# Four Members of Congress Sue To Declare Filibuster Unconstitutional **URL:** \ **Category:** Great Debates\ **Created:** [May 16, 2012, 5:39pm UTC](https://boards.straightdope.com/t/four-members-of-congress-sue-to-declare-filibuster-unconstitutional/622116 "2012-05-16T17:39:21Z")\ **Posts on this page:** 20\ **Page:** 6
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [May 17, 2012, 9:59pm UTC](https://boards.straightdope.com/t/four-members-of-congress-sue-to-declare-filibuster-unconstitutional/622116/101 "2012-05-17T21:59:25Z")
> [@John\_Mace](#): > > Which of the three bars on that chart are you referring to in your original analysis? The senate does not keep track of the number of times the filibuster is invoked. ([CITE](http://blogs.ajc.com/jay-bookman-blog/2012/05/15/senate-filibuster-makes-washington-unaccountable/)) All we have is the indirect method in the chart. From the article the chart came from: > [@](#): > > These are the numbers on cloture over the last several decades. Often, but not always, cloture is employed by senate majority leaders in response to filibuster threats from the minority. Cloture isn’t always necessarily correlated with filibusters, but broadly speaking, the two often go hand in hand. > > What’s particularly striking here is the GOP’s use of filibuster threats, and the correlated increase in Democratic cloture motions. Take, for instance, the huge spike in cloture motions filed from the Republican-led 109th Congress in 2005-2006 to the Democratic-majority 110th in 2007-2008. > > “It is the most striking in history,” American Enterprise Institute resident scholar Norm Ornstein told TPM. > > \ > > Of course, not all cloture motions are direct responses to explicit filibuster threats. Sometimes majority leaders use cloture filings to do preliminary headcounts and try to avoid wasted time on legislation that can’t muster enough votes. > > Still, Ornstein largely attributes the stark rise in cloture motions in the 110th Congress to Republican delay and obstruction tactics. > > “You’re not gonna see that sharp jump up just because you’re tracking heads,” he said. > > SOURCE: [http://tpmdc.talkingpointsmemo.com/2010/01/the-rise-of-cloture-how-gop-filibuster-threats-have-changed-the-senate.php](http://tpmdc.talkingpointsmemo.com/2010/01/the-rise-of-cloture-how-gop-filibuster-threats-have-changed-the-senate.php) ---
**Author:** ![Age\_Quod\_Agis](https://avatars.discourse-cdn.com/v4/letter/a/d07c76/32.png) [@Age\_Quod\_Agis](https://boards.straightdope.com/u/Age_Quod_Agis)\ **Post date:** [May 17, 2012, 9:59pm UTC](https://boards.straightdope.com/t/four-members-of-congress-sue-to-declare-filibuster-unconstitutional/622116/102 "2012-05-17T21:59:55Z")
> [@Whack-a-Mole](#): > > Where is it wrong? > > I am not saying it is an exact thing but you can see the trend pretty clearly (_especially_ in the latest switch to a republican minority). It’s wrong because the trend is up across the board, and not just when Democrats are in the majority. You might argue that the rate of change is greater when Democrats are in power, but it’s wrong to suggest that Democrats maintain the same level as the Republicans did before them. If anyone has the actual numbers, it might be easier to just do averages than to eyeball the chart. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [May 17, 2012, 10:14pm UTC](https://boards.straightdope.com/t/four-members-of-congress-sue-to-declare-filibuster-unconstitutional/622116/103 "2012-05-17T22:14:31Z")
> [@Whack-a-Mole](#): > > The senate does not keep track of the number of times the filibuster is invoked. ([CITE](http://blogs.ajc.com/jay-bookman-blog/2012/05/15/senate-filibuster-makes-washington-unaccountable/)) > > All we have is the indirect method in the chart. > > From the article the chart came from: I want to know which bars he’s using because, depending on what he’s looking at, I can tell him where his analysis is wrong even if the data isn’t what he thinks it is. ---
