Josh Marshall and the Filibuster
A few days back, Josh Marshall wrote:
It is just bad practice — especially in the face of the last eight years — for numerical majorities not only to use the power of their numbers in straight up votes but to change the rules of the game itself. Notwithstanding the fact that filibuster has been increasingly abused, it was wrong in 2005 and it would be wrong now.
I think this is backwards. The specific thing Republicans were trying to do in 2005, create a special “no filibusters of judicial nominees” rule, was silly. But the correct response, and I said so at the time repeatedly, was to propose to eliminate the filibuster altogether. The filibuster rule was a bad rule when it was used to block anti-lynching legislation in the 1920s, it was a bad rule when it was used to block civil rights legislation in the 1950s, it was a bad rule in 2005, and it’s a bad rule in 2008. Even absent the ability to filibuster the United States would still have an unusually large number of “veto points” at which potential legislation can be blocked, and there’s no compelling reason to add a supermajority requirement to senate votes.
What’s more, as Robert Farley observes the argument from tradition doesn’t really hold up. Traditional practice was for the filibuster to be broken out rarely as an extraordinary tactic. But over the past fifteen years or so, for some reason or another (perhaps related to the increased ideological coherence of the parties), it’s become more-and-more common so that we now speak of a 60-vote threshold as the ordinary hurdle for legislation to pass. Perhaps one can mount a defense of this de facto supermajority requirement on the merits, but it should be understood that routine filibustering is a very recent innovation and that eliminating the filibuster would leave us closer to our traditional practices.
56 Responses to “Josh Marshall and the Filibuster”
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December 15th, 2008 at 3:35 pm
…but it should be understood that routine filibustering is a very recent innovation and that eliminating the filibuster would leave us closer to our traditional practices.
Right. Perhaps to make jettisoning the filibuster less politically explosive, it could be officially retained in certain select areas (foreign treaties, say, or cabinet appointments with national security implications).
December 15th, 2008 at 3:42 pm
Abolishing the fillibuster because the practice is being abused is a little like abolishing free speech because people in movies are using the F word too much. I hardly think the answer to problems with the Senate is to make it more like the House.
Mike
December 15th, 2008 at 3:47 pm
The reason the filibuster is more popular now is because its a lot easier. If it was like it was back in the day, when you had to read from the phone book for 24 hours straight, its use would be a lot less popular.
December 15th, 2008 at 3:49 pm
Make the blowholes talk non-stop in order to filibuster. If they can’t go home or out to dinner, maybe they’d change their minds.
Jeff Smith in Mr Smith goes to Washington–now that was a man with enough conviction to make himself hoarse and almost pass out from filibustering!
December 15th, 2008 at 3:49 pm
I agree with Spike. Eventually people run out of breath, and the filibuster ends. Nowadays, you can filibuster from home or some sillyness and it can go on for weeks instead of the day long marathon of yore.
December 15th, 2008 at 3:50 pm
How about simply requiring that they actually filibuster? The physical act of holding the floor for long enough to make the other side give in or until a supermajority tells you to stuff it with cloture is in itself restricting, and I doubt they would be quite so keen to actually get out there and do it on any regular basis.
December 15th, 2008 at 3:52 pm
I have been stunned by the Democrats’ quiescence in the face of these Republican filibusters. They should be a political issue. The measures they block almost by definition have wide popular support, and the Republicans’ actions are, while in accordance with the Senate’s rules, profoundly anti-democratic. In 2005, the Republicans waged a fierce campaign against the Democrats’ filibusters, and they had considerable success in pointing out the un-democratic nature of the system and in demanding an “up-or-down” vote on Bush’s judicial picks. Why the Democrats were not waging their own campaigns of this sort in favor of numerous popular legislative efforts in the last two years (the S-chip vote comes readily to mind), and demanding their own “up-or-down” votes, is beyond me.
December 15th, 2008 at 3:54 pm
As I said in a previous post, I never bought the Republican idea that filibustering legislation is A-OK but filibustering judicial nominations is a party foul.
If anything legislation is temporary and should reflect the will of the majority while lifetime nominations should be consensus choices. My solution would be to eliminate the filibuster but put in place a supermajority requirement for judges like we have for treaties.
December 15th, 2008 at 3:58 pm
Well, just out of curiosity, then, if rules are ever to change — including rules creating the filibuster in the first place — are ever to change, who should change them? These aren’t Constitutional rules. Should rules of the Senate only be changed by Constitutional Amendment? By a unanimous vote? By a committee? By a minority? What, then?
