Almost a year ago I wrote about how the filibuster was already tying the Senate (and the nascent Obama administration) in knots. I urged getting rid of it ASAP. My post garnered a few comments, but, at BMG, just as with progressives nationally, no big deal.
Ezra Klein has a good piece in the Wash Post about the recent history of the filibuster and how it has become much easier to use. (He helpfully includes a reader comment that is very important.) Klein sums up the situation as follows:
The story of the filibuster is a story of small changes that everybody got used to, which allowed for more small changes that everybody got used to, and so on, until the Senate had undergone a large change indeed.
So here we are with once-a-generation policy choices before us and the operative maneuver in the Senate is the filibuster. Everything revolves around it. A conservative (Democrat) senator like Blanche Lincoln of Arkansas, a state with less than two-thirds of the population of the Boston Metro area, can hold up any bill, no matter how important, just by threatening to filibuster.
My BMG-relevant question is: have I missed something? Have the four candidates for the Mass. Senate seat been asked about the filibuster? Do they have clear positions on it? Ted Kennedy, in part by virtue of his long tenure, was one of those who, as Klein suggests, came to an accommodation with the filibuster. By small increments, he learned how to live with it. But it’s like learning to live with an alcoholic spouse. If the problem isn’t addressed, sooner or later, it creates a crisis. That’s where we are now. What say you Democratic Senate candidates?
Legislation and nominations deserve to have an up or down vote, and yes, I believed this when the GOP had the majority too. If there are certain questions, say confirmation of SCOTUS justices, that should have supermajorities then amend the Constitution to specifically require such. Debate and amendments should be germane to the question and limits should be imposed. Requiring a supermajority to cut off debate is not by itself horrible; Robert’s Rules requires a 2/3 vote to call the previous question. However, Robert’s also assumes that a motion setting a limit on debate has already been adopted and when the time limit is hit the question is automatically called, unless a motion to extend debate which also requires 2/3 is adopted. Until the rules can be changed at very least force a filibuster and make sure pro-reform Senators are on the TV everynight reminding people how many days progress is being stalled.
It is my conclusion that a health care bill without the public option and a public option without nationwide risk pool enrolled, amounts to nothing more than an insurance industry bail-out where the insurance companies receive 35 million new customers, many of whom are enrolled at taxpayers expense, while insurance companies continue to raise rates with impunity and without a market mechanism to provide downward pressure on cost.
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p>What is at the heart of the problem is the influence of industry-financed lobbyists on our policy making. Fixing that issue is not in the scope of the Democratic agenda. To the contrary, under Rahm’s influence and Bill Clinton before him, Democrats have engaged in the battle to co-opt that money for campaigns at the expense of policy they produce. You have to look no farther than the Obama White House Phrma deal to see that strategy in action.
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p>Over 100 bills passed by the House are waiting to be acted upon by the Senate. Republicans and now Democrats are using or threatening to use parliamentary procedure to stall or block the health care legislation.
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p>The rules of the Senate allow a minority of 41 to block a bill from getting to the floor for debate, and also to block a bill from getting a final vote on passage, by voting to continue debate.
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p>Last year, Republicans set an all-time record for obstructing legislation in the Senate by using procedural votes this way. This year they will obliterate that record. That’s why the 60 member Democrat caucus was so important to Senate Democrats, to end Republican obstructionism in the Senate.
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p>Years ago, the rule was changed in the Senate from 66 votes to advance the legislative process to 60 votes. One idea to solve the problem is to change the rule again and require 55 instead of 60.
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p>Another alternative is to pass legislation using the budget reconciliation process which requires a simple majority, 51 votes. That is what the Bush Adminisration used to bypass parliamentary roadblocks available to those who opposed the Bush tax cuts and some other Bush administration initiatives. Howard Dean advocated this approach last Tuesday as the best path to passage on health care reform.
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p>Traditionally, party members gave their leader their vote on procedural votes, thus allowing the leader to run the body as they see fit, and then they were allowed to vote their conscience on the bill. If all members of the Democratic caucus in the Senate voted this way, health care reform could not be obstructed by procedural votes.
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p>But now Democrats that oppose aspects of the health care bill or who want to kill it altogether are threatening to use the procedural vote as a weapon against the bill, against their own leader Reid, and the their own party. It’s the leaders job to keep his caucus in line.
