While all the hoopla over Richard Shelby’s hostage situation is a little overhyped – if not him, some other Republican would have held each and every one of these nominees – it does amount to what you would call a “teachable moment” about the dysfunctional Senate. Anyone who thinks that the fillibuster is merely a protection of minority rights need only look at the Shelby blanket hold. It is the manifestation of a Parliamentary era of ideological rigidity combined with a supermajority process of veto points, along with a political system that rewards the minority for frustrating a majority. It’s a formula for American decline, to put it as simply as possible. We are all Colorado Springs now.
You’re finally starting to see the White House dip their toe in the water on the question of whether to fix the broken Senate. Vice President Biden, himself a creature of the Senate for 36 years, is willing to discuss reform.
Washington (CNN) – Moments after swearing in Sen. Scott Brown, R-Massachusetts, whose presence in the Senate means Democrats no longer have their 60-vote filibuster-proof supermajority, Vice President Joe Biden told reporters he thinks filibusters have been abused in recent years and that the Senate should consider reforms.
“It’s a useful tool, it is legitimate. But from my perspective, having served here, elected to the Senate seven times, I’ve never seen a time when it’s become standard operating procedure,” Biden said. “You want to get anything done, you have to have a supermajority.
Biden noted that filibusters are not called for in the Constitution and the threshold was changed once before – from 67 votes to 60 votes – when it was “recognized as increasingly difficult” to get bills passed [...]
“Any President in the future, having to move through anything he or she wants, requiring a supermajority, it’s not a good way to do business,” he said.
Robert Gibbs yesterday started talking about up or down votes for political appointees. And the White House blog posted a case study of Martha Johnson, the new head of the GSA, who was confirmed by a 96-0 count, nine months after she was nominated for the position.
This isn’t just a problem for nominees; it’s become a problem for legislating, too. Historically, the filibuster has been used as a way to try and reach a bipartisan compromise; now it’s just a tactic used to gum up the works. The Senate has had to cast more votes to break filibusters last year than in the entire 1950s and ’60s combined. This has prevented an honest debate from taking place, which has made it impossible to find agreement on important legislation that would benefit working families in this country.
I understand the desire to cast this as radical and new and different, and to an extent it is. But the supermajority filibuster, in the case of political nominees, serves basically no function. The President is entitled to his own staff, and I think you’d get 90% support for that proposition if posed to the country.
Indeed, the problem is the US Senate itself. Sherrod Brown talks about in the above clip following Tom Udall’s lead on changing the Senate rules at the beginning of the next Congress, and taking a year-long effort to educate members and the public about the dysfunctional rules. For some that’s too long to wait. Rep. Jerrold Nadler (D-NY) told me on Monday that the Senate should simply enact what was called “the nuclear option” to set a precedent for majority-rule votes (explanation here). “The Senate is paralyzed, it can’t do anything, and that helps conservatives, who by and large don’t want to do anything, more than liberals,” Nadler said. “We could change it if we use the nuclear option, but Democrats won’t because they’re unwilling to use such drastic measures.”
Nadler is not the only member of the House frustrated with the pace of the US Senate.
Politicking in the upper chamber is squarely to blame, as it has obstructed the chamber from progressing on the healthcare front, adopting a green energy bill, passing a jobs bill, introducing a financial regulatory reform package or finishing a student loan bill, Rep. John Larson (D-Conn.), told MSNBC’s Dylan Ratigan.
Ultimately, the Senate’s legislative pace has not only frustrated Democrats in the House, who have passed all of those bills, but the American voters who sent them there to finish the job, Larson added.
“Theres a host of things that we’ve passed already, and there needs to be action in the Senate, and people are tired of it,” Larson said, noting he was “glad the president cited the House” for making more progress than the Senate in last week’s State of the Union address.
“The issue here is, whether it’s Democrat or whether it’s Republican, is [voters] want to see action,” the chairman added.
Americans have a hazy understanding of Senate procedure, which means a) they aren’t blaming Republicans for obstruction right now, and b) they wouldn’t blame Democrats in the future if they made it easier to govern.