**Author:** ![Zeriel](https://avatars.discourse-cdn.com/v4/letter/z/58956e/32.png) [@Zeriel](https://boards.straightdope.com/u/Zeriel)\ **Post date:** [May 17, 2012, 10:23pm UTC](https://boards.straightdope.com/t/four-members-of-congress-sue-to-declare-filibuster-unconstitutional/622116/104 "2012-05-17T22:23:24Z")
> [@dngnb8](#): > > If Reps take the White House, guess what they have to look forward too… > > The same argument is being said differently over and over. Doesnt matter how many different ways you say it. > > All I hear so far is Kool Aid rebuttals. If the Republicans take the Senate and presidency, I predict right now that the Democrats will filibuster as many things as the Republicans do now (an appropriate, proportional response to Republican filibuster malfeasance). If the Democrats then take the Senate and presidency back, I predict that the Republicans will, as they have done every time this has happened since the 1960s, approximately double the average number of filibusters per legislative session–for no reason, other than raw obstructionism. An “obstructionism” motive can be inferred by the number of times the Republicans have blocked or attempted to block policies they have supported in previous legislative sessions. You honestly don’t see ANY difference between those two behaviors? Also, let me guess: Ron Paul fan? ---
**Author:** ![dngnb8](https://avatars.discourse-cdn.com/v4/letter/d/977dab/32.png) [@dngnb8](https://boards.straightdope.com/u/dngnb8)\ **Post date:** [May 17, 2012, 10:33pm UTC](https://boards.straightdope.com/t/four-members-of-congress-sue-to-declare-filibuster-unconstitutional/622116/105 "2012-05-17T22:33:19Z")
> [@Zeriel](#): > > If the Republicans take the Senate and presidency, I predict right now that the Democrats will filibuster as many things as the Republicans do now (an appropriate, proportional response to Republican filibuster malfeasance). > > If the Democrats then take the Senate and presidency back, I predict that the Republicans will, as they have done every time this has happened since the 1960s, approximately double the average number of filibusters per legislative session–for no reason, other than raw obstructionism. An “obstructionism” motive can be inferred by the number of times the Republicans have blocked or attempted to block policies they have supported in previous legislative sessions. > > You honestly don’t see ANY difference between those two behaviors? Do you honestly believe that the dems count filibusters and then get together and say Okay, they did this 12 times, that is all we can do… :rolleyes: > [@](#): > > Also, let me guess: Ron Paul fan? Not really. I agree with him there needs to be big changes, but I think his ideas are wacked. ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [May 17, 2012, 10:50pm UTC](https://boards.straightdope.com/t/four-members-of-congress-sue-to-declare-filibuster-unconstitutional/622116/106 "2012-05-17T22:50:07Z")
> [@ElvisL1ves](#): > > How’s that workin’ for ya lately? Right now, with the painless filibuster, the minority doesn’t have to let \*anything \*pass. And they don’t. Their stated goal is to defeat Obama, and that means making him fail; never mind that it means making the country fail too. Day is going to come when the Republicans take back the Senate. I hope not in November, but it’ll happen eventually. Then, if something like the Ryan plan makes it through the house, I pray it gets filibustered. That’s why I say keep the filibuster. ---
**Author:** ![Trinopus](https://avatars.discourse-cdn.com/v4/letter/t/2bfe46/32.png) [@Trinopus](https://boards.straightdope.com/u/Trinopus)\ **Post date:** [May 17, 2012, 10:52pm UTC](https://boards.straightdope.com/t/four-members-of-congress-sue-to-declare-filibuster-unconstitutional/622116/107 "2012-05-17T22:52:55Z")
> [@Zeriel](#): > > If the Republicans take the Senate and presidency, I predict right now that the Democrats will filibuster as many things as the Republicans do now (an appropriate, proportional response to Republican filibuster malfeasance). . . . I think, at that point, the “nuclear option” would be invoked against them. These are not the kinds of people who can take what they dish out… ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [May 17, 2012, 11:02pm UTC](https://boards.straightdope.com/t/four-members-of-congress-sue-to-declare-filibuster-unconstitutional/622116/108 "2012-05-17T23:02:08Z")
> [@John\_Mace](#): > > I want to know which bars he’s using because, depending on what he’s looking at, I can tell him where his analysis is wrong even if the data isn’t what he thinks it is. I was using the tallest (orange) ones thinking those meant the number of times a filibuster was initiated. Now I am not so sure (I came across the bit that the senate does not record filibusters only this afternoon). Not sure what the author of the article was looking at. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [May 17, 2012, 11:10pm UTC](https://boards.straightdope.com/t/four-members-of-congress-sue-to-declare-filibuster-unconstitutional/622116/109 "2012-05-17T23:10:22Z")
