In this post, Bricker rather snidely, and with an implied but deniable dash of come-see-the-liberal-hypocrisy, asks what people think about the filibuster.
And it’s an interesting topic.
I have two questions:
(a) It’s the general consensus board/left belief that the current Republican senate uses the filibuster in a qualitatively different way than any previous senate, in that they just reflexively filibuster EVERY substantive bill that the dems propose, effectively meaning that any law or appointment of any sort needs a supermajority. (I say “substantive” because I’m sure they don’t filibuster proposals to name National Accordion Awareness Month and things of that ilk).
(a1) Is there some objective way to test or demonstrate that this is true? Could we, for instance, count how many “real” bills have been voted on and passed by majorities of between 51 and 59 votes in this as compared to previous congresses?
(a2) Assuming the general view is true, it seems to me to be related to the fact that the current Republican party is SO lockstep. That is, in days past even if there were 41 of the minority party, the leader of that party couldn’t just say “ok, we’re filibustering this” and be 100% guaranteed of 41 filibustering votes period always no matter what, because individual senators wouldn’t necessarily agree, and would sometimes stray from full party compliance. Am I correct in thinking that there’s much less of that now than in times past?
(b) So what DO we think of the filibuster, in general? For me, it’s very hard to separate it from the current political climate, so I will be honest enough to admit that maybe I would feel different if a different party were the minority in the senate right now, etc. But I guess my feeling is that the filibuster as an exceptional check or balance is different from the filibuster as a routine response to anything. Which sounds a lot like “it’s OK when the democrats used to do it, but bad when the republicans do it now”. Which is what makes me question my belief enough to start this thread, but doesn’t make it automatically invalid or incorrect.
I certainly think that the “procedural filibuster” is a bad idea. If someone, or some party, cares enough to invoke the filibuster, then I want people to be able to turn on CSPAN and see someone reading the phone book, and think to themselves “this is what my senators are doing… do I really care enough about issue X to want the entire congress to grind to a halt over it?”.
I would prefer a system where sustaining a filibuster actually requires work. My understanding is as of now all you have to do is say ‘I object’. You don’t have to keep congress in session, or have someone speak endlessly to keep it up.
Make the filibuster harder to do by mandating people stay in congress and stay talking, and set it up so that after an allotted amount of time (1 week, 1 month, etc) the amount of senators needed for a filibuster drops from 60 to 58, then drop again to 56, etc until you get to 50 plus the VP.
The filibuster was not abused heavily until the 110th congress started in 2007. Since then the number has doubled from recent history.
I have a vague liking for a supermajority being required to pass controversial legislation.
I don’t like the idea that anything the opposition party votes for is definitionally “controversial.”
And I really dread the day that the party in power decides to use the “nuclear option” and change the rules, during debate, yanking the rug out from under the minority opposition. It almost happened once, and I think it will “almost happen” again. In time, some jackass will push that button.
I cannot think of any legislation I disliked that was stopped by a filibuster. I would like for it to be ended. I prefer the British parliamentary system. Under it 51 percent of the MPs can achieve nearly everything.
I think the constitution as written has enough safeguards against majority tyranny that we don’t need an extra-constitutional provision effectively requiring that legislation gets a supermajority in what is already the less democratic upper chamber. I am prepared to risk the possibility that legislation will be passed that I don’t agree with that might have been filibustered. After all, if the other party (from my personal P.O.V. “the other party” will almost certainly be the Republicans) can get a majority in the House of Representatives; a majority (of 50 votes plus the Vice President) in the Senate; and is able to put their person in the White House to sign off on the legislation; well, then, the people have spoken (by handing over the White House and both houses of Congress to one party) and the other side ought to be able to enact their program. Anything truly unconstitutional–the Protecting America By Rounding Up All the Democrats and Sending Them to the Re-Education Camps Act of 2021–will still be subject to legal challenge and being sent to the Supreme Court. (This also applies to the Senatorial practice of allowing one Senator to put a “hold” on executive branch appointments.)
I’d be open to Senate rules that allow a minority to delay legislation (or appointments); to truly force more actual debate on something. But after that, the Senate should have to vote, and if the bill passes, and has passed or passes the House, and is signed by the President, so be it.
I don’t object to forcing those cantankerous old men to talk non-stop until they give up their filibuster, but it strikes me as a bit juvenile.
To me, the part that needs changing is the Senate’s ability to continue conducting business while one of its members is ‘filibustering’.
If they’re going to filibuster they should obstruct the Senate from doing anything else to really publicize how they’re holding everything up in the name of not giving legislation a fair vote.
