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Re-Thinking the Filibuster

By: Steve Maley (Diary)  |  December 22nd, 2010 at 07:00 AM  | 

RESIZE: AAA

President Obama and Senate Democrats have recently floated the idea that it’s time to get rid of the filibuster. So the argument goes, the filibuster is an anti-democratic obstacle that prevents good government and rule by the will of the people.

It’s a valid point.

Come to think of it, the Senate is chock-full of anti-democratic anachronisms. First off, two senators represent each state, regardless of population. What happened to one person, one vote?

And six-year, staggered terms: what’s up with that? It’s another feature that seems designed to make the Senate independent of the will of the people.

So, what do you have if you take the Senate and strip away its anachronistic anti-democratic features? The filibuster, staggered six-year terms, and disproportionate representation?

You have the House of Representatives.

The voters have spoken. Republicans will control the next House by 242-193.

If that proportion translated to the Senate, Republicans would have an advantage of 56-44.

Democrats owe their current majority in the Senate to those anachronistic features that put some difference between the body and the will of the people.

The bottom line is this: the Senate was never intended to be a democratic body, a reflection of one man, one vote. It is a deliberative body, and a consensus-building body. The filibuster has an important role to play in making that possible.

[In case you missed it, Brian Darling took a good look at the Democrats' hypocrisy on the issue here. Although, in fairness, I think Sen. Robert Byrd had the integrity and the respect for the traditions of the body that he would have supported the filibuster despite his party's short-term self-interest.]

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  • reddog53

    You are right on target!

    The Senate was intended to dampen out some of the swings made possible by the House, and to ensure that changes were made that made sense in the long view. Everyone needs to remember that, even the revolutionaries trying to change the Executive Branch!

    • gpclaw

      Our purpose of the Senate was to represent the states not the the people. The reason for 2 senators from each state was to prevent the large states from imposing their will on the small states. Because the Senate was intended to represent the states, Senators were appointed by the state legislature, not elected by the people. This was changed when the 17th amendment was ratified.

      We now see why the founders intended for Senators to be appointed by the states. The federal government was created because the states, who had complete sovereignty at the time, decided to relinquish some of their power to a central government because their were areas that required the states to work collectively not individually. Defense is obvious, but it was also important to the states that the rules for trade were regular with every state as opposed to everyone having their own rules. But the States also wanted to ensure that the body THEY creates did not work against their interests.

      If Senators were still appointed by state legislatures, we wouldn’t be dealing with individual mandates, medicaid, social security and the like. Not to say that similar programs may not have been established, but the states would have more say in the structure of these programs. The vast expansion of the federal government since the ratification of the 18th amendment is no coincidence. The states, who created the federal government, no longer have any power when it comes to limiting the power of their baby

      • The_Gadfly

        so many anti-18th amendment posters see to preventing the development of leviathan. From the tone of the postings I know they are plain as day to you, but when I look I see nothing. If the small states were mostly conservative, we should have a conservative Senate regardless of the location of the electorate, regardless of whether the State appoints or the populous elects. Yet as Vlad points out, it is in precisely that body where Democrats hold, and generally have held power during the current phases of conservative ascendancy.

        • tobytucker

          When the 17th Amendment dictated the popular election of Senators, their loyalty was now to their particular party rather to their State. This was not quite as severe a problem as it is today, seeing as there used to be such a thing as a conservative Democrat. Now days the “progressives” have completely hijacked the Democrat party and any Democrat Senator must abide by their agenda whether or not it is in their State’s interest. While there are moderate “Blue Dog” Democrats, they certainly aren’t a driving force in Democrat politics.

          • gpclaw

            Once the 17th amendment was ratified, senators were no longer accountable to their respective state legislatures.

            Besides, repealing the 17th amendment doesn’t mean the end of direct elections for senators. Prior to the ratification of the 17th amendment, numerous states already appointed Senators by direct election. By ratifying the amendment, it took choice away from the citizens of the states by creating a one size fits all process for the country. Also, by leaving the power to decide the process of electing senators to the states, they would also have the power to enact things like term limits.

            Even if the 17th amendment were repealed, senators would most likely still be directly elected. The difference would be the states having a larger say in the process based on the will of the citizens of their state vs the will of the nation.

          • The_Gadfly

            You assume that the states themselves wouldn’t want the Progressive agenda. I see no such restraint on them. I think that big populous states would be as likely to want the Progressive agenda. And wrapped in the reformer banner, they could get enough little states to join them. We’d wind up with the same result, just by a different path.