> [@Captain\_Amazing](#): > > Day is going to come when the Republicans take back the Senate. I hope not in November, but it’ll happen eventually. Then, if something like the Ryan plan makes it through the house, I pray it gets filibustered. That’s why I say keep the filibuster. Yes, it does have a purpose, in cases extreme enough to be worth reading the phone book for a week, getting the resulting press attention, and swaying public opinion against the steamrolling majority. But it certainly does need to be that rare. Ending Medicare (and I’ll even drop the “as we know it” crap) would certainly be worth it. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [May 17, 2012, 11:15pm UTC](https://boards.straightdope.com/t/four-members-of-congress-sue-to-declare-filibuster-unconstitutional/622116/110 "2012-05-17T23:15:17Z")
> [@Whack-a-Mole](#): > > I was using the tallest (orange) ones thinking those meant the number of times a filibuster was initiated. > > Now I am not so sure (I came across the bit that the senate does not record filibusters only this afternoon). > > Not sure what the author of the article was looking at. OK. Let’s forget about whether or not that’s the right metric for a moment. From '77 to '94, there’s just a general trend upwards. Take away the lines showing who was in control, and all you don’t see any natural groupings-- just an upward trend. The anomalies are just the last two majorities. I think this is a recent change we’re seeing, not something that the GOP has been leading the charge on for decades. More of a general trend to increase, a long leveling off with minority Dems (for whatever reason), and a big spike when the GOP most recently became the minority party. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [May 17, 2012, 11:20pm UTC](https://boards.straightdope.com/t/four-members-of-congress-sue-to-declare-filibuster-unconstitutional/622116/111 "2012-05-17T23:20:58Z")
> [@dngnb8](#): > > Do you honestly believe that the dems count filibusters and then get together and say > > Okay, they did this 12 times, that is all we can do… :rolleyes: Of course not. It is more like when you get in a heated battle with your SO. Perhaps you want to say some hurtful things but restrain yourself. Then your SO lands one below the belt. So you figure to respond in kind. Then your SO hits way below the belt so you figure the gloves are off and do something similar. There used to be a sense of collegial harmony in the senate. Sure they would get into fights and occasionally bruising ones but they were there to do the work of the people and, by hook or crook, they generally did. They also used to have respect for the office of the president even if they didn’t particularly like the guy who was sitting in the seat. Republicans have been moving the bar over what is worth being recalcitrant on. As they do dems figure the reps have demolished some unwritten taboo and figure they are free to go there now too. Most recently they have dropped even the pretense of respect for the office of the president and are unremittingly hostile to Obama. I forget which one but one senator actually voted against a bill that the senator sponsored after Obama came out and said he liked the bill too. Congress, especially the senate, is no longer working for the people. They are special interests who rebuke any notion of compromise which is so essential to a democracy. The dems are certainly nothing to be proud of (frankly they suck too) but the republicans are truly off the rails crazy. ---
**Author:** ![Zeriel](https://avatars.discourse-cdn.com/v4/letter/z/58956e/32.png) [@Zeriel](https://boards.straightdope.com/u/Zeriel)\ **Post date:** [May 17, 2012, 11:30pm UTC](https://boards.straightdope.com/t/four-members-of-congress-sue-to-declare-filibuster-unconstitutional/622116/112 "2012-05-17T23:30:03Z")
> [@dngnb8](#): > > Do you honestly believe that the dems count filibusters and then get together and say > > Okay, they did this 12 times, that is all we can do… :rolleyes: So far, whether or not they count like that, it’s held true for multiple changeovers. Roll your eyes all you want, the historical record is what it is. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [May 17, 2012, 11:32pm UTC](https://boards.straightdope.com/t/four-members-of-congress-sue-to-declare-filibuster-unconstitutional/622116/113 "2012-05-17T23:32:32Z")
