The government can function if the minority party has either the incentive to make the majority fail or the power to make the majority fail. It cannot function if it has both.
Ezra has a series of filibuster-related posts up today with are worth reading, beginning with an overview.
This might seem an odd moment to argue that the Senate is fundamentally broken and repairs should top our list of priorities. After all, the Senate passed a $900 billion health-care bill Thursday morning. But consider the context: Arlen Specter’s defection from the Republican Party earlier this year gave Democrats 60 votes in the Senate — a larger majority than either party has had since the ’70s. Democrats also controlled the House and the presidency, and were working in the aftermath of a financial crisis that occurred on a Republican president’s watch. This was a test of whether a party could govern when everything was stacked in its favor.
The answer seems to be, well, not really. The Democrats ended up focusing on health-care reform’s low-hanging fruit: the bill the Senate ultimately passed does much more to increase coverage than it does to address the considerably harder problem of cost control, it strengthens the existing private insurance system and it does not include a public insurance option. And Democrats still could not find a single Republican vote, which meant they had to give Nebraska a coupon entitling it to a free Medicaid expansion and hand Joe Lieberman a voucher that’s good for anything he wants. If the Senate cannot govern effectively even when history conspires to free its hand, then it cannot govern.
There’s an interview with a political scientist, who “published a study showing that about eight percent of major bills in the 1960s faced filibusters or filibuster threats and 70 percent of bills in the current decade did the same.” The point being, the filibuster has not, historically, been a routine supermajority requirement.
There are two interviews with currently sitting Senators about how the filibuster rule might be restored to what it originally was — a guarantee that no bill could be passed without some opportunity for debate.
First, Senator Tom Harkin, who wants it known that he was actively in favor of fixing the filibuster even when his party was in the majority minority, brings back a proposal that he and Joe Lieberman (!) came up with in 1995:
The idea is to give some time for extended debate but eventually allow a majority to work its will. I do believe there’s some reason to have extended debate. If a group of senators filibusters a bill, you want to take their worries seriously. Make sure you’re not missing something. My proposal will do that. It says that on the first vote, you need 60. Then you have to wait two days, and on the third day, you need 57 votes. And then you need to wait two days, and on the third day, it’s 54 votes. And then you’d wait another two days, and on the third day, it would be 51 votes.
And there’s an interview with Jeff Merkeley (Oregon has really great Senators, incidentally), who has this suggestion:
…one question we’re asking is how do you get two-thirds of the body to agree to change the rules when there’s immediate pressure for the minority to protect themselves? Your rule changes could kick in in 6 to 8 years. Or you could have rule changes that are designed to trigger when the two sides are more or less even. So when there’s a 55-45 majority, it wouldn’t kick in, but it would at 52-48. Or think about with nominations. We’re really paralyzing the executive branch.
Back to quoting Ezra:
The danger of reforming the Senate is that, like health-care reform before it, it comes to seem a partisan issue. It isn’t. Members of both parties often take the fact that neither Democrats nor Republicans can govern effectively to mean they benefit from the filibuster half the time. In reality, the country loses the benefits of a working legislature all the time.
But members of both parties have become attached to this idea that they can block objectionable legislation even when they’re relatively powerless. This is evidence, perhaps, that both parties are so used to the victories of obstruction that they have forgotten their purpose is to amass victories through governance. Either way, a world in which the majority can pass its agenda is a better one, a place where the majority party is held accountable for its ideas and not for the gridlock and inaction furnished by the Senate’s rules.
I like the reverse auction filibuster plan. It prevents ramrodding things through without discussion, but leaves the Senate able to move forward when there are majorities for things.
I first saw this in my RSS reader where I don’t pay a lot of attention to the headers, read Harkin’s statement, and thought “I should send this link to Amp, he would think this is a good idea.”
I tend to think of these things in terms of metaphors. For example, in the Cold War, all sides having nukes was fine, because no one USED the damn things. The assumption was that they wouldn’t be used just on a whim.
