If GOP wins 3 Senate seats, and Dems don't destroy filibuster, then Dems can't govern after 2010

by: Chris Bowers

Tue Nov 10, 2009 at 16:45


After eight years of Bush, and fourteen years of either Bush or a Republican Congress, the current legislative fights over health care, climate change, and stimulus spending are a breath of fresh air.  Even if the type of legislation we are achieving is inadequate to solve the scope of the problems we face in those three areas, at least progressives actually have a role in crafting legislative policy now.  That is something we haven't been able to really say since 1994.

It also won't be something that we can say after 2010, if 51 Senate Democrats don't join together to abolish the filibuster at some point between now and January, 2011.  If Republicans make a net gain of three Senate seats or more in the 2010 elections (which is pretty likely according to current polling), Democrats will simply not be able to achieve cloture on any major legislation put before the Senate.

The watered down stimulus package passed the Senate with only 61 votes.  The watered down health care and climate change bills will pass the Senate with somewhere between 60 and 62 votes.  This is a pattern we will continue to see on every major piece of legislation before the Senate, since only Maine Republicans Olympia Snowe and Susan Collins are willing to compromise with Democrats at all.  It also means that there is no hope of compromise with Republicans if they net only 3 seats in the 2010 elections.

It is possible that Mike Castle and / or Rob Simmons might be among the new Republican Senators, and that they might be willing to compromise with Democrats on major legislation.  Even so, a net loss of only three Democratic Senate seats will give Mike Castle and / or Rob Simmons effective veto power over the entire Democratic legislative agenda, much in the way that Ben Nelson, Joe Lieberman, Mary Landrieu and Olympia Snowe wield that veto power right now.

If Democrats wish to continue to govern after 2010, the only sure-fire path is for 51 Democrats to use the nuclear option to end the 60-vote culture of the Senate.

If only 51 votes are needed to pass legislation through the Senate, it would effectively be the same thing as Democrats gaining 10 seats in the Senate.  No matter what political price Senate Democrats may face for the apparent hypocrisy or partisanship of destroying the filibuster, it can simply never equal to a net Senate gain of ten seats.  We are just not going to lose ten Senate seats because we destroyed the filibuster.

Further, given the crises we face both as a country and as a species, allowing an even more conservative Republican Party to regain a veto over American policy is far, far worse than any esoteric argument about the "deliberative" tradition of the Senate.  Further, after the way Republicans have acted in 2009, if anyone still thinks that meaningful bipartisanship can be achieved on major legislation, they are living in a fantasy world.

Engaging the fight over health care, climate change, stimulus spending, and other major legislative priorities is good.  However, it is likely that this will all come to an end in only thirteen months if the 60-vote culture of the Senate remains in place.  Getting rid of the filibuster--which can be done with only 51 votes--is necessary to ensuring continued Democratic governance beyond 2010.

How it works in the extended entry

Chris Bowers :: If GOP wins 3 Senate seats, and Dems don't destroy filibuster, then Dems can't govern after 2010
How it works: For those who don't know, here is how it works:

The nuclear option is used in response to a filibuster or other dilatory tactic. A senator makes a point of order calling for an immediate vote on the measure before the body, outlining what circumstances allow for this. The presiding officer of the Senate, usually the vice president of the United States or the president pro tempore, makes a parliamentary ruling upholding the senator's point of order. The Constitution is cited at this point, since otherwise the presiding officer is bound by precedent. A supporter of the filibuster may challenge the ruling by asking, "Is the decision of the Chair to stand as the judgment of the Senate?" This is referred to as "appealing from the Chair." An opponent of the filibuster will then move to table the appeal. As tabling is non-debatable, a vote is held immediately. A simple majority decides the issue. If the appeal is successfully tabled, then the presiding officer's ruling that the filibuster is unconstitutional is thereby upheld. Thus a simple majority is able to cut off debate, and the Senate moves to a vote on the substantive issue under consideration. The effect of the nuclear option is not limited to the single question under consideration, as it would be in a cloture vote. Rather, the nuclear option effects a change in the operational rules of the Senate, so that the filibuster or dilatory tactic would thereafter be barred by the new precedent.