        • gpclaw

          It has less to do with Liberal vs Conservative and more to do with states rights vs an all power federal government. Even the most liberal state government doesn’t want to cede power to the federal government. It’s no coincidence that only after the 17th amendment was ratified did we start to see a massive expansion of the commerce clause. Yes, this also has to do with a more liberal supreme court under FDR, however, the Supreme Court can only make decisions on cases it is presented. When congress passes a law against the interests of the states, and then those laws are challenged in the courts, only then does the court get an opportunity to make decisions that may have the effect of increasing federal power.

          • Locke

            both practical and theotretical. Apart from making their grand schemes harder, state autonomy is a logical extension of individual autonomy.

  • http://impudent.edublogs.org/ kyle8

    I have looked at the major issues that have faced the US congress in the last twenty or so years and come to a startling conclusion.

    If all of those issues had been up for a direct vote by the people, we conservatives would have won almost every battle. (according to polls)

    So representative democracy seems to be perpetuating an unwanted liberalism. (at least in modern times. )

    • ohiohistorian

      The vote is rife with liberalism over the last 20 years. Especially the last two. C’mon, let’s not go here. Remember how the Republicans couldn’t even FIND a conservative, much less field one? Remember 52-47 for Obama? Remember the 2006 turn-over of Congress? Billy Clinton’s two wins over more conservative candidates (conservatives chose to split the vote).

      You cannot be even partially serious with this statement.

      While the voting age population is largely conservative, there is a substantial segment of that body that believe it is not God’s will to vote, so they don’t. So liberals go out and even have the dearly departed vote for their side. Guess who wins?

      • http://impudent.edublogs.org/ kyle8

        You need to read more closely. I said issues put up to direct vote. Not representatives.

        Yes, the democrats have won some elections, mostly because the republicans screwed up so bad. But in issue after issue, taxes, regulations, subsidies, foreign policy, etc. the polls show that the people support the conservative position, sometimes by large margins.

        • Adjoran

          and not revealing their true colors until they get to D.C.

  • BigGator5

    Like I said to Brian Darling, I hope you fight for the filibuster when Republicans are in power in the Senate.

    Now you may have, in 2005, fought against Republicans removing the filibuster on nominees. I don’t know and the past is the past. However now we know that the idea of a permanent majority is nothing but a pipe dream. I hope you will remind the people, with all due respect, that nothing lasts forever.

    • mustango

      Why don’t we settle for respecting the filibuster as a necessary fact of government, and perhaps *try* to convince the other party that run-of-the-mill judicial appointments were not an intended use of the filibuster?

      Fair enough?

      • ohiohistorian

        It was when the Dems had a 62 seat majority in the Senate that they dreamed up the 60-vote filibuster. I remember that Robert Byrd was in it all the way up to his earlobes. So, now that they can’t muster 60, it is time to reduce it still farther/obliterate it. So let’s instead take it back to a true “minority rights” method so that the Senate leadership can’t run over the minority the way that the Pelosi house did by their rewrite of their rules.

        The reason the Republicans have had so many filibuster votes is that the Dems have made them. They have not done the same. A perfect example is the bank oversight of Fannie and Freddie. It passed the House (I think 2005), but the Democrats in the Senate threatend a filibuster, so it died in committee. http://www.factcheck.org/elections-2008/who_caused_the_economic_crisis.html The spineless fool Republicans, led by the stupid Trent Lott, did not force the Democrats to stand up and vote it down. The result? The abominable Pelosi/Reid report by a Democrat majority led by former Apollo Alliance head Phillip Angelides that it was greedy businesses and the Republicans that caused the 2007 economic meltdown.

        The filibuster needs to remain, and the Republicans need to continue to use it. It is too bad that sellouts like Voinovich, the Boobsey twins from Maine, and several others that let that START treaty abomination through without a full hearing in a lame-duck Senate. A higher filibuster threshold would have prevented this travesty.

        • cwilson

          The difference was, cloture USED to require 2/3 of all Senators present. In effect, this meant that all of the filibustering Senators had to be continually present on the floor to continue the filibuster; otherwise, those in favor of cloture could simply show up and vote once, and shut it down.

          The new (1976) rules stated 3/5 of all Senators: that is, 60 senators are required for cloture. Thus, the filibustering side didn’t need to stay on the floor; just one Senator would do: the pro-cloture side either did or did not have 60 votes — how many anti-cloture people were present in the Senate chamber had no bearing.