December 15th, 2008 at 3:59 pm
The filibuster has to go. It is bad enough that the Senate give as much voting weight to Idaho as it does to California (really got to change that); but add to that the ability of a small minority of senators to bring all national legislation to a halt and it must turn the U.S. Senate into the world’s most undemocratic legislature.
LBJ had to out last an 83 day filibuster just to pass legislation guaranteeing African Americans the right to vote. I don’t care if it takes a constitutional amendment; progressives need to begin to abolish the filibuster.
December 15th, 2008 at 3:59 pm
The problem with the make-them-hold-the-floor strategy is that it blocks the consideration of all other legislation. So, if the majority has any other legislative goals, they get lost, as well.
Do people think that a committed minority cannot hold the floor, or that they will be “shamed” by having to read the phone book on CSPAN at 3 AM? Especially on something like the bailouts which are not particularly popular.
The problem in the rule, not in the supposed lack of courage on the part of the leadership.
December 15th, 2008 at 4:00 pm
I agree with post #6 – burndtdan – about requiring actual filibusters. At some point (1/20/09?) Harry Reid should start actually doing his job and force these Confederate state and territories’ Republicans to at least spend all night talking.
Let the American people actually see O’Connell, Shelby, Corker and the rest of these fools talking for days on end preventing President Obama’s agenda from being enacted.
How about Matt, Ezra and all the rest of these heavy hitter bloggers starting to question Harry Reid on this? Let’s find out – now – exactly what Harry has in mind? . . . If he does not plan to do it – let’s start agitating for a change.
December 15th, 2008 at 4:00 pm
Make them do it; make the filibuster; make them tie up the body so that nothing else can get done. I’m tired of all the freakin’ comity…
December 15th, 2008 at 4:02 pm
I think Nate Silver has it right today when he criticizes Harry Reid for allowing Republicans to use procedural filibusters in place of actual filibusters. At very least, if they want to stop something from getting an up-or-down vote, senators should have to get up, Mr. Smith style, and read recipes or bloviate about the greatness of our nation. Letting people get away just on these cloture votes is nonsense.
December 15th, 2008 at 4:05 pm
The filibuster has become more common because people no longer need to actually talk for hours. It’s now a matter of courtesy that if cloture fails, you move on to something new.
It was intended to move things along, and for a while, it did, until it was realized that the filibuster was too easy, so it became used reflexively.
December 15th, 2008 at 4:07 pm
But over the past fifteen years or so, during those times when the Dems have been in the majority, it’s become more-and-more common so that we now speak of a 60-vote threshold as the ordinary hurdle for legislation to pass.
There – fixed that for you.
December 15th, 2008 at 4:10 pm
I agree, more real filibusters. If someone wants to filibust something, make the stand up in front of the cameras and talk. That would change to the preception of who is blocking what.
December 15th, 2008 at 4:10 pm
I’m with the others who favor making them actually filibuster. This remedy already exists. If the Senate Dems give it a good-faith workout and it still doesn’t work, then there’s an argument for changing the rules.
But when the Dems haven’t exhausted the remedies available under the existing rules, any case that they need new rules is pretty weak.
December 15th, 2008 at 4:17 pm
I do think that those who think that demanding an “actual filibuster” is best underestimate the problems. To enforce that (and not seem silly as one such exercise did), the Democrats would have to bring all other Senate business to a halt. As some of us remember from the 1990’s, the public does not appreciate this.
On the other hand, the Democrats have clearly been giving the Republicans a free ride by not attacking their routine use of the filibuster. The Republicans made a strong case that Democratic filibusters frustrated the will of the majority and were anti-democratic, and they got a good part of what they wanted. If the Democrats aren’t willing to put this kind of heat on the Republicans — pointing out that the desires of the majority are being blocked by a small minority — they don’t deserve to be in power.
December 15th, 2008 at 4:17 pm
Sure, let’s get rid of the filibuster. But why did Democrats never invoke the 60-vote threshold to stop the excesses of the Bush administration? Seems like the bigger problem is one party lacks opposition skills.
December 15th, 2008 at 4:21 pm
The way to restore standard practice, as others have said, is to force the wannabe filibusters to hold the floor early on for a couple of weeks — ideally on something that already has public support, but is a point of ideological pride for the GOP rump. Get Obama to use the bully pulpit mid-way through.