Any filibuster can be defeated with only 51 votes using this Senate procedure.  Anyone who remembers the 2005 fight over the nuclear option knows this.

A plan to destroy the filibuster: For those who think this campaign cannot be won, I have written up what I believe to be a plausible plan to get 51 Senators to invoke the nuclear option, and destroy the filibuster.


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unfortunately (4.00 / 1)
Our "leaders" do not think very clearly about the future. They will probably catch up to this in two years or so.

New Jersey politics at Blue Jersey.

Seems like it just ego that keeps it around (4.00 / 3)
The "60 vote" story makes all Senators feel really important, and elevates them above the House. They should just let go and admit that democracy is more important than their own egos.

I guess they probably will make some changes. I am very curious to see if Reid pushes some rules changes for the next session. Maybe start by making filibusters "real" before moving to eliminate them.

"60 votes" has been good for fundraising, but we're getting tired of that line now that we've seen it in action.

The sad fact is that politicians at all levels of government hate to actually DO things. They are often intimidated and confused by the bureaucracy around them. Most of them slip into survival mode and just worry about keeping their job and the prestige that goes with it.  

ec=-8.50 soc=-8.41   (3,967 Watts)


This was the argument in 2005 (0.00 / 0)
An appeal was made on this basis that doing away with the filibuster would dilute each Senator's clout.

Since rules are adopted in the new year after each election, it looks like the most sensible solution (having the number of votes needed to invoke cloture go down by 1-2 every week of debate, or some such maneuver) is impossible.

Hard to tell now what will happen over the next 10-12 months.  There could be deaths and/or resignations that surprise and alter the calculus.  There could be unforeseen events.  But any way you look at it, the Dems ought to be trying their best to (1) pass legislation that is going to motivate their base to vote (and that means no Stupak Amendment) and (2) recruit someone good in NC and one or two other races to widen the battlefield.

John McCain--He's not who you think he is.


[ Parent ]
Good to see you (4.00 / 1)
around. I've missed your comments.

(Sorry for the OT ...)


[ Parent ]
This is probably more of a fantasy... (0.00 / 0)
Than achieving any kind of meaningful bipartisanship, sorry to say.

I didn't say it was likely to happen (4.00 / 4)
I just said it was necessary.

And I think we both agree that just because something is necessary for the planet, country or party is not a reason that Democrats will actually do it.


[ Parent ]
Also, we need to discuss what is necessary (4.00 / 2)
despite whether it is possible, because talking about the impossible is the only way to make it possible.  

Politics is the art of the possible, but that means you have to think about changing what is possible, not that you have to accept it in perpetuity.

[ Parent ]
Perhaps... (4.00 / 1)
Just thinking maybe we should try to figure out how to prevent the loss of seats, or even gain seats, rather than hoping for something that will almost definitely never happen.  I mean, it honestly wasn't even that long ago when it looked like Democrats could actually net 3-5 more seats.

And actually, the chances of this happen probably INCREASE if Democrats lose seats, because Democrats won't be able to do jack shit as long as Republicans remain as stubborn as they have been.

That being said, there's of course the constant battle of whether we try to defend seats that are basically hurting us anyway... Reid and Lincoln spring to mind, though if Reid actually manages to push through the PO in the Senate, progressives may have to forgive him for his other inadequacies.  We'll see I guess.


[ Parent ]
got to start this fight sometime (0.00 / 0)
We have to start this fight sometime. If no one does, we will never build a critical mass of support to destroy the filibuster. And until it is destroyed, progressive governance really isn't possible in America.

It is a long-term fight, yes. Hell, it will probably take a Republican majority in the Senate to eliminate the filibuster. Still, we need to make it happen.