Now post-Cold War the worry is some idiots will get nukes and use them any time someone posts a cartoon in a Danish newspaper they don’t happen to like. So now nukes are 100% a “bad thing” and should be taken away from excitable people
Post GWB, the Republicans feel they MUST use this purely parliamentary nonConstitutional rule any time their widdle feelings get bruised. What USED to be reserved for “This is a really bad idea” or for Strom Thurmond to try and prevent civil rights from occurring is now a daily event. So now filibusters are 100% a “bad thing” and should be taken away from excitable people.
I wonder why no one saw fit to filibuster repealing the bank regulations that developed after the Great Depression…
well, that wouldn’t count. there you had a democratic president (clinton) governing from the right, so for the minority party (the more left-wing party, in this case) to filibuster would mean damaging their own president. Bush’s medicare pt D also didn’t face a filibuster since you had a right wing prez governing from the left, so why would the minority party (in this case the more leftwing party) filibuster something they want.
now we have a left wing prez governing from the left with the rightwing party in the minority. so perfect storm for a filibuster.
I’d modify the Harkin proposal to allow actual filibusters with no moves to adjourn by the minority (assuming I understand the rules correctly). I don’t know if that would have any effect in practice, since most of the current Senators appeared to consider staying up all night a grave imposition.
In other words, if a Senator believes they can sway the American people to their side of the issue but they need more than nine days, they should have the right to endanger their own health talking non-stop to extend the time limit. But they don’t get to make the rest of the Senate listen to them. (The other Senators know the minority’s position by this point.)
Under the radar, Obama pushes for Patriot Act renewal
http://joshfulton.blogspot.com/2009/12/under-radar-obama-pushes-for-patriot.html
I’ll point out here that the Democrats do not have 60 votes in the Senate. They have 58, and while Sanders is a reliable left-side vote, Lieberman should not be counted as a Democratic vote, even if he caucuses with the Dems.
The interesting thing to me is that there hasn’t been an actual filibuster for some time. Back in the day you had to actually filibuster – you had to take the floor of the Senate and speak. Eventually people would run out of stamina, debate would be over, and a vote would be taken. Nowadays it’s like a courtesy filibuster, and nobody actually has to speak. Maybe if that was changed back to the days where you had to
The filibuster doesn’t bother me too much, and not just because in this instance it is helping my cause. We are not SUPPOSED to be a pure democracy. 50% +1 vote SHOULDN’T be able to make radical change in American society. Something I should think you’d be grateful for given that it wasn’t that long ago that Republicans had the White House and the Congress and probably will again some day. These things do go in cycles. Do you really think that the Democrats are going to be in charge forever?
And if the Democrats had one more vote in the Senate all this would be moot, anyway. So if you don’t like it, go get another Democrat elected.
What? The Democrats don’t get every single thing they want and they can’t “govern effectively”? The United States doesn’t have a “working legislature”?
Good. President Obama got elected, what, 53% to 47%? That doesn’t sound like a clairon call for radical change to me. Folks, we don’t live in a parliamentary system. A political party shouldn’t be able to “govern”. Let the Democrats put forward some proposals that don’t turn things completely inside out and can attract a few Republicans like Sen. Olympia Snowe and they can get some things done.
The interesting thing to me is that there hasn’t been an actual filibuster for some time. Back in the day you had to actually filibuster – you had to take the floor of the Senate and speak. Eventually people would run out of stamina, debate would be over, and a vote would be taken. Nowadays it’s like a courtesy filibuster, and nobody actually has to speak. Maybe if that was changed back to the days where you had to.
It bugs the hell out of me that all the Republicans have to do is threaten a filibuster and the Democrats start folding to this and that demand just to get one more vote. Let’s see them actually do it.
That said, I’d be fine with the type of cloture rules that Amp described.
Ron, do you understand that repeating what has just been said, except as a question, does not actually comprise an argument?
60% of the Senate is either Democratic or is caucusing with Democrats; those 60 Senators were voted for by about 66% of the public. I think that’s enough to reasonably expect the people elected by that 66% to be able to pass laws in a fairly routine manner.
As you know, the founding fathers never intended the Senate to be a supermajority institution. It’s amazing how little conservatives care about “original intent” when push comes to shove.