The Reid-era approach, where the defeat of cloture essentially kills a bill, just won’t do any more once Obama’s in the White House. The argument has been that the Senate calendar is sufficiently full that it’s better for the Dems to get less contentious or veto-proof legislation out of the door. That changes in January. Simple power politics: give the GOPpers early wins and they will use that as a platform for 2010. Get them acting like infants with temper-tantrums in the post-inauguration period, and it’s something they’ll have to work hard to erase from public memory.
It’d also give the cabloids something to do during the day: remember, the long filibusters of the past didn’t occur under the glare of rolling news coverage or The Daily Show.
December 15th, 2008 at 4:23 pm
I’m actually a bit of a fan of the real filibuster as the remedy for a procedural filibuster. It inherently favors the side that has more substantial public support, whether that side’s in the majority or the minority. Two examples, one from each side:
2007 minimum wage hike bill: if the Dems had forced the GOP to filibuster once they’d blocked cloture, it would have become more readily apparent to all that the GOP minority was blocking something that about 85% of Americans favored. How long do you think they’d have had the guts to keep talking? My guess: not very.
Killing the Federal Estate Tax (early to mid 2000’s sometime): the Dems blocked cloture, and that was that. The GOP majority could have forced them to filibuster, but the last thing the GOP wanted was greater public awareness of who they were really cutting the taxes of.
The current rules favor the Dems, on both sides of the ball – IF we take advantage of the rules as written. To not use those inherent advantages is the fundamental sin. And to advocate changing the rules, when we’re not using the rules we’ve got, is just plain stupid.
December 15th, 2008 at 4:26 pm
I say use the budget reconciliation process to make the filibuster a joke.
Flat-out, the filibuster has almost always been used by the forces of the status-quo to block needed reform, usually in the form of protecting the rights of the minority over the rights of the majority.
It’s a fundamentally undemocratic concept that should have been done away with when we established the direct election of senators.
December 15th, 2008 at 4:26 pm
In 2005 the Republicans basically got what they wanted–drastically limited judicial filibusters, including the confirmations of Roberts and Alito.
Marshall gets this wrong with “if it was wrong in 2005 it’s wrong now”–if Republicans refused to respect our filibuster, there’s no reason we should respect theirs. Arcane, fuzzy things like Senate rules and traditions aren’t categorical imperatives–one respects them only because one expects the other side to respect them.
December 15th, 2008 at 4:30 pm
I had a conversation on Friday with a staffer for Sen. Cardin about why they weren’t forcing the GOP to filibuster the GM bailout. It went like this:
Me: why wasn’t the bill still on the floor, forcing the GOP to filibuster it?
Staffer: there was no sense in “punishing” the legislators who voted against it.
Me: Why was that? Weren’t they punishing the 1 million people who’d lose their jobs if GM and Chrysler went under?
Staffer: It would be a lot more than 1 million.
Me: OK, 3 million. If the GOP legislators were punishing 3 million American workers, what was wrong with punishing them, or at least mildly inconveniencing them? Or was Sen. Cardin confident that GM would survive until the new Congress could pass a bill?
Staffer: No, he wasn’t.
Me: Then wasn’t it urgent to try to pass this thing now, or at least make sure Americans knew who was responsible for killing their jobs?
Staffer: maybe it was, but the Senate needed to move on to other things – vetting Obama’s nominees, and preparing the ’second stimulus’ bill so that it would be ready for Obama’s signature when he took office.
Me: True, but if GM fails in the meantime, that’s going to be just as big an anti-stimulus. Where does that leave you?
Staffer (desperately trying to get off the phone): I’ll pass along your thoughts to the Senator.
December 15th, 2008 at 4:32 pm
why did Democrats never invoke the 60-vote threshold to stop the excesses of the Bush administration?
Because the GOP Senate caucus was disciplined like the House, and the Dem caucus wasn’t. Some of this was on a per-issue basis, where state interests trumped party unity: for instance, the bankruptcy legislation peeled away the Delaware and South Dakota senators (usury-tastic); the energy bill had bennies for corn country, etc. And Mary Landrieu and Ben Nelson vote with Republicans like it’s second nature. (The House has its own version — the motion to reconsider — which has been invoked by Boner like it’s a new toy. )
In strict political terms, the smart move is to pick a fight where the GOP rump overestimates its strength just enough to make it clear that it’s a bunch of old rednecks railing against the new administration. That’s actually quite tricky if the two Maine senators feel the heat but it’s doable. But it’s certainly the case that Frist with his 55 GOPpers exerted the power of a supermajority.