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p>A third alternative is for the Senate majority leader to demand caucus members remain loyal to the party agenda by voting their procedural votes on the party line and voting their conscience on passage. Reid has been willing to sweeten the pot to buy their procedural votes – Lincoln, Landrieu, – he should threaten harsh penalties if their refuse to give it on procedural votes. For example, Lieberman values his submarine base but theirs no reason it can’t be relocated to Virgina beach. It’s been discussed before. Reid should play Hardball with Democrats who act like Republicans to obstruct rather than allow a simple majority to rule. What is at the bottom of these obstructions is the profitability of the health insurance industry and that influence over these Senators who owe their campaign funds to the industry.
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p>Lieberman (I-Atena) has repeatedly threatened to vote against cloture, to end debate and allow a vote on passage, on the health care bill if it includes the pubic option. Blanche Lincoln (D-Aetna), Landreau (D-Aetna) and Ben Nelson (D-Aetna) have also made noise about voting against cloture.
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p>Harry found carrots for Lincoln and Landreau to get the bill to the floor for debate but they both say they may still filibuster on cloture. Harry needs to finds a few more small carrots and a bunch of big sticks to get these four members in line.
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p>He must also leave the door open for budget reconciliation if the current path doesn’t get the job done.
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by the founding fathers, there’s no official law declaring that it should exist (it’s just operating procedure that the senate decides) and it’s never been used the way it is now (not only have the Republicans and conservadems been using it in record fashion, but today’s version doesn’t even require these asshats stand up and actually filibuster for days straight).
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p>Things we should do:
1. Make them stand up. If they’re going to filibuster this bill, or any, make them stand up and tell the country why. Film it. Make them stand up for days and days on end, reading books verbatim, etc. Make them show their real goals: making sure the business of this government does not get done and that the people’s vote from last year is subverted through nondemocratic processes. That should get rid of 90% of the problem.
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p>2. Threaten to get rid of the filibuster. Harry Reid coming out swinging and speaking about how he may just get rid of the filibuster if Republicans keep being obstructionists (like they did to us), may just keep people our entire caucus in line. If procedures are taken to initiate the process, maybe even some Republicans will be kept in line.
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p>3. If that doesn’t work, actually get rid of the filibuster.
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p>Some Democrats will say, if we get rid of the filibuster, they’d be worried about when the Republicans are back in power. Here’s what I have to say to them: First, we never used the filibuster when we were in power anyway, so what’s the difference? We always backed down, so we may as well get rid of it and pass some stuff while we can.
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p>Second, if we can’t pass our shit now, they WILL be back in power, so this is a necessary means to keep them out of power. Nothing will keep us in the majority longer than passing a sweeping, broad and strong health care bill that delivers universal insurance and saves most families money. The current health care bill isn’t quite that good, but we could make it that good done the road — if we pass this bill now, public option intact.
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p>Third, we live in a supposed democracy, getting rid of the filibuster is necessary if this is really to be a democracy — even if the republicans will one day gain power again. If we pass stuff now though and get them through the system long enough for them to become popular, like Medicare and Social Security, the Republicans will not be able to get rid of them, even when they’re in power. Those programs would be too popular with their constituents.
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p>Finally, even if the Republicans will one day be in power and in that scenario be able to pass bills with simple majorities, it’ll make the process much easier to understand for the American people. Right now, things can be killed by the process of how bills go forward. Most Americans don’t understand that nuance — the Senate appears archaic for a reason, because it is! If the Republicans started passing hugely unpopular bills with their own majorities in the future, they’d be held accountable for it, which means they’d be voted out of office. This is how the parliamentary system works, a better system, and it allows for both electoral accountability and the ability to get shit done at a reasonable clip. Let the Senate do its business; if the party in power goes overboard in that chamber, there’s still the House, the President and the courts to keep them in check. This is why the founding fathers never saw it necessary to have something like the filibuster; they already accounted for necessary checks and balances – and them some. Our government is already stodgy and slow enough; getting rid of the filibuster will at least allow business to move forward and the American people to have something close to real representative democracy at the federal level (though not truly representative or democratic, because of the absurd make-up in the Senate where 500,000 people from Wyoming have exactly the same power as 30,000,000 people from California).