Roughly, I agree. 50%+1 shouldn’t be able to change federal or state constitutions (what I assume you meant by radical change). I’m sure you’d agree, though that the regular and orderly process of legislation as practiced for over 200 years of our republic doesn’t qualify as radical change, and shouldn’t require a supermajority.
—Myca
well, you liberals had a chance to get rid of the filibuster back during the nuclear option debate, but you were too short sighted and your resident dixiecrat thru an absolute hissy fit. now you’re screwed.
only option left is to pass a law killing or amending the filibuster but have it go into effect in like 10yrs, so no one benefits right away.
Yeah, I actually think that’s a fine idea. It is never in the interests of the minority to end the fillibuster, and always in the interests of the majority.
The only Dixiecrat in congress for the past 20 years, according to Wikipedia, anyhow, was Strom Thurmond, a Republican.
—Myca
ok, but i was using the term colloquially (which is how its usually used, no?), ie to describe not only those who were part of the 1948 3rd party, but also southerners who supportered segregation and/or later George Wallace’s presidential runs in th e 1960’s.
i mean, he actually filibustered the 1964 civil rights act so i couldn’t resist the swipe. you know that’s my weakness.
But that’s not what it means.
Hey, if you want to attack social conservatives, I’m down. Let’s do it.
Attacking a high-profile former social conservative who openly repudiated his past and endorsed a black man for president? Yeah, that’s fair.
—Myca
I hate to get all descriptivist, but if something is used colloquially and widely, then the way it is used is “what it means”. Although Sen. Byrd was not technically a Dixiecrat, the label has been applied widely and indiscriminately to any (broadly) southern political figure with ties to both the Democratic party and to racist policies.
Google “dixiecrat robert byrd” and you get 37,000 hits, and they’re pretty much all articles or stories in which he’s mentioned as a Dixiecrat. The very first hit is the Wikipedia article on Byrd: “Because of his opposition to desegregation, Byrd was often regarded as a Dixiecrat, a member of this Democratic Party wing that opposed desegregation and civil rights imposed by the Federal Government.”
That Byrd has repudiated his past is a positive thing, and I would find it wearying to have that past constantly alluded to in light of that repudiation – but manju is quite right about the usage of Dixiecrat.
Sorry Myca, but I have to agree with Robert that racist southern Democrats who vote like Republicans are called Dixiecrats (look at discussions of dixiecrats[edited to add link] in the Florida panhandle as a counter to conspiracy theories about Florida election fraud in 2004, where Bush’s share of the vote in the panhandle exceeded the number of registered Republicans by a large margin and larger than in 2000), even if they never ran on the Dixiecrat ticket (basically, anyone who voted for, or was likely to have voted for, or seems like they would have voted for Strom, is a Dixiecrat). Of course, I can’t agree with Manju’s idiotic tick of describing as a dixiecrat someone who was a Dixiecrat 40 years ago and who has offered extensive mea culpas for his sins.
Also, the Republican’s never tried to do away with the filibuster completely, they only threatened to rule that judicial nominations were not subject to filibuster, so his point is wrong in any case.
Fair enough. My point is merely that describing someone as a dixiecrat who 1) Wasn’t, technically, and 2) Has offered extensive apologies and gone out of his way to remedy the stuff that gets him described as one, is asinine.
—Myca
I’ve heard a proposal about simply reversing the cloture requirement so that 60 Senators aren’t required to force a vote, but that 40 Senators are required to specifically block it. At the very least, it forces pure obstructionists to put their name on record. Not a fan of altering the 60/40 math.
I agree that the “curtesy fillibuster” is BS. Make them get up there and read the phonebook for days on end. That is what a fillibuster IS.
Emily, unfortunately, that’s not how the filibuster works.
If the Democrats force the Republicans to filibuster, all that means is that every single Democrat has to sit out there, indefinitely, while Republicans (plus Lieberman) can take turns sitting there, not talking much at all, and occasionally asking for a quorum check.
Read this on Huffington Post — which is based on the research Reid’s office did, so probably best represents the current understanding of the rules in the Senate — and this interview on Ezra’s blog. And also CongressMatters, and Donkeylicious.
Sylphhead’s suggestion would force them to do “Real” filibusters, to some degree — presumably, both sides would need to keep their complete group in the chamber.