December 15th, 2008 at 4:33 pm
These filibusters have been Repubican not Democrat.
Which does not mean that Democrats are nice guys who just can’t bring themselves to do anything so uncivil.
It means that the Democrats tacitly support the Republican agenda.
So the filibuster rule won’t change. That would force the Democrats to show their hand.
December 15th, 2008 at 4:37 pm
Here is a slightly different idea, instead of 60 votes to end debate, change it to 40 senate votes to continue debate, and the leader of the senate gets to call for a vote on support at any time during the debate.
So it would go like this, the majority want to vote on an issue but 40 or senators don’t. The minority then have to talk 24/7 but the leader of the Senate can call for a vote of support at any time (say 3 in the morning) and if the minority doesn’t get 40 votes to continue debate (with in say 1 hour), debate ends.
December 15th, 2008 at 4:38 pm
Filibusters should be required to be physical, a la Strom Thurman talking all night. That would reserve it for issues for which someone really believes deeply in (even if wrongly). This “60 votes to pass” business has got to go.
December 15th, 2008 at 5:13 pm
I’m glad to see that many more people are agreeing with a comment I posted on a similar thread a week or two ago.
But Nathaniel, is “to filibust” an actual English verb?
Make ‘em stand in the well of the senate for as long as it takes.
And I’m not sure that all other biz necessarily grinds to a halt. The Senate has all kinds of yielding and sub-rules within other rules for recognition which may allow other biz to be done.
And Reid, really, really needs to go. Really. Someone with balls needs to have that job. Having Reid in charge is like sending MattY out to drive a NASCAR race.
December 15th, 2008 at 5:52 pm
Considering that many of the filibusterers come from small states- the rule really requires a super duper majority to enact regular legislation.
December 15th, 2008 at 5:59 pm
The math of forcing them to actually talk doesn’t work. If you have 41 votes to prevent debate, you have plenty enough people to talk speak indefinitely if they take it in shifts.
Hell, with one-hour shifts, every day the leadership would be able to grant 17 senators a day off.
December 15th, 2008 at 6:00 pm
Excuse me, that should be “If you have 41 votes to prevent cloture, you have plenty enough people to speak indefinitely….”
December 15th, 2008 at 6:10 pm
“Hell, with one-hour shifts, every day the leadership would be able to grant 17 senators a day off.”
But how many Senators will be happy with having to conduct the fillibuster non-stop, which will also prevent legislation THEY favor from coming up for a vote. How long could any frivolous fillibuster run in the face of public opposition AND offering obstructing Senators a chance to have their pet bills come to the floor?
Mike
December 15th, 2008 at 6:16 pm
Dems blocked Toture legalization
Dems block financing and end Iraq war
Dems block telecomm immunity
Imagine all these headlines. The problem isn’t with the filibuster, it’s with the people we elect to represent our values. If the “progressives” had an ounce of gumption, all those headlines could have been true.
And as to stopping the people’s business, what could be more important than stopping the legalizing of torture?
And, yes, they should have to talk. Anything that drastic should be hard, requiring the majority to bend to the will of the minority.
December 15th, 2008 at 6:28 pm
Abolishing the fillibuster because the practice is being abused is a little like abolishing free speech because people in movies are using the F word too much.
Actually it is nothing like that.
December 15th, 2008 at 6:35 pm
I think the math does add up. They can’t take it in shifts because you can hold a vote as soon as one or two leave the room.
I’m with the majority of people here. Make them talk for 7 days. I want to see it.
December 15th, 2008 at 6:58 pm
You head into a version of the “problem of evil”. It gets to a point where you’re forced to conclude that the Senate majority can stop procedural fuckwittery and chooses not to, in which case it is wicked; or wishes to stop it but cannot, in which case it is powerless.
In this case, the same calendar pressure that has allowed failed cloture votes to take on the significance of filibusters (and thus make them more common) is enough to make an actual filbuster look petty, if it’s handled correctly.
Turn February into filibuster month, have Obama travel to the states represented by the main filibusterers, and see how it goes. This has to be nipped in the bud, or it’ll happen for the next two years.
December 15th, 2008 at 7:34 pm
Matt this is only true for the Democratic Party’s legislation. The republicans only needed fifty votes because the democrats would not force a cloture vote. The sixty thresh hold.
The press does not count a cloture vote against the republicans. Yet if the dems force a cloture vote it is considered a filibuster. I am sure you have noticed a difference in the legacy media’s coverage.