So what is there to do while we wait for Sen. Udall to make his point of order next January? Democrats could “make them filibuster,” but that’s OK in theory and terrible in practice. Also this will apparently happen should we go to reconciliation, with a vote-o-rama of endless amendments (at least for a time), so there will be a case study. There’s the idea that the filibuster can force bipartisan cooperation, and Obama just needs to try harder. He’s bent over backwards so far, I don’t know what more he could do. And if anyone’s come up with a worse way to counteract this than Walter Mondale, I’d like to see it:
So here’s what Mondale thinks should happen. Democrats assert the constitutional principle that the Senate, by majority vote, has the power to make its own rules, at least at the beginning of a new session. A friendly presiding officer (in the current situation, presumably Joe Biden) rules in favor, based on the argument that the U.S. Constitution outranks the Senate rulebook. The chair’s ruling can be appealed, but a vote on a motion to table that objection cannot be filibustered and the chair’s ruling can be upheld by a simple majority vote. This would push put the same majority in a position, at the beginning of the next session, to push through a new filibuster rule, or to ban filibusters entirely. (Mondale does not favor the latter, by the way).
Faced with that clear threat, Mondale believes, relative moderates from both parties would quickly work out a backroom compromise that would change, but not abolish, the filibuster rule.
But that’s simply an unrealistic reading of the relative dynamic among the political parties. If individual Republicans succeed through obstruction, if the party as a whole succeeds through obstruction, what possible reason is there for them not to do so?
“In our system, if the minority party can create and enforce party discipline (which has never really been done before, but which the GOP has now accomplished), then OF COURSE there can be no ‘bipartisanship’ on major legislative matters, in the sense of (1) the minority adding provisions to legislation as the majority compromises with them, and (2) at least some minority party members then voting with the majority.
“In a parliamentary system, the minority party is not involved in helping write or voting for major legislation either. If you think about it, and as that exchange I quoted shows, that sort of ‘bipartisanship’ really can’t happen in a parliamentary system on issues where the minority party has the power to tell its members to boycott the majority’s major bills on final passage.
Party discipline has trumped bipartisanship. Sure, people still talk about working together, but they are constrained by the Iron Law of Institutions, which we’ve seen here in 2/3 rule California – it’s more important for members of an institution to grow their own power within their institution than to grow the institution itself.
We’re slowly working to an important moment on this. The Craig Becker nomination will provide an early test next week. If Scott Brown doesn’t throw a curveball and joins a filibuster to block Becker entirely, it will simply be time for a change. In the short term that could mean a raft of recess appointments (George W. Bush made 171, as a pre-buttal to the outrage). In the longer term, it’s time to end minority vetoes and return democracy to Washington.




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Why change the rules when we look like we are heading into a meat grinder election come November? This Crisis with Shelby smells of an excuse to make us get rid of the filibuster just in time for a GOP takeover.
Tell Shelby he starts voting our way or we cut off all his pork.
Tell Shelby to pay for the war we are moving all the army bases out of his state. Tell Shelby his top 5 biggest campaign contributors are having OSHA, the FDA, and INS look at their buildings, products, and workers.
Then tell Shelby the SEC and IRS are next.
The Senate has been around over 200 years but Shelby is the first unreasonable Senator they ever had? We must change Senate rules because of him?
“It is the manifestation of a Parliamentary era of ideological rigidity combined with a supermajority process of veto points, along with a political system that rewards the minority for frustrating a majority. It’s a formula for American decline, to put it as simply as possible. We are all Colorado Springs now.”
I am an admirer of your work generally, but this may be the best thing you have written to date. The above is, indeed, the American crisis in a nutshell.
Notice nobody but us is suggesting the obvious get a new Senate Leader. Harry Reid just does not have the Spine needed to do the job.
We need a Senate Leader with the Stones to take away all of spoiled Senator Shelby’s toys.
No, but at one time they were allowed to shoot at each other (http://en.wikipedia.org/wiki/Henry_S._Foote) and beat each other with sticks (http://en.wikipedia.org/wiki/Sumner-Brooks_affair). This served to speed along debate, increased interest in the proceedings, and cultivated the famous “comity of the Senate” that always seems to get invoked when holds and filibusters come up. How great would this be in the age of CSPAN?