Story by: David Dayen
I think if the Dems wanted to get rid of the filibuster, they should have made a public declaration — when they were still the minority — that they would get rid of the filibuster as soon as they were in the majority (and thus could write the rules).
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p>The GOP would have either said “ja right!” or called them on it and eliminated it immediately (since, being the majority, they had less to gain from the filibuster in the near term).
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p>I think that if the Dems eliminated the filibuster now, they’d really look like they couldn’t get their own house in order.
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p>At the very least, do it at the beginning of a 2 year cycle; changing the rules mid-game seems decidedly un-American.
I think people have several misconceptions about the filibuster’s role in our government and what it actually does. I will outline what I see as the six misconceptions people have made on this post and propose instead a reform of the filibuster that returns it to its rightful principles and a call for better Democratic leadership.
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p>1) The Filibuster is Not Democratic
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p>This is true. Neither is the Senate. Read the Federalist Papers, read the writings of James Madison, and read the Constitution when you get a chance. The Senate is a deliberative body that is meant to be a roadblock-that is meant to discourage change. It is an intrinsically conservative institution in a small c sense. It empowers minorities and even individual members to make a great impact on the legislative process which is quite productive. Democrats used the filibuster to keep most of Dubya’s odious appellate court nominee’s off the benches-judges that today would otherwise by infringing upon a host of civil rights are not on the bench. It forces bi-partisanship, it forces consensus, and it ensures that we are not governed by a dictatorship of the majority. It ensures in short, that only the best bills get to the President’s desk after undergoing intense scrutiny, it ensures that the states are represented.
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p>2) State interests are trumping national one’s
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p>Someone decried Lincoln’s state as being smaller than the Boston Metro area-I would reply that this is the whole point. Each state has equal membership and it is essential that the voice of an Arkansan matters as much as the voice of a Bay Stater even if we disagree with them on health care. Her first responsibility is to her constituents, and there is a good argument she is abandoning it, but to argue that she ought to consider the interests of the nation over her state is not only to display ignorance of the point of the Senate but also hyopcritical considering how often Senator Kennedy rightly put the concerns of MA over the concerns of the country on a host of defense related earmarks, defending gay marriage, defending MA unique laws regarding choice and gay rights, and defending our health care legislation.
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p>3) Filibuster not in writing-just a tradition
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p>Sure. Neither is the Senate Majority and Minority Leadership, or the Chairmanships, or Committees in general, or the use of Roberts Rules, or a host of things the Senate has adopted. I would argue they are Constitutional since Article II gives broad powers to both Houses to set their own rules-and thus getting rid of the filibuster is permissible-but I would argue it is inadvisable for several reasons. Yet to say the filibuster is not enshrined constitutionally and ergo this makes it a bad idea is not a reason in of itself, and is hypocritical seeing as getting rid of the filibuster would require the same constitutional procedures its opponents are decrying to maintain it.
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p>4) Filibuster delaying good legislation
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p>Why is there a rush to pass all this legislation? To me it is a good sign that 100 bills are being stalled, as is the fact that the majority of the bills that are proposed never pass, this is because most of them are not the most thought out and well developed. If we believe that the Senate, like any other institution within a liberal democracy resembles a market place of ideas as JS Mill argues, than we can easily see how only the best bills with the broadest support of the states, and thus the country, can pass muster and get signed into law. The Senate at its best, and thanks to its quirky rules regarding the filibuster and other unique institutional innovations, acts in a bubble explicitly where popular sentiment cannot influence it.
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p>In many ways the Senate was intentionally designed to be above the whims of the people, hence that it was not an elected body until much later in our history, and in this way it acts as an elite body, one paradoxically focused on state interests and since Senators are considered national leaders as well, and future Presidents, national ones and international ones as well. Thus by ensuring the popular sentiments of the people which are so often swayed by mob mentality, passions, and rarely swayed by facts and reality, will not affect the laws of the United States. This is not only a safeguard against direct democracy, such as the kind crippling California, but also against the anarchic tendencies of mob rule.