          Thus, the rule change made it less costly to filibuster — and statistics show we got more and more of them.

          Then, there was the whole “dual track” system, where one vote could be “filibustered” while the Senate could continue business on the “alternate track”. Yet again, making the filibuster itself less costly to perform. The combination of these two changes led to the record number of filibusters we’ve seen in the last decade or two — and that the “filibusters” were FINOs — Mr. Smith is no more.

          As far as BigGator’s comment goes, he is doing it again: he’s ignoring the difference between ordinary legislation and executive/judicial appointments. In 2005 (actually, the argument was given prominence in the 2002 AND 2004 elections, so it predates 2005 somewhat) the Republicans NEVER said or even wanted to end the ordinary use of the filibuster regarding legislation. They were apposed to the almost ENTIRELY [*] novel use of the filibuster with regards to judicial appointments, which interfered with the advise/consent DUTY of the Senate.

          [*] Only one judicial appointment had ever been filibustered before, and that was the corrupt Abe Fortas. The “filibuster” in that case was both bipartisan, and it was further evident that Fortas wouldn’t have been confirmed on the merits…so the “filibuster” lasted I think 4 days. Not 20 months, as some of W’s appellate judicial appointees were.

          • jeffreywturner

            But there a time when there wasn’t even a 2/3 rule? That is, isn’t it true that originally, 2 Senators taking turns could filibuster indefinitely?

          • Adjoran

            Even one Senator could hold the floor as long as he could (Strom Thurmond still holds the individual record at over 24 consecutive hours speaking.

            The House also had no limit on debate until the early 19th Century, but their greater numbers made some limits practically necessary.

            The first “cloture” rule to shut off debate in the Senate was adopted in 1917, allowing a 2/3 majority to cut off debate, but as has been described above by cwilson, the “present and voting” requirement actually made filibusters harder to sustain than with the set number of 60.

            The change to 60 came in 1975, after the Watergate landslide gave Democrats a huge, but not quite 2/3, majority in the Senate.

          • jeffreywturner

            So the way it once was, 2 Senators could permanently block anything that wanted to (ie: one talks while the other sleeps).

      • BigGator5

        Yeah, just what we need: Another Elena Kagan, Timothy Geithner, Eric Holder and a completely unchecked Obama Administration.

        You’re right. That seems fair.

        • cwilson

          …obviously we did not. So what are you talking about?

          • BigGator5

            I’m just pointing out what happens when we can’t filibuster nominees.

            You’re hoping that in 2012 we have control of the Senate and the White House, but fear that we won’t get to the 60-vote majority. You assume too much and, in the mean time, give the power to Obama fire and hire whoever he wants.

            I cannot believe you would allow yet another Elena Kagan on the Supreme Court JUST as we gain the power to stop such an appointment. “Advise and Consent” is not meant as a rubber stamp to anyone, not even George W Bush or have you completely forgotten all about Harriet Miers? Should we have just let her on the Supreme Court?

          • cwilson

            She was stopped thru ordinary political pressure, and eventually withdrew because she would not have garnered 51 votes.

            And notice that even WITH 60 votes in the Senate, Teh Won STILL did not feel he could nominate just any wacko to any position — that’s why the most egregious of his political appointees were made “czars” (37 at last count) and not cabinet officials. Yet, the Unicorn King felt he had to do this EVEN THOUGH his party had 60 votes in the Senate?

            Why? Why wasn’t Van Jones nominated for HUD?

            Because the advise and consent role is still taken seriously enough, even by a few Democrats, that they won’t simply rubber stamp every nomination. However, they still do have a DUTY to allow each nomination to work its way thru the normal Senate process for such consent. While that process does seem to have a long history of things like “blue slips” and “voted down in committee” going back to the Washington administration…it doesn’t, and shouldn’t, include the filibuster.

            At least, it never had until the Democrats pulled it on W’s appellate justices (Abe Fortas is the exception that proves the rule.)

            I make NO assumptions about what will happen in 2012. Hell, given the performance this week, I’m not sure the R’s will make ANY gains in the Senate — or even avoid losses. And Obama still has a navigable path to re-election, even given the new Census data.

            You’re the one who continually conflates two different items: legislative and nomination filibusters — and when called on that, you move the goalposts to claiming that NOT filibustering nominations is akin to rubber stamping all nominations. Because, in your world, no nomination ever lost a straight up or down vote — or withdrew prior to such a vote given a clear lack of support. Oddly, Harriet Miers was JUST such an event: her case supports my argument, not yours.

