Posts Tagged ‘Filibuster’

New Terms Needed For Unprecedented Circumstances

Wednesday, March 10th, 2010

To be succinct, I agree with everything Scott Lemieux says about the Op-Ed in The New York Times by Barry Friedman and Andrew Martin. I would add though that what seems to be the biggest problem with the column is that the writers really don’t seem to have any idea how a filibuster works. And the same can be said for anyone whose idea for breaking filibusters is to actually make the minority talk endlessly.

The confusion, I think, stems from the use of the word filibuster itself. Basically people think of the filibuster as one person talking endlessly to try to run out the clock on a motion. But that’s not what Senate minorities are doing now by voting against cloture motions and denying unanimous consent. Basically, the issue is that the Senate has only two ways to end debate and proceed with business; unanimous consent and cloture. If they fail to get either one, they can’t close debate on a question to proceed to a vote. What Republicans are doing is denying consent to move on with business, and since you need a supermajority to do that, the motion fails. It makes no difference whether anyone is talking or not. This is a distinction a lot of people miss, and even have a hard time grasping after you explain it to them, and I think it’s because they can’t get past the term “filibuster” itself. But what’s going on isn’t a filibuster, it’s an unprecedented willingness by the minority to prevent the Senate from conducting business. I think a new term to denote this new practice would help create better public understanding of what’s going on.

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The Point of No Return

Thursday, February 18th, 2010

I guess you could classify this as a lack of civility:

Senate Majority Leader Harry Reid (D-Nev.) lacks the votes to begin debating his targeted jobs bill, according to sources monitoring the legislation.

Reid needs 60 votes to open debate on the $15 billion jobs bill. The vote is scheduled for Monday, when lawmakers return from the Presidents Day recess.

“I understand Reid does not have the votes for cloture on Monday on his jobs bill,” one source said.
A Reid spokesman said the vote is in the hands of Republicans. Democrats have 59 senators in their conference.

What this underscores is the simple fact that whether you attribute the rise of the filibuster to a breakdown in comity amongst Senators or a rational response to systemic incentives, we’re to the point where there just isn’t any way to reasonably expect a return to the old social norms of the Senate. The minority has gotten to the point where they’re potentially willing to prevent the majority from even considering bills the majority party would like to pass, and they’re also in a position to benefit from that obstruction electorally. There may have been a time when the prevailing norm of Senate cuture was to eschew the potential rewards of blocking everything on the majority’s agenda, but those days are clearly gone. The minority recognizes that they have both the incentive and the means to keep the minority from doing anything, and they’ve decided they’re willing to excercise that ability. It’s just incredibly naive to imagine that things can go back to the way they were so long as the filibuster rule exists.

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There’s No Defending Bayh

Wednesday, February 17th, 2010

I guess I should be happy enough that Evan Bayh has decided to take the occassion of his retiring in the face of Congressional dysfunction to call out the filibuster, but like apparently everyone else I can only muster one reaction; if Bayh thinks this is so serious, why isn’t he staying around to change things? Like everything else in Bayh’s political career, it’s a nice sounding quote that makes him look serious about tackling problems, but when push comes to shove he’s just not interested in tangling himself up in the nuts and bolts of doing anything legislatively. You can say similar things about this “defense” of Bayh from Jon Alter:

I’m not sure people realize just how much the failure of health care demoralized Evan Bayh. As I learned in reporting for my upcoming book, The Promise: President Obama, Year One, out in May, White House aides David Axelrod and Jim Messina visited the Senate just before the August recess last year and left feeling much better after hearing from Bayh. He made them feel that the politics of getting reelected demanded passage of the bill, which at the time looked iffy. “We’re all screwed if you don’t get something real on health care,” Bayh told them. This made Axelrod and Messina think that the moderates would be on board.

That’s nice and all, but it leads to an obvious question: if Bayh thought healthcare reform was so important, why didn’t he stand up and fight for it? After all, the process would have been helped immensely by having someone with Bayh’s centrist credentials with the establishment press defending the effort and voicing full support for reform. Especially when the Senate was deliberating over the bill, a strong defense from Bayh actually could have made a big difference. Except, Bayh was basically silent on healthcare reform. So color me less impressed than Alter. And consider most of my impressions of Bayh reinforced; he’s a lazy, disinterested office holder who was only interested in being a legislator to the extent it helped him become President. He was never interested in doing anything with the office. Hell, his name wasn’t even on the vaunted budget commission he’s reportedly pissed didn’t clear a Senate vote. Kent Conrad and Judd Gregg did the lifting on that.

