    2016 looms as you face a hostile press and an emboldened congressional majority, and your only remaining defense is a lame-duck President and the Presidential Veto.

    Your only hope: The Democrats overreach legislatively, and you’re able to convince the electorate that no matter how bad they thought the 113th Congress was under Republican control, the 114th Congress under Democrat control was much worse. Sound familiar?

    I’m confident going forward, that growing the conservative majority through education, patients and hard work is the correct election strategy, and clearly, that strategy would be more beneficial to the Republic than acting on impulse.