Amp, if you want to talk about original intent with regards to the Senate, that went to hell in 1913 with the 17th Amendment to the Constitution.
With regards to the ability of a minority to block action by the majority by using the filibuster, that apparently was original intent. According to the Senate’s own web site it goes back to the very beginning of the Republic. It used to happen in both houses, but has gradually been limited over the years. The ability to invoke cloture and force a close to debate is what’s relatively new, having been invented in 1917 as requiring a 2/3 vote and only having been reduced to 3/5 in 1975.
Ron, please reread my post — you clearly didn’t understand it the first time, since otherwise your response would be extremely disingenuous. You seem to be under the impression that I’m arguing the filibuster itself is a new invention, but that’s not at all what I argued.
As I wrote:
The use of the filibuster to create a routine supermajority requirement — so that over 70% (well over 70% since Obama was elected, I suspect) of bills need a supermajority to pass — is new. In contrast, the founders of the country envisioned that routine business in the Senate would be passed by a majority (with a supermajority required to overrule presidential vetos). Are you seriously arguing otherwise?
From the Reid memo, the non-filibuster filibuster does in fact sound like a recent invention:
So yeah, this quorum nonsense dates from 1917, not 1776 or Ye Olden Dayes of Parliamentarie Lore.
The use of the filibuster to create a routine supermajority requirement — so that over 70% (well over 70% since Obama was elected, I suspect) of bills need a supermajority to pass — is new.
Ah, O.K. Sorry about that. Yes, that does seem to be new. I’d say that’s because of the ease with which the speechless filibuster is now invoked. Then there’s what I’d call true desperation on the part of the opponents to things like the current health care plan and other measures that will make the electorate even more dependent on the government.
As I’ve said before, what goes around comes around. It’ll be interesting to see what the Democrats do when the Republicans get back in power. I’m still not concerned with the idea that a given party is having problems ruling because of it. But for the amount of change that the health care plan represents (yeah, I consider it radical change), I’d like to see a good bit better than a simple majority.
I hope they’ll filibuster everything, just as the Republicans are doing right now. This isn’t the sort of thing that can be unilaterally disarmed; either both sides give it up, or neither should.
Alternatively, they could get rid of the filibuster, either immediately or on some sort of timed delay, as is suggested in the post. But I doubt this will happen, because Democrats are wimps, and because the filibuster rule makes conservative Democrats very powerful as individuals even as it makes things hard for the party.
Regarding health care, this bill does everything that it can to make it possible for all Americans to have health insurance coverage while leaving the current system in place. (That’s what makes it a bad bill, from the liberal perspective.) The only thing “radical” about it is the idea that all Americans should have decent health care coverage. If Republicans are against that, then let them say so honestly and openly, instead of telling lies (“death panels!!!”).
As far as your lack of concern with permanent near-gridlock, I guess it comes down to whether or not you believe that things like the deficit, double-digit unemployment, financial regulatory reform, and most of all global climate change are real and significant problems that the government should act on sooner rather than later. If permanent inaction (or only sham actions) on all those things are acceptable to you, then you have no reason to be concerned.
But look at it the other way — wouldn’t you like Republicans to be able to pass things if they someday manage to have a majority of congress?.
It is radical to require every American to purchase a commercial product. That’s never been done before.
But not every American is required to purchase health insurance, under HCR (this is true both in the Senate and House versions). No one on Medicare faces that requirement. No one on Medicaid faces that requirement — and the number of people who can get health coverage via Medicaid is significantly increased by this bill.
Of those that remain, most already have health care coverage through employers, and so are only required to do what they’re already doing anyway. And for those on the individual market, they can always opt out of the individual mandate and pay a tax instead.
Plus, courtesy of Oregon senator Wyden, any state that can achieve the same ends (near-universal coverage plus cost control) without an individual mandate can choose to opt out of the individual mandate.
So it’s simply not true that “every” American is being required to purchase commercial insurance. Some are — just as some are currently required to purchase car insurance. It’s not identical, but it’s hardly an idea from a distant galaxy, totally unlike anything we’ve seen before.