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Politics vs. Procedure

Monday, February 23rd, 2009

by Brien Jackson

Ryan Grim reports on an odd quirk that renders the “make them talk” fantasies of conducting filibusters, seemingly, irrelevant:

To get an idea of what the scene would look like on the Senate floor if Democrats tried to force Republicans to talk out a filibuster, turn on C-SPAN on any given Saturday. Hear the classical music? See the blue carpet behind the “Quorum Call” logo? That would be the resulting scene if Democrats forced a filibuster and the GOP chose not to play along.

As both Reid’s memo and Dove explain, only one Republican would need to monitor the Senate floor. If the majority party tried to move to a vote, he could simply say, “I suggest the absence of a quorum.”

Brian Beutler is a little bit skeptical:

I’ve never been a Senate parliamentarian, so take this skeptically if you’d like, but here’s what the Congressional Research Service says about the “live” quorum call:

Generally, once a quorum is established as a result of a rollcall vote or a live quorum call, the Senate must transact some business before another quorum call is in order.13 However, if the Senate dispenses with a quorum call by unanimous consent before it is completed, a Senator again may suggest the absence of a quorum without business having intervened.


Excited yet? That “13” refers to pages 1042-1046 of the behemoth manual of Senate procedure, which contains a list of actions that, via precedent, define official Senate business. That doesn’t necessarily fly in the face of Ryan’s conclusion that members of the obstructing party would never have to turn to phone books or encyclopedias to keep their filibuster going, but it certainly appears that there’d be more of an onus on them than noting the absence of a quorum over and over again.

As the blogosphere’s Official Filibuster Defender(tm), let me say that I think this sort of misses the point. From a procedural standpoint, as Hilzoy and other have noted, it’s incredibly easy to maintain a filibuster. You just need one member of the minority to hold the floor, and other members of the minority can help the process along by asking questions that can go on for an unlimited amount of time. If you have a dedicated group effort, in other words, you can just hand off the baton endlessly between speaker and questioners, unless the votes are present for cloture. That, as I understand it, is the situation in which one Senator must ramble on incessantly without so much as a bathroom break, because you can not interrupt a speaking Senator to call for a cloture vote, but in the event the Senator yields the floor, you can call for cloture and end debate. But with a dedicated minority of 41+ members, none of this would really matter. Even in the event that the speaking Senator yielded the floor, the majority could call for a motion on cloture, which would then fail.

With all of that in mind, the real point behind “make them talk” isn’t a procedural one so much as a political one. The idea being that if the minority is going to filibuster a proposal, they ought to have to do it in front of the public, on camera, looking somewhat ridiculous for the cause. That is, I think, a pretty good idea that creates political trouble for a minority filibustering a popular proposal. And the idea is that if the minority actually had to behave ridiculously on the C-Span camera, that it would change the calculation around using the filibuster to make it more costly to block genuinely popular legislation. And even if that just entails a Republican calling for a quorum call over and over, I think the effect is achieved.

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In Defense of the Filibuster Cont’d

Wednesday, February 18th, 2009

by Brien Jackson

In regards to my defense of the filibuster, Brian Beutler responds:

To get even more specific, imagine for a second that every senator from every state was up for re-election every two years, and that, in 2010, this resulted in a 51-49 split with Republicans in the majority. That would be a pretty stunning upset. But it would still almost certainly be the case that Democratic senators had received more votes in total than had Republican senators. And yet, that wouldn’t be reflected within the body itself. Republicans would be the party in charge, they would chair the committees, and gum up the government, and the Democrats would be kicking themselves for having eliminated the filibuster back in 2009.

But these sorts of unfortunate peculiarities have little to do with the origins and intent of the filibuster and everything to do with the way the authors of the Constitution designed the Senate . And because amending the Constitution is such an impossible proposition, we’re probably stuck with them. But that doesn’t mean we should rely on an extra-constitutional tool like the cloture requirement to offset those problems. As often as not, the filibuster compounds them, and until the demographics of the country undergo a sea change, it disproportionately benefits the illiberal party.

I largely agree that there’s probably little that can be done about the structural problems of the Senate, given that there isn’t likely to be a lot of public support for a radical change to our system of governing at the moment. And obviously you don’t want to compound the problem, but at the same time you don’t want to amplify it either.