What is happening in Colorado Springs is an optimistic scenario for as conservative ideology and policy that has dominated since Reagan plays out the outcome will likely look more like “Escape from New York.” The U.S. will be a brutish, survival of the fittest jungle. The rich will be well isolated and protected in their enclaves by private paramilitary mercenaries.
The Red States get more cash from the Federal Government than they pay in taxes so just start cutting off the cash. Why end the Filibuster when we have power already but won’t use it?
What makes anyone think that Harry would know how to get a bill passed without a filibuster?
In the short term that could mean a raft of recess appointments….
How long is a recess appointment good for?
(I saw that Harry Reid suggested this tactic)(so I naturally and immediately hated it as weak)
two years (end of 2011, basically)
Would getting rid of the filibuster change the hearts and minds of the corrupt Senate? Harry and his crew could have filibustered to end the war, stop torture, stop the Bush tax cuts passed during war time which really drove up the National Debt but they didn’t.
Still we gave Harry a Majority but he could not do a thing with it. Yet the GOP you notice in the minority have stopped Obama quite well.
I’m saying Harry is being paid to lie down. The Filibuster is not the problem Harry is.
The three components of Southern control of our politics were the 3/5
clause, the electoral college, and the Senate Rule 22. We will be
stuck in this political cold war until these remaining components of
control are eleminated.
If you look at the last 3 posts at firedoglake, Jamie Gorelick (greed), Susan Collins (stupidity), and Richard Shelby (megalomania), you have an encapsulated version of everything that is wrong with our political system.
found my own answer:
Article II, Section 2 of the U.S. Constitution: “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”
a chewing gum fix….
Strom Thurmond filibuster champion
Despite the role of civil rights in his political evolution and his record-breaking filibuster of 24 hours and 18 minutes against the civil rights bill of 1957, Mr. Thurmond always insisted he had never been a racist, but was merely opposed to excessive federal authority
Sounds good Obama gave it a shot tried to play nice but all his people are getting held up so its time to stop being nice.
from your link:
powwow has provided excellent evidence that this is wrong. including on your own previous thread and more recently, here. can you show that powwow is in error? and if not, could you at least acknowledge that this is not a settled issue?
here is a recent bit from powwow (links and emphasis in the original – link above):
Just last week we saw bi-partisanship all over the place with the reconfirmation of Ben Bernanke. If the well being of selected cronies on Wall Street, Big Business, and defense contractors (huge-ass campaign contributors) hangs in the balance, both parties can reach agreement over night.
Hugh @13 took the words right out of my mouth. This shit doesn’t work anymore. We need to start over and try something different.
No doubt. But depending on mercenaries is always tricky. Once the need for guns becomes apparent, they are likely to ask themselves why they are working for you and not vice versa.
The rich will be lucky if they can do that, since the supermarkets and gas stations (those that are left) won’t be inside their enclaves, having never been built there in the first place. (So tacky to have commerce next to your home /s). I’d be surprised if any of them can even deal with a garden.
Thank you selise,
…ruthless party control of the chamber and its members, and a complete disregard for the opinions or rights of the present Senate minority…”
I have been wondering what it would take to accomplish this act. Even with the Supermajority, when the D’s could have accomplished much, time was wasted on trying to be “bipartisan” and we found out early where that got us and still they kept it up until the Kennedy seat was lost.
Sorry for the rant.
Obama’s naive bipartisanship fetish is his Achilles Heel and has the potential of not only destroying his administration but the nation as a whole. Glad to hear that Franken let Axelhole know that people are pissed at the half-@ssed leadership of the Obama administration. Hopefully Obama stands for something beside a desire for everyone to “just get along.”
And when they stick their heads out of their gilded cages they’ll be fair game.
i think what we’re seeing IS ruthless party control by the dems. but not to further the people’s business — that’s why they lie to us and pretend they need 60 votes and that “bipartisanship” is a good and necessary thing.
Exactly!!!
Or almost exactly, the Republicans may be just as happy to avoid real debate as democrats.
How could we ever tell?
And come November they can go back to being the minority party forever and ever. And I can go back to being pissed for the next 12 plus years because of the incompetence. If they would only listen to us :(
Jeez, the stupidity that reigns in Washington.
“The Filibuster is not the problem Harry is.”
I disagree. Personalities aren’t the problem–they are reliably weak and venal in all eras. The problem is the lack of consequences.