> [@Zeriel](#): > > So far, whether or not they count like that, it’s held true for multiple changeovers. Roll your eyes all you want, the historical record is what it is. I think we have just established that either a) we don’t have the data to prove this or b) it isn’t true for “multiple change overs”. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [May 17, 2012, 11:35pm UTC](https://boards.straightdope.com/t/four-members-of-congress-sue-to-declare-filibuster-unconstitutional/622116/114 "2012-05-17T23:35:34Z")
> [@Jack\_Batty](#): > > So … um, what was the final resolution on that? Voted down? Got a tally of the voting rolls on that one? – I’d be extremely interested to see exactly which Senators were the dick-holes. The bulk of the Democrats followed Reid’s request and voted against it. [Reid now admits](http://www.huffingtonpost.com/2012/05/11/harry-reid-filibuster-reform_n_1510167.html) he had overrated the GOP’s basic sense of responsibility and should have supported it. You can’t make a “gentlemen’s agreement” with non-gentlemen. ---
**Author:** ![Zeriel](https://avatars.discourse-cdn.com/v4/letter/z/58956e/32.png) [@Zeriel](https://boards.straightdope.com/u/Zeriel)\ **Post date:** [May 18, 2012, 1:06am UTC](https://boards.straightdope.com/t/four-members-of-congress-sue-to-declare-filibuster-unconstitutional/622116/115 "2012-05-18T01:06:37Z")
> [@John\_Mace](#): > > I think we have just established that either a) we don’t have the data to prove this or b) it isn’t true for “multiple change overs”. Hmmm. From the [Senate data](http://www.senate.gov/pagelayout/reference/cloture_motions/clotureCounts.htm) on that, we see a pattern of basically nothing (0-2) until 1961 with an anomalous spike in '25-26 (Coolidge, R controls both houses). It jumps up a little with JFK (under D controlling both houses). to around 5-10. It jumps up more than double in 71-72 under Nixon (under D controlling both houses) and again in 73-74 (same conditions). Then it stays in that 25-50 range for a while. A new record high of 54 in 87-88 (control of both houses shifted to D). A new record high of 60 in 91-92 (D in control of both). A new record high of 80 to welcome Mr. Clinton in 93-94 (D in control of both). It stays in that 60-80ish range until 2008. It jumps to 139 in 07-08, which also marks the first time since 1995 the Dems had control of both houses, and stays there to welcome Mr. Obama. * * * Now I’ll be the first to admit that there isn’t serious data on the number of filibusters actually performed. However, the inferred data from the pattern of changes in the data about cloture motions being filed is pretty damning by itself. ---
**Author:** ![2sense](https://avatars.discourse-cdn.com/v4/letter/2/e47774/32.png) [@2sense](https://boards.straightdope.com/u/2sense)\ **Post date:** [May 18, 2012, 7:57am UTC](https://boards.straightdope.com/t/four-members-of-congress-sue-to-declare-filibuster-unconstitutional/622116/116 "2012-05-18T07:57:34Z")
> [@septimus](#): > > Senator Tom Udall [moved to change the rules](http://www.tomudall.senate.gov/?p=press_release&id=740) on the opening day of the present Session. These new rules would not even have eliminated the filibuster, just the “procedural” filibuster. This motion itself could not have filibustered so would have passed with support from 50 Senators plus Biden. I see nothing in the link to change my belief that you can not eliminate the “procedural filibuster” while keeping the “talking filibuster”. Here’s the quote: > [@](#): > > • **Talking Filibuster:** Ensures real debate following a failed cloture vote. Senators opposed to proceeding to final passage will be required to continue debate as long as the subject of the cloture vote or an amendment, motion, point of order, or other related matter is the pending business. Again we face the reality that there is no incentive to schedule debate on a question the Minority is filibustering. Unless they were proposing additional rule changes they didn’t describe this is just a pretend solution since bringing up filibustered questions as pending business would simply be a waste of time. Nor can I imagine what sort of additional rule changes Senators would find palatable that would address the situation. I don’t see how it can be done without abandoning the fiction that debate itself has any value. Then you could allow individual Senators to yak away to a (nearly) empty chamber and the filibuster is now more burdensome on the Minority than the Majority. But once you admit that Senators are not actually seeking to change the minds of their fellows but are shaping their remarks for public consumption, what then is the point of allowing unlimited debate? So I was exaggerating before. You can eliminate the procedural filibuster and still have the talking filibuster. But only by undermining the very foundation of that tradition. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [May 18, 2012, 10:19am UTC](https://boards.straightdope.com/t/four-members-of-congress-sue-to-declare-filibuster-unconstitutional/622116/117 "2012-05-18T10:19:16Z")