I think this is a difficult discussion to have through the specific focus of the filibuster, given that particular procedure’s history and baggage. Obviously it’s not the filibuster itself I’m looking to keep, but some form of minority protections in the legislature. It’s one thing to have a majoritarian House, because in having every seat up for re-election every cycle, and being apportioned on the basis of population, we can roughly expect it’s make-up to track the broader public opinion pretty closely, even if single representative districts can, in theory, produce some odd outcomes when you have close divisions. But the Senate’s staggered terms make it as often as not that you’ll have a majority body that simply doesn’t reflect public opinion, and you need something in place to check that. Most of the time you have the other 2 legislative points, the House and the President, either one of which could be in the hands of the other party. But I think you still need something within the Senate itself for those rare times like the aftermath of 2000, or what you could hypothetically see in 2 years. The trick is figuring out how to do that without stifling the ability of legitimate legislative majorites to govern, and while I think we can do that, I certainly don’t want to pretend I have some sort of silver bullet in mind either.

It seems like something that might really be worth revisiting if the Democrats end up with more than 60 seats after 2010, when you’ll have fewer political constraints to keep in mind.

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In Defense of the Filibuster

Tuesday, February 17th, 2009

by Brien Jackson

The topic of the week seems to be the filibuster, and the general consensus amongst progressives is pretty resounding; get rid of it. Well to echo the sentiment I’ve taken to more or less everyone else’s blog, let me say that I think this view is incredibly short sighted, and a very large over reaction.

First of all, I think it’s important to understand how, exactly, the filibuster functions, or can function, in regards to the larger context of the Senate. Scott Lemieux, in comments, asked me how exactly the filibuster protected under represented minorities, and my answer was pretty simple; it doesn’t, and I’m not really sure how it could. What the filibuster can, or could, serve to do, however, is to restrain majorities who aren’t really majorities. To that end, consider this statement from Ezra Klein for a second:

Rather, I’d argue that the central question is “legitimacy.” We have a party-based electoral system that, particularly in the Senate, pushes towards a relatively even division of power. The question then becomes whether we’re more comfortable with the consequences of a system where the minority can block good policy or the majority can pass bad policy. I’d prefer the latter: The policies of politicians we voted for have more democratic legitimacy than the system’s structural preference for inaction. Elections should be about the bills passed by the majority rather than the obstructions erected by the minority.

And that’s fairly hard to argue against, if you view the partisan make up of the Senate to be a pure representation of the will of the voters. But why, exactly, you would think that I don’t really know.  Only 1/3 of the seats in the Senate are contested in any given election. At least 16 states will have no Senators on the ballot each cycle. It’s rather common for parties to lose seats, even a fairly large number of seats, in the body yet still retain control, or to suffer a fairly substantial loss in the aggregate yet come out fairly well because the other party was defending more seats that cycle. So, in that respect, you actually get majorities in the Senate that obviously don’t reflect the sentiments of the voters based on the last election.

The most picture-perfect argument for the Senate is, ironically, that old bugaboo, the 2000 election. Until Jim Jeffords bailed on the GOP, Republicans controlled the House by 9 votes, had the majority of a 50-50 Senate split based on the tiebreaking vote of the Vice-President, and, of course, had control of the White House despite getting fewer votes for the office than the Democratic candidate. Additionally, they lost seats in both houses of Congress in 2000, including 4 in the Senate. Is there any real argument that this unified government was the result of the country’s overwhelming preference for the GOP agenda? Obviously not, and in this sense preserving the ability of the minority to block the majority’s legislation represents, paradoxically, a majoritarian measure (or a counter-countermajoritarian measure if you prefer).

Now, obviously, this is an anomaly, and anomalies do not make for great precedent. With that in mind, I certainly wouldn’t argue that the filibuster is perfect, or even functioning well at the moment. The 60 vote requirement, for example, seems rather absurd to me. Maybe there was a time and a partisan atmosphere where getting 60 votes for cloture on a non-fiscal bill was fairly likely, but in the current system it seems fairly unlikely that any party, short of having 60 or more members themselves, is going to be able to garner that sort of consensus on any package that can’t be taken to the reconciliation process. But I’m not sure, at this point, that that’s an argument for eliminating the process altogether so much as it’s an argument for modifying it. I’d suggest trying a 55 vote bar for cloture instead of 60. A 55 seat majority isn’t unattainable, or even particularly unusual, but it’s also rather hard to fluke into. It also shouldn’t be terribly hard for a majority of 51-54 to find a handful of members in a relatively large minority to support cloture, at least, on legitimately popular pieces of legislation. On the other hand, having the filibuster as an option still restricts a relatively small majority that may not even acurrately reflect the will of the electorate from ramming through unpopular aspects of their agenda.

Of course, all of this only matters in the event that one party controls the House, the Senate, and the Presidency. In the event of a split at any point of the legislative process, both parties have a majoritarian stake, and can block the other party with that majority. So, in perspective, the entire debate is focused around a relatively unlikely situation in the first place.

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