I completely agree with MEBuckner. The sooner someone pulls the trigger on the “nuclear option” the better, IMO. I was all for it when the GOP was hyping it and would like it even better if the Democrats had the balls to go for it. Fuzzy Dunlop has an interesting suggestion but if we allow the Senate to conduct other business while a Senator or Senators are debating against a bill (presumably in another room) then this calls into question the very purpose of debate. If Senators are sequestered in order to debate then does the theoretical reason for debate remain to attempt to convince their compatriots to agree with their views? In any case I would be in favor of allowing that sort of filibuster… even allowing multiple active filibusters to continue while the Senate Majority moves onto other measures they wish to adopt (and which the filibustering Senators aren’t present to vote against).
I think if the Republicans take the Senate the filibuster will finally disappear. They’ve used it to their advantage so many times they have to understand the Democrats won’t hold their punches in terms of using it either.
My prediction is if Romney wins they’ll also gain the Senate. At which point the filibuster gets tossed so they can ram through as much of their agenda in two years as possible.
I agree with this. If the minority truly objects to a piece of legislation, then it can be delayed for a certain period of time. Each Senator gets up to 10 hours to speak on the bill, an appeal can be made to the public, etc. so that the issue is thoroughly and fully debated. But in the end, only 51 votes should be needed to pass a bill.
No matter which party has started it, a de facto 60 vote requirement to pass legislation is too stifling when, as you said, the Constitution has plenty of checks in it to prevent rash legislation.
What if we hand each member of each political season’s new congressional year a handful of beans. Anyone can filibuster but you give up a bean when you do. When your beans are gone, you’ve used up your filibuster allotment until next season.
I don’t want to do away with it entirely, te proper place for a filibuster is when you feel that a proposed law is so egregious that it must be stopped at all costs. This should be for exceptional cases where the senate is clearly over reaching its boundaries.
Although I don’t have details the best way would to arrange it so that filibustering caries great political cost. Right now the Republicans filibustering barely raises an eyebrow. I would want it to be such an extreme event that it makes front page news, equivalent to the news that was made when the Democrats fled the Wisconsin state legislature. Then voters can decide for themselves whether it was a worthy cause to make such a stand, or if the senators filibustering are just a bunch of whiny sore losers.
I do like the idea of a filibuster’s use halting all Senate proceedings: unless you’ve got a majority of Americans behind your use of the filibuster, you’ll use up a lot of political capital every day you filibuster.
At this point, I think whichever party ends up in the Senate’s minority should push for the removal of the filibuster. They’ll gain a lot of political capital with the American populace for being more “statesmanlike”. And then hold the majority’s feet to the fire when they inevitably overreach their mandate. It’s a perfect political judo-move for regaining the majority in the next election.
If this were true then there would be a point to making the Minority to actively filibuster and we would expect to see the Majority forcing them to do so. That this doesn’t happen indicates that voters (and for that matter the people who really matter) don’t find the obstructionism all that objectionable. And political capital (unlike real capital) isn’t a huge deal to a Senator unless they are in an election year. People may get upset that they are filibustering but they move on to other concerns next year or the year after or whenever the Senator comes up for reelection. The obstructionism doesn’t seem to trump the issues of the day or general ideology. Republicans are smart to escalate the filibuster. It’s easy for them to do and there is little downside. They don’t lose any Senate seats over it and Democrats don’t have a counterbalancing threat because the major GOP policy goal is tax cuts and you can’t filibuster the budget.
Assuming you don’t wish to enshrine “Democrats get a filibuster and Republcians don’t” into law, whatever rules you make you must be able to live with no matter who’s in charge.
My tone may have come as a reaction to the New York Times, which has openly switched back and forth between saying it’s “most important that a large minority of senators has a limited right of veto” and saying “We have supported eliminating the filibuster for judicial and executive nominees. Making other filibusters harder would be good for both parties. If Mr. Reid remains majority leader in January, he should lead the reform.”
That of course is assuming the majority party doesn’t use their new found power to assure their continued majority by passing laws that would make it more difficult for the minority party to compete.
The key there is the word “limited” in the first quote. As it stands right now, the Power of the Filibuster has no limit. If it did, it wouldn’t be so bad.
The filibuster already requires the Senate to stop doing business. That’s why it is only the threat of a filibuster that is actually used now. Because the threat is the equivalent to the real thing, we treat them the same, but a real filibuster still requires a ton of effort. That’s why the current system exists. This is something everyone should be aware of before they start positing changing how it works.