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p>5) The filibuster in its current form is abused and miused
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p>Here is one objection I actually agree with. Currently the filibuster is simply use by minorities to ensure that an up or down vote and a simple majority cannot occur. It was never intended to be used for procedural votes, never intended to be used for every piece of legislation, and never intended to be used as a political tactic. Furthermore, traditionally a filibuster had to be accompanied by a long speech where the individual Senator justified his/her delaying of this legislation. I think returning to the model of the Filibuster as it was understood from its early 19th century installation to the mid 20th century would be a useful reform and would argue that Harry Reid and the Majority should force these reforms upon the Republican minority. Also understand that this will reap consequences as our current majority is not permanent and someday we will be on the other side and needing a filibuster to ensure that objections are met.
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p>6) Removing the filibuster is the Solution
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p>This talking point misses the broader problem in the Senate-which I hope to outline in a later post-mainly that the Democrats are addicted to bipartisanship and creating consensus, goals that are admirable, but goals that are hindering progress when the opposition is reduced to a small minority that votes in lockstep as hard conservatives. As Joe Biden pointed out on the Daily Show, the lack of similar ideological discipline within the Democratic caucus is the price we pay for a bigger tent-but I would also argue that stronger leadership more concerned with playing offense rather than defense, and possibly lead by a Senator who was not from a swing state, would ensure that the Senate was more affective.
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p>Believe me when the people of Nevada rid us of Harry Reid, and we lose about 3-5 more Senate seats as I predict we will, the new Democratic caucus led by Durbin or Schumer will be leaner but it will be also be lot more meaner as well and actually help the President.
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p>Also the president ought to pull a Harry Truman and denounce the Republicans as the obstructionists they are, but unfortunately their challenges to health care reform are going largely unanswered as this White House has been playing defense from day one. Deference to bi partisanship, consensus, and low key tactics are crippling this President and his lack of passion, on his presidency’s most important initiative, is a little disconcerting.
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p>Hopefully Reid can find a way to pass health care, and even if he survives his electoral challenge, hopefully we can finally learn the lesson of Daschle and elect a leader that will actuall you know LEAD on our issues and is more worried about winning victories for Democratic principles than about winning over conservative voters in his swing state. Electing a safe Democrat like Durbin or Schumer, and ones with a better reputation for being progressive and for playing hardball, would be a great change. Hopefully Reid can be voted out even if he wins re-election as punishment for losing seats. I would prefer Schumer, who while I think he is an a–hole, is the kind of guy you want as your lawyer, arrogant and unlikable, but boy will he deliver when he is on your side. Durbin is the better progressive, but he also is a relatively nice guy and is also too close to the President, we want the next Majority Leader to be squeezing Obama from the left. Schumer again seems to fit the LBJ mode.
My strategy would be to hold everyone’s caucus-based perks (chairmanships, etc.) over their heads when it comes to cloture votes, but cut lose a handful of Senators to vote as they will on final passage.
See my post on Dumping Reid. Keeping party discipline is not something the procedures of the Senate can do, they are in fact designed to prevent party discipline and give Senators broad power to vote as they will. But it is a major component of being a majority leader, and Harry Reid with his aversion to conflict is really squandering our Senate majority. It will lead to disappointed Dems staying home in 2010 and more Republican seats making it even harder for him to govern next time around. It is really a disgusting and self fulfilling prophecy when Democrats play defense the second they actually have power.
See my post on Dumping Reid. Keeping party discipline is not something the procedures of the Senate can do, they are in fact designed to prevent party discipline and give Senators broad power to vote as they will. But it is a major component of being a majority leader, and Harry Reid with his aversion to conflict is really squandering our Senate majority. It will lead to disappointed Dems staying home in 2010 and more Republican seats making it even harder for him to govern next time around. It is really a disgusting and self fulfilling prophecy when Democrats play defense the second they actually have power.
See my post on Dumping Reid. Keeping party discipline is not something the procedures of the Senate can do, they are in fact designed to prevent party discipline and give Senators broad power to vote as they will. But it is a major component of being a majority leader, and Harry Reid with his aversion to conflict is really squandering our Senate majority. It will lead to disappointed Dems staying home in 2010 and more Republican seats making it even harder for him to govern next time around. It is really a disgusting and self fulfilling prophecy when Democrats play defense the second they actually have power.
I have no idea why that posted three times. feel free to delete the redundant posts.