[ Parent ]
I was going to say... (0.00 / 0)
It will probably take Republicans to do it... and when they do we probably won't want them to, as it'll be to destroy Social Security, rollback any Health Care we manage to get through now, lower taxes for the rich and who knows what other crazy shit by the time they do (Prayer in schools perhaps?  We're talking about Palinites basically running the government).  Urging the end of the filibuster will be an extremely bitter pill to swallow then, which is why I'm actually still on the fence about it now... Yeah, the Senate is undemocratic, but at the same time I don't want unfettered Conservative dominance either... and no, while the Republicans managed to screw up quite a bit when they had control in the last 8 years, I don't think it was at all as unfettered as a filibuster-less Senate would have been.  We'd probably be mourning the loss of Social Security today had the Senate gone Nuclear.

[ Parent ]
what about 20 years from now (4.00 / 2)
when centrist/progressive democrats have the majority and are the ones wielding all the power.  at that point, the structural change works to our benefit.

more relevantly, any measure that increases the efficacy of government action makes it possible to boost confidence in the capacity of the government.  it doesn't make it inevitable, but it does make it (more) possible.  on the other hand, supporting the kind of obstructionism that is built into the american political system allows the intensely destructive politics that the republcian party uses.


[ Parent ]
It was lowered from 67 to 60 (4.00 / 2)
When there were still GOP moderates in the Senate.  They no longer exist and it is much more partisan.  I'd say we need better candidates in a few places and a new leader.  There needs to be a way to open that institution up.  The current crop of candidates isn't very progressive, and too many of our marginally good ones like Dodd are in danger.  

John McCain--He's not who you think he is.

[ Parent ]
Boys, I think the party's over in January.. (0.00 / 0)
According to overall comments among the top blogs:

1.  The PO sucks.
2.  Jim Cramer of Mad Money is recommending viewers to start buying Wellpoint, because the 'Pelosi bill' sucks.
3.  Others are also saying the underlying bill sucks because of so little insurance reform.
4.  The ball is in Harry's court now.  The Harry who first predicted it might not get done till next March - pre Stupak.

With a bill this far from being either good or complete and knowing that shit always happens to every good Democratic plan, if it isn't done before the Christmas recess - our goose is so toasted.

Nationalism is not the same thing as terrorism, and an adversary is not the same thing as an enemy.


[ Parent ]
Update on Harry's health/insurance reform bill strategy.. (4.00 / 1)
He called in Bill Clinton.
Who recommended "It's not important to be perfect here".

We are so fu**ed.

Nationalism is not the same thing as terrorism, and an adversary is not the same thing as an enemy.

[ Parent ]
why is it a fantasy? (4.00 / 1)
a fantasy would imply that it's never possible.  if you set the appropriate timescale (2 years?  5 years? 10 years?) why is this intrinsically impossible?  If anything, given how undemocratic the composition of the Senate is to begin with and the historical trend (from allowing 1 senator to obstruct to now requiring 40), it seems pretty inevitable.

[ Parent ]
only if health care reform fails (0.00 / 0)
Only a gigantic legislative disaster or defeat can build momentum for that kind of fundamental change. The anger and frustration strong enough to precipitate serious discussions of the nuclear option to destroy filibuster can only come from something like the complete failure of health care reform due to the Senate filibuster.  

[ Parent ]
As opposed to how well they govern now. (4.00 / 2)
California (4.00 / 3)
There is a reason most Californians think the state's best days are past.  They have gone down the route with Proposition 13, 2/3 needed to pass a budget, etc.  The 60 Rule with the non-fillibuster fillibuster is a long step towards doing to the US what the anti-taxers have done to California.

Has it worked?  No.  Taxes for those pre-dating 13 have been frozen but new comers have been soaked.  And are leaving.  The schools, once the best in the world, are now middle-of-the-pack.  The state is unable to handle any of the large problems facing it.