I was only half tongue in cheak in referring to the famous beatings and shooting attempts in the Senate. The issues at hand in the 1850s were serious and politics was serious. You could literally get beaten to death during debate. The debate itself touched on bondage or freedom for 4,000,000 Americans and the eventual deaths in battle of 700,000 more, including Senators.
Today, people like Reid, Shelby, and the rest touch on issues as humanly momentous as slavery and war with no real stake in the outcome. At most they risk trading personal wealth for greater personal wealth. The fetish for comity and deference to one another makes even political repercussions unlikely. All kinds of skullduggery is thus hidden behind the featureless wall that is Senate custom.
So, while I doubt that ending the filibuster will solve the nation’s problems, I think it can’t hurt and might help. The Senate is a bastion against populist outrage. We are going to need that outrage soon. So it is time to break down the Senate’s defensive walls.
The Dems should ignore the senate rules and get rid of the filibuster now by a simple majority vote. In the future the only rule that would mean anything is that the majority rules.
The Republicans and the Villagers would scream and stamp their feet but as long as the Dems got things done most people wouldn’t care.
Blue Texan’s regularly scheduled post is up for our perusal: Will Republicans Denounce Richard Shelby’s Pork Putsch
A different kind of “guns and butter” issue.
It takes 67 votes to change Senate rules. Dems can’t even get 51 for a health care reconciliation bill.
Would this be part of the “kabuki” you are always on about?
Is this part of the script?
Is hornswoggling the main function of the Political Cla$$?
Why, selise, you shore have become disenchanted with the dems.
I disremember when you seemed of the opinion that the dems were just in need of a little heart-to-heart with the peeps.
Sail on, selise, you’ve the wind at yer back, the sails are filled, and you’ve clear prospects ahead on the open See …
;~DW
Kabuki is indeed the correct word for it, based on what I’ve seen from the Democratic party after three years of Congress and a year of the white House.
how is getting rid of something that hasn’t been used in years going to help?
yes, yes and yes.
i liked the dems a lot more when i wasn’t paying so much attention to what they were doing and how they were doing it.
ignorance was bliss.
i’m just guessing, but i think if the dems called the republican’s bluff on something good, the republicans would very likely fold. call. their. bluff.
I don’t think the problem is the Senate half as much as it is the fact that there’s just no political will to get anything done with our current Senate. And that goes back to all the money that’s being funneled into it. All but a handful of Senators, and I’m willing to bet Representatives as well, just will look for any way out of voting for something which might threaten their campaign coffers. If the filibuster was done away with, they’d just find some other excuse not to get anything done.
You’re assuming the Democrats are interested in accomplishing the things the Republicans are allegedly preventing them from doing.
i wouldn’t go that far :)
more like i want to test that hypothesis.
Let’s see if the Democrats do.
The question is not whether one party needs the filibuster rule in order to properly stop bad legislation even if the other party abuses it to stop good legislation. The question is whether it should exist at all. And the answer is no it should not.
The purpose of the Congress is to pass legislation by the elected majority of its members, and that is the priviledge given to them by the voters. Only then will Congress people be directly accountable for their votes.
Now without being naive we certainly can have a repeat of the recent disaster wrought by the Republicans when they held the 3 branches of government, but to place our fate on the filibuster rule to stem this threat is to put a reed to stop a raging bull.
We have seen just now that the filibuster pretext was just a ruse by the Democrats who never intended to vote against the interests of the health lobbies at all. The filibuster rule is there for the Democrats to hide behind while for the Republicans to ignore.
I agree totally.
What is this fixation in believing that Democrats are devoted to acting on behalf of the generality of the public? What is the basis for this otherwise delusion.
Maybe someone can list the last time that an unambiguous piece of legislation devoted to the public good was enacted by this Democratic controlled Congress.
The truth is that to lay our hopes on the Democrats is sheer wishful thinking. Any initiative to retrieve the public’s welfare has to begin at the local level. The Congress as now configured is an impediment and serves mainly to distract.
In 1994 after the GOP and health insurance barrons killed Hillary’s reform,
Progressives stayed home and Gingrich took over the House on a 38%
national turnout.