December 15th, 2008 at 7:46 pm
Presumably they have to amend the rules by the processes laid out by the Rules of the Senate, i.e. either by unanimous consent, or by a majority vote. To end debate on a motion to amend the rules, you need a 2/3 cloture vote. So you need 67 senators to amend the rules. This shouldn’t be a mystery – this is how the Senate rules work, and how they’ve worked since at least the 70s.
The math of forcing them to actually talk doesn’t work. If you have 41 votes to prevent debate, you have plenty enough people to talk speak indefinitely if they take it in shifts.
This assumes that all 41 of them actually want to participate in a filibuster. Voting against cloture has very different optics from actually filibustering. Your 41 votes are going to be a lot less certain in the latter case.
At any rate, just to half-defend Harry Reid for a moment, I don’t think that his performance this past congress has been cause for much blame. Even if he had managed to use parliamentary tricks to get all these wonderful bills through the Senate, they’d have just been vetoes by Bush anyway. It doesn’t seem worth the effort of forcing real filibusters, etc., when you know none of it’s going to become law either way.
Now, with Obama going to the White House, is the time to actually get tough with the filibusters and try to force things through if necessary – either by forcing real filibusters, or using the budget reconciliation process, or whatever. If Reid continues to be as soft on filibusters in the 111th as he was in the 110th, I’ll agree that he needs to go. But the basic issue at the moment is that not only does he not really have a majority, even if he could get majorities on things they would just die at the White House.
And, yeah, things worked differently when the Republicans controlled Congress because they’re much more disciplined than the Democrats. That discipline is also one reason that they’re about to have the least power they’ve had in Washington since the Carter administration. I’m going to wait and see how things go once we actually get into power before condemning shit. If nothing gets done, I’ll be irked, but let’s wait and see…
December 15th, 2008 at 7:46 pm
If you don’t like “filibust” you could go with “freebooting”.
December 15th, 2008 at 7:48 pm
The republicans only needed fifty votes because the democrats would not force a cloture vote.
I’m fairly certain this is not true. The problem was always that enough Democrats would defect to give the Republicans 60, not that the Democrats wouldn’t try to filibuster. There’s a few exceptions for budget reconciliation stuff, but that’s the basic issue.
December 15th, 2008 at 8:21 pm
Number of cloture votes.
106 congress(1999-2000) dem majority 58
107 congress(2001-2002) dem majority 61
108 congress(2003-2004) rep majority 49
109 congress(2005-2006) rep majority 54
110 congress(2007-2008) dem majority 108 through oct 3
The dems do not come close to the obstructionist level of the reps.
More here.
December 15th, 2008 at 8:29 pm
Oh and read this
http://www.au.af.mil/au/awc/awcgate/crs/rl30360.pdf
The senate majority leader can set how much debate is allowed. The most a party can obstruct for is fifteen days. However the majority leader does not have to allow that much debate. Harry Reid only allowed Chris Dodd three days in December of 2007. That was enough to table the measure for another day. The dems are letting themselves get steam rolled.
December 15th, 2008 at 9:31 pm
Abolishing the filibuster because the practice is being abused is a little like abolishing free speech because people in movies are using the F word too much.
In that case you must be against cloture at 60 votes or even 99 votes. Filibuster is like abolishing majority rule.
December 16th, 2008 at 8:59 am
There have been a couple of objections here that actual filibusters will obstruct the business of the Senate. That’s true, but it’s a feature. Ultimately, it’s the filibusterer–not the majority–who has to wear the blame for halting Senate action. So if the GOP wants to stand in the way of broadly popular legislation, the filibuster makes them do it where everyone can see what’s going on.
I’s imagine the GOP will quickly tire of the method if they’re forced to take it up–even with 41 Senators, somebody’s gotta do the graveyard shift. But it’s possible that they’ll continue to abuse the privilege, in which case we’ll have a lot sturdier ground on which debate whether to abolish the filibuster altogether.
December 16th, 2008 at 9:06 am
What we have now are not filibusters. We have faux filibusters.
I have no problem with real filibusters. It makes for high drama and real entertainment. But, I want to get my money’s worth. I want them to stand up and talk 24/7/365. I think it will force people to actually think about the subjects under discussion.
December 16th, 2008 at 9:08 am
“Ultimately, it’s the filibusterer–not the majority–who has to wear the blame for halting Senate action.”
I agree. Right now the GOP can stop all action in the Senate. Then, turn around and call the Democrats a “Do Nothing” congress because nothing gets done. A filibuster will show everyone who is really the one preventing anything from getting done.
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