I can't repeat often enough.  The present rules are not only new but shockingly new and they clearly don't work.  Scrap em if if it means nuking them.


How? (0.00 / 0)
     Chris, I don't see how it could be undone with 51 votes. It's in the senate rules, and they've already been adopted for this Congress. A move to amend them would be subject to a filibuster, and I don't think prima donnas like Lieberman or Ben Nelson would marginalize themselves by voting for cloture.
    I wish it were possible, but I think there will always be a DINO senators who see themselves as being empowered by the 60-vote requirement. If Lieberman, Ben Nelson, and Lincoln were all replaced by good Democrats, we'd still have Bayh and Landrieu and Conrad to deal with.
    What we could do is to have the Caucus take control of all committee assignments, and make it clear that any Democrat whose vote against cloture kills a bill which 51 Democrats support will never be approved to be Chairman or Ranking Member of a committee.

Updated (4.00 / 1)
Figured some people would want to know the process, so I posted an update with the answer.

Any filibuster can be defeated with 51 votes. In fact, the filibuster can be destroyed forever with only 51 votes. We should have let Republicans do it back in 2005.


[ Parent ]
as I recall (4.00 / 2)
There were a few sage voices back then that argued for precisely that, figuring a few more wingnut judges was well worth the price of making Republicans undo the least defensible anti-democratic feature of the US government.

It is no surprise to me that Lieberman and the "gang of 14" rose to save the filibuster - losing it would be a crippling blow to the power of individual senators.  


[ Parent ]
We could change the rules at the beginning of the next session (0.00 / 0)
Maybe not take away the filibuster altogether, but modify it so that it'll be incumbent upon the filibustering party to sustain it.

It'll help if we make the filibuster an actual campaign issue this year as well.


[ Parent ]
Don't need to to wait until then (0.00 / 0)
Any filibuster can be defeated, now, with only 51 votes.

[ Parent ]
You're not going to find 51 votes to change the rules mid-session (0.00 / 0)
I'm sorry to say.

[ Parent ]
You never have the votes (4.00 / 1)
until you do. And you'll never have the votes if you decide not to fight.  I'd rather try it and see rather than preemptively fold. What's more, the fight for this would be valuable even if it doesn't work.  People like democracy, they are not fans of the use of parliamentary procedure to avoid accountability, but they may not realize how present rules empower Republicans despite their small minority.

Politics is the art of the possible, but that means you have to think about changing what is possible, not that you have to accept it in perpetuity.

[ Parent ]
Biden Ain't Cheney (0.00 / 0)
    Has what you outline ever actually happened?
    Cheney was willing to make a ruling at obvious odds with the Senate's rules, because he cared about nothing but power. But I doubt that Biden, a senator for 36 years, would go along with such a thing. And I'm certain that Sen. Byrd, the President pro tempore, would not.
    If it could be accomplished, great. It would remove a huge barrier to a functioning democracy. But, again, there are Democrats who wield far more power now than they would if the filibuster were eliminated, and they would join Byrd, Inouye, and others who love the Senate rules more than they love democracy in voting to overturn the ruling of the chair.  

[ Parent ]
and this is exactly why we need more populists (0.00 / 0)
and people who believe in democracy as rule by the people, not rule by the traditions of government as they stand, to substitute for rule by the people.

[ Parent ]
"We" unfortunately aren't in charge (0.00 / 0)
The Senate sets its own rules, and they seem to like it.  We need better Senators.

That said, it is worth a try.

John McCain--He's not who you think he is.


[ Parent ]
Any chance for a more moderate solution? (0.00 / 0)
Namely decrease the number of votes to override a filibuster down to 55?

Would that be any easier for the overly cautious Dems to swallow?


That is actually more difficult (0.00 / 0)
The filibuster can be destroyed with 51 votes.

However, to just change it would require 67.


[ Parent ]
Walk me through it (4.00 / 1)
Everything about the Senate is conservative