What will it take for Senate Dems to be willing to break a filibuster?

Great Debates
41

Responding both to septimus and MEB:

MEB, your post seems to be about the constitutionality of the filibuster. There’s been a bit of discussion on some of the lefty blogs lately about this, and I’m sure that some of that informs your post. Nonetheless, I have to come down on the side that the Framers clearly intended that majorities of both Houses should suffice, but that that only carries the day if one is of the ‘original intent’ school of Constitutional interpretation. If the Senate wants to have a rule saying that supermajorities are needed to pass legislation, they can do that, IMHO.

I’m more persuaded by the argument septimus makes: that Article I, Section 5 of the Constitution affirmatively grants each House of Congress the authority to decide its rules by majority vote. And that it’s just a question of the Dems’ having the guts to claim that authority and use it.

Back when the GOP was threatening to use the ‘nuclear option,’ I wasn’t sure how I felt about the underlying issue, but even though no vote was taken in the end, due to the idiotic ‘Gang of 14’ compromise (the worst of all worlds, IMHO), everyone seemed to agree at the time the the GOP could have called that vote; the question was whether they had an actual majority in favor of abolishing the filibuster on judicial nominations. (They weren’t sure that they did, which was why they chose to agree to the compromise. And the Dems went along with it because they were stupid, and apparently didn’t realize that the composition of the Gang of 14 meant that they were forfeiting their right to filibuster, without the GOP’s actually having to cram it down their throats via vote. But I digress.)

42

Here is an article that goes over what it would take to change the rules. Currently Rule 22 requires two-thirds majority to change the filibuster rule. But, a strict reading of the Constitution could be taken to mean that each two year session of Congress can set its own rules, meaning they are not bound by Rule 22 unless they vote to continue it with a 51% majority every two year session.

43

The article makes the point that:

However, once you’ve gotten rid of the need for a 2/3 majority to change the rules, the simplest course would be to eliminate any other rules that were used simply as delaying tactics, by a simple majority vote.

If a party has the White House and a majority in both houses of Congress, they ought to be able to legislate. Period.

44

I am ok with forcing the majority to hear objections of the minority. I am even comfortable with a system that allows a dedicated minority to have disproportionate influence, but only if the influence requires that dedication and extracts a cost. If a bill would have a small positive effect for a majority but a large negative effect for a minority, the minority should be able to offset the size and block the bill, as long as the bar is high enough that it will only work when the minority cares a lot more about blocking than the majority does about passing. The minority should not be able to stop everything all the time no matter how much the majority may want or need it.

Jonathan

45

It would take a new set of Senate Dems, ones that aren’t bought and paid for by corporations.

46

And in the wake of Citizens United, that’s a bigger pipe dream than ever.

47

Neither you nor I thought so when Bush’s GOP had that situation, remember?

There’s a good reason for the filibuster rule to exist, just as there’s a good reason for the Constitution to be amendable, but both need to be very difficult.

48

I’ve done a bit of digging to try to find how I felt about this back then. I was clearly in favor of judicial filibusters, although I thought that such filibustering should have to take place in the open, where the public would know who was obstructing, so the citizenry could reach their own conclusions about the filibusterers. That’s pretty much how I still feel: because judicial appointments can’t be undone, there should be a higher hurdle to clear. (Ditto wars: there should damned well be a supermajority requirement for committing troops overseas. You can’t undo going to war, and we should damned well be united as a nation in doing so.)

I probably felt the same way about legislation in general, so your question is a good one: have I changed my mind now that my side’s got the power? I can’t say I haven’t: I can give you my reasons for changing my mind, but that hardly excludes the possibility that those reasons are rationalizations for changing my position for reasons having to do with whose ox might get gored.

Basically, my thinking has been shaped by the increasing realization that our system’s essentially turned into a parliamentary system, just without the official structure of one. What’s more, that appears to be the natural way of things. The era when many conservative Democrats were more conservative than many moderate and liberal Republicans - the era of ‘bipartisanship’ that Broder et al. celebrate - seems to have been an artifact of the long years of Jim Crow, rather than a natural situation. And in parliamentary democracies, the winning side gets to enact its agenda; if the voters don’t like that agenda, they shouldn’t have voted for that party in the first place, and if they change their minds once that agenda’s enacted, they can vote the bums out. But ineffectiveness at enacting an agenda doesn’t play into it - and my increasing feeling is, it shouldn’t: if you win, you get to pass legislation, and if you lose, the other side gets to repeal it and pass theirs. If certain programs become popular enough (e.g. Medicare), then even the side that was against it won’t run on repealing it or cutting it back. But what it creates is a clear field for accountability to the voters. A visible filibuster that requires more inconvenience on the part of the minority than the majority, per your suggestion, would be a big step in the right direction, but it’s still one more thing for voters to have to observe that might still fly below their radar.

Most voters don’t spend a lot of time thinking about government. I’m all for reducing the equation for them to: ‘Party A ran on X, Y, Z, and won. Now that they did X, Y, and Z, how’s that working out?’

I think democracy can work at that level. But the more procedural complexity in the system that puts roadblocks in the way of a party with the Presidency and Congressional majorities from doing what they said they’d do, the less clear it is to voters who’s responsible for the difference between running on X, Y, and Z, and only doing X. Makes voters more cynical too.

49

As I said before, a weakened version of the filibuster has some utility. I would be ok with being able to invoke cloture with 55% (or maybe even 60%) of the current quorum. That way both sides have to suffer the hardship. As it is now, the minority can stop all business much easier than the majority can restart it.

50

It is 60% now.

51

No, it is 60 members, or 60 percent of the body. One of things we discussed above is that it is much more arduous to be on the breaking side during a filibuster because at least 50 or 51 members of the breaking side need to be available at any time of the day or night in case a quorum is called, while only one or two of the filibusters need to be present. If it only took 60% of the quorum, then with 50 breakers, you would need at 34 of filibusters would need to be present to block cloture and if all 57 of the current Dems where in the chamber, at least 38 of the Republicans would need to be present.
That at least makes them work for the filibuster.
Jonathan