> [@2sense](#): > > Again we face the reality that there is no incentive to schedule debate on a question the Minority is filibustering. Only if you think they can keep it up forever, _and_ will have enough net public support to encourage them to continue, \*and \*are willing to set everything else aside in their cause. But that hasn’t often happened historically, has it? Your approach to countering filibustering isn’t even to negotiate with terrorists; it’s to simply surrender to them. ---
**Author:** ![septimus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/septimus/32/410_2.png) [@septimus](https://boards.straightdope.com/u/septimus)\ **Post date:** [May 18, 2012, 12:19pm UTC](https://boards.straightdope.com/t/four-members-of-congress-sue-to-declare-filibuster-unconstitutional/622116/118 "2012-05-18T12:19:12Z")
> [@Ravenman](#): > > The whole concept of new rules being adopted on the first day of a new session of the Senate is flawed. Employing the nuclear option on day one of a new session of the Senate is exactly the same as employing the nuclear option on any other day of session… > > Note: by nuclear option, I mean employing the general rules of the Senate to allow 51 members to vote for a precedent that would overrule a specific rule of the Senate that would require 67 votes to actually rewrite… Just to be clear, I think you’re saying that the “nuclear option” is available at any time. > [@ElvisL1ves](#): > > The bulk of the Democrats followed Reid’s request and voted against it. [Reid now admits](http://www.huffingtonpost.com/2012/05/11/harry-reid-filibuster-reform_n_1510167.html) he had overrated the GOP’s basic sense of responsibility and should have supported it. You can’t make a “gentlemen’s agreement” with non-gentlemen. Then, if **Ravenman** (or rather, my interpretation of his comment) is correct, why not go nuclear now? BTW, I don’t think a simple count of filibusters is key to quantifying obstructionism. Democrats filibustered particularly incompetent right-wing judicial appointments, and acquiesced when respected right-wingers were proposed. The GOP filibusters all “liberal” judges. ---
**Author:** ![Lightnin](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lightnin/32/180_2.png) [@Lightnin](https://boards.straightdope.com/u/Lightnin)\ **Post date:** [May 18, 2012, 1:25pm UTC](https://boards.straightdope.com/t/four-members-of-congress-sue-to-declare-filibuster-unconstitutional/622116/119 "2012-05-18T13:25:07Z")
> [@dngnb8](#): > > The second side is wrong as well. Period. 2 wrongs do not make it right So as long as Dems filibustered _at least once_, they’re just as bad? ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [May 18, 2012, 4:02pm UTC](https://boards.straightdope.com/t/four-members-of-congress-sue-to-declare-filibuster-unconstitutional/622116/120 "2012-05-18T16:02:55Z")
> [@septimus](#): > > Just to be clear, I think you’re saying that the “nuclear option” is available at any time. Yes, the nuclear option is available any time, as there is no special significance of the first day of a new Senate session. But don’t infer that I think the nuclear option is a good thing. I am merely saying that a thug could punch you in the nards and take your lunch money on New Years Day, Flag Day, or your birthday, and the timing of his action is not significant. ETA: By the way, it would be exceptionally stupid for the Democrats to try to pull the nuclear option now. It’s a presidential election year, so no big legislation gets passed anyway, and there’s a better than decent chance that Republicans could retake the Senate in 2012. Do Democrats really want to risk going into the minority after just having abolished the filibuster? As has been pointed out many times, one’s view of the filibuster tends to shift depending on which party is in power. [Previous page](https://boards.straightdope.com/t/four-members-of-congress-sue-to-declare-filibuster-unconstitutional/622116.md?page=5) [Next page](https://boards.straightdope.com/t/four-members-of-congress-sue-to-declare-filibuster-unconstitutional/622116.md?page=7)