That is why Dems will pass this bill through reconcillation. Their base will
stay home if they do not, which they are well aware of — saw a cool site;
Balkingpoints ; incredible satellite view of earth
Dems need to make this a National Security issue and drive it home!
From the link provided to a post by Jonathan Bernstein to back up dday’s claim that real filibusters would be “terrible in practice”:
Real filibusters only begin (and usually end) in the absence of Rule 22′s cloture process, so of course Thurmond’s real filibuster “was not a cloture-proof filibuster.”
The phrase “cloture-proof” as Bernstein’s using it, meaning, I’m assuming, that the final simple majority that passed the 1957 Civil Rights Act conference report immediately after Thurmond yielded the floor, was not the 67-vote supermajority on a cloture motion that would have been required if the Senate majority had invoked the cloture process in Rule 22 instead of forcing Thurmond to actually physically filibuster. [The final simple-majority vote was 60-15; more on that filibuster in the most-recent thread selise linked in comment 17.]
With regard to the middle paragraph of my comment that selise excerpted @ 17, here is an explicit example, quoting the Bernstein post’s closing paragraph, of the – in this case, I think, just misinformed, not intentional – obfuscation, or ‘wishing away’, of the fact that there are two processes (aside from “unanimous consent”) available for getting to a final vote on a measure in the Senate:
Here’s what Bernstein is either overlooking or ignoring, when in that paragraph he addresses only one of the available processes [Rule 22's cloture process, which never existed as an option in the Senate before 1917, and has only become an increasingly-regular feature of Senate procedure since about 1990]:
1. The Senate can move to a final vote when floor debate is exhausted, unless a Senator, alone, or in sequence with others, refuses to stop speaking and yield the floor, in an effort to prevent that simple-majority vote (and to publicize his or her concerns). That is a “filibuster” that can be waited out by a simple majority in favor of the proposition being filibustered (by maintaining a live Senate quorum each time a roll call is requested).
2. Alternatively, either immediately, before floor debate is exhausted or even begun, or in the midst of a real filibuster, the Senate majority may deploy Rule 22′s cloture process by filing a cloture motion signed by 16 Senators, thus invoking Rule 22′s painless (debate-optional, other Senate business possible) delays of up to two weeks, and the 60-vote supermajority (67 to end debate on changing the rules) it requires before the Senate can hold a simple-majority vote on final passage.
A cloture motion can be used to stop a real filibuster after it has started, but a real filibuster cannot be forced if the cloture process has been initiated (a cloture motion filed) before a real filibuster has begun. [The former process is what I'm advocating be reimplemented, with a cloture motion only being filed after a significant delay from a real filibuster starts to seriously impede other Senate business. The latter process is today's de facto practice in the Senate under Harry Reid.]
Walter Mondale’s suggestion mirrors decades of a fight waged in the Senate by the majority during the Civil Rights era (a fight in which he himself participated). He seems to be basically suggesting using the majority’s threat to violate the Senate’s rules (in lieu of simply using those rules to force a filibuster, as need be, to maintain simple-majority rule) to achieve some unspecified “compromise” that seems unlikely to change today’s Party dynamics. As I noted in the other recent thread, a similar argument to Mondale’s (though by some who wanted no ability for a Senator to filibuster at all) likely helped ‘gift us’ with today’s abused 60-vote cloture threshold, so, for reasons somewhat different than dday’s, I don’t endorse Mondale’s approach either. [As for Jerry Nadler's argument: For shame, Rep. Nadler - you ought to be able to do better than to advocate that the Senate Presiding Officer violate a clear, Constitutional rule, in lieu of his majority using the existing rules to achieve what they already allow - a return to simple-majority rule, with occasional delays to give voice to the minority, in the Senate.]
But three cheers for Time’s Karen Tumulty, who obviously (mostly) gets it. I hadn’t been aware of her posts (apparently since July, 2007, even) advocating that Senate majorities force the filibuster. Good for her. Though I think she too needs to understand a little more about the difference between Rule 22 and non-Rule 22 process, based on her comments in that thread, this comment of hers really gets to the heart of the matter, and exposes what is sorely lacking today in so many reporters covering Congress, or Washington, and in so many Members of Congress themselves (who serve as obedient Party members, rather than as self-governing legislators):