          • BigGator5

            I honestly can’t believe I am debating, here on RedState, the idea of giving away more power to a power mad executive branch. Have I really step through the Looking Glass?

            I make NO assumptions about what will happen in 2012. Hell, given the performance this week, I?m not sure the R?s will make ANY gains in the Senate – or even avoid losses. And Obama still has a navigable path to re-election, even given the new Census data.

            And you want to give Obama MORE power? Just look at what is going on at the FCC, the NLRB, and the EPA right now. The Obama Administration has almost become the legislator through executive fiat and YOU want to give Obama more power to do whatever he wants. The idea is to limit the damage he will do to this country, not the other way around. You want the filibuster to be more costly, but right now the executive brunch is out of control. I think the filibuster should be less costly.

            Gridlock? Like Rush Limbaugh, I believe gridlock is good “when you have an administration hellbent on destroying the nation’s economy” or the nation as a whole,

            And I have never moved the goalpost down. I think we should keep the filibuster in place for both legislation and executive/judicial appointments, period. I don’t care who controls what, end of discussion.

          • cwilson

            And all the “power” you claim I want to “give” him? He — and every president before him EXCEPT George W. Bush — already has it. It’s the right to expect the Senate will fulfill its constitutional obligation to consider as a body each of his nominations, according to its normal processes EXCLUDING the filibuster. Sometimes the win. Sometimes they lose. But they should never be held in limbo.

            No other president (except W) has ever had to worry about his nominations — judicial or executive — being filibustered. Blocked in committee, yes. Voted down on the Senate floor, yes. Blue slipped by a home-state Senator, yes. But not filibustered.

            And yes, let’s LOOK at what the FCC, NRLB, and EPA are doing: all WITHOUT any check by nominative process AT ALL — so your solution (of following the Dems down the road to hell) would NOT HELP.

            And your goalpost-moving is obvious to any with eyes: “keep the filibuster in place” indeed — without acknowledging it was Bush Derangement Syndrome that PUT IT THERE for W and W alone in all of American History. It is a NEW thing, which you want to ratify by Republican adoption.

            How in the world did the country get by without it, for 225 years?

            Here’s what you are missing: the primary power of Congress is the power of the purse. I want the real, legislative filibuster to be more costly, so that the filibuster is used only when matters of principle are at stake when developing legislation, making it easier for routine but perhaps contentious legislation to be passed. BUT, rogue executive agencies can go rogue with or without atrocious nominees at their helm — but cutting off their funding will stop ‘em cold regardless. Focus on how we can achieve that.

        • Locke

          is completely bogus.

          One reason for the increase in the number of filibusters may be the increased polarization of the parties: more Reps appreciate individual liberty and the Constitution and the Marxists are out of the closet.

      • lucretius

        and Priscilla Owen, we don’t agree on the term “run-of-the-mill”.

        As many on both sides have pointed out, a major problem with the filibuster in its current form is that it’s become too easy. The burden is on the majority to produce 60 votes for cloture, while the “filibusterers”. The rules could be changed so that the minority would actually have to show up and vote against cloture, or hold the floor reading the phonebook, or something.

        A senate minority blocking a bill or a nomination should be a big political deal, not a routine opposition tactic. It should be done out of firm conviction at personal sacrifice, not used as a bargaining chip.

    • Menlo

      Looking at history, it seems Republicans have never held majorities similar to those Democrats have. More importantly, I don’t think conservatives have ever held a senate majority in recent history. I would not count on Republicans being in the majority in the senate for a very long time.

      However if that were the main purpose of a filibuster, one may as well change it to require a threshold of support from the minority party rather than (or as an alternative to) 60-vote total support.

      I think all the options are lousy with or without the filibuster, and I don’t look for anything to change in any of our lifetimes.

  • tobytucker

    The Founding Fathers were pretty smart for a bunch of old dead guys. It’s just a shame that the 17th Amendment ruined their vision. As far as the filibuster goes, it probably ought to be raised to it’s previous level of 67 votes. Just like the Glass-Steagall Act, it worked well for a long time and it was a mistake to change it.

    • ohiohistorian

      Well said on the 2/3 majority.

      I don’t think you can blame the Glass-Steagall revision (done by Democrats, remember) for the failure. Despite my misgivings about them, I think that the factcheck.org analysis was pretty close on that. http://www.factcheck.org/elections-2008/who_caused_the_economic_crisis.html

      • tobytucker

        I was trying to point out that both the Glass-Steagall Act and the 67 vote requirement were in effect for a long period of time and worked well. And that in both cases when they were changed there were unwelcome consequences. I didn’t mean to imply that there was some sort of cause and effect relationship.

        As to the link you provided, the article isn’t too bad but it completely soft-pedals the effects of the repeal of Glass-Steagall, distorts several key facts, omits many others and doesn’t address Alan Greenspan’s deregulation of derivatives at all. Noting that the repeal was “bipartisan” without mentioning the immense lobbying effort by the banking industry is a criminal omission. The claim that the continued prosperity of the Big Banks was a worthwhile outcome of repealing Glass-Steagall is truly laughable.

    • wonkish1

      About Glass-Steagall, but I on that one I haven’t completely thought out how to for sure win that argument. So, I’ll refrain from doing so.

      Sometimes knowing that a particular argument would end up in a territory that will likely end up in a territory where there will be no resolution, maybe you should refrain from starting it.

      • wonkish1

        The recession. I’m positive that it couldn’t have even been much of a contributor. I’m just not sure I can win the argument that it didn’t make it a little worse. The onus of proof would be on me, and I currently can’t prove that.

        I probably will eventually, but I can’t now.

  • electroncollector

    And replacing them all would be a dream come true. It is just not going to happen. With some hard work and luck we can pick off a few more.

    A secondary goal should be to make the primaries as costly as possible (in both money and time) for the RINOs even if they win. This might keep some of the ones we can’t get the votes to replace from voting as often with the Democrats.

  • briana59

    conceived by the founders to represent the interest of the various STATES. When progressives amended the Constitution and allowed direct election of Senators by the people, the States lost their seat at the table of governance. It is time we gave their seat back to then as intended.

  • mikerazar
    • mikerazar

      This provision, more than any other, explains the right way to interpret the Constitution.

  • manlyman

    The post implies that the House is essentially the Senate with its anti-democratic parts stripped away. At least with regard to proportional representation, this is strictly not true. Because the members of the House of Representative was fixed in 1911 at 435 members, and every state has at least one at-large representative, people in the smaller population states still have disproportional representation in the House as compared to the higher population states. This doesn’t even touch on the sensitive topic of gerrymandering, which I think also warps the representative nature of the House.

    The post also conflates the constitutional aspects of the Senate which make it unique with the extra-constitutional rules created by the Senate itself (not non-constitutional, because obviously the constitution allows the Senate to make its own rules). Regardless of what you think of other aspects of the Senate, the filibuster itself is not in the constitution and in its current form is much changed from the purpose for which it was originally used. I dislike the filibuster as it exists now because it simply makes it too easy for a single Senator to anonymously stop any piece of legislation, which goes I think way beyond even the framers intent for the Senate.

  • caboose

    senators and a number of sell out Republican Senators, voted to destroy the US military by passing the homosexual preferential bill. Many of those voted for this perverted bill because they either had recently been reelected, or is convinced that by the time they will be up for election, this issue will be forgotten and especially their vote. Their assumption has clearly proven to be true, since they are elected for six year terms. It will continue unless we as citizens of the United States of America, demand action to at least reduce their six year term, to a two year term, just like the US house of Representative. There is no reason for the disparity between the terms of Senators and Reps.,other than “Thats the Way It Has Been In The Past.” This needs to be done in time for the 2012 elections, so we can hold all of them accountable for their actions the next two years and thereafter. As for the number of Senators per State and unless we abolish all of them, there is no way the Number of Senators per State can be reduced based on the size or population of a State. To do so would cause the affected States to opt out of the Union, and with good cause. Remember States do not pay income Taxes,53% of United States citizens do and 47 % of the freeloaders in this country do not. so no matter what State the 53 % are in, they are taxed at the same rate and it would not make sense to reduce their representation in small states.

    • gekster

      is that there wouldn’t be such a rollover in the Government
      as to make it inefective.

      After any election, there would allways be some stability and
      a few around who know how run it.
      The four year terms in the house would be able to reflect any changes in thinking in the populace at large, and the six year Senators were originally elected by state assembly, which provides a sense of stability.
      Thats the best guess I can make on that.

  • jeffreywturner

    Cut it in half.

    Every state would have equal representation if they each had a single Senator as well.

    Really, I never understood why the framers thought each state needed two rather than just one. I’m sure they had their reasons, but today it just seems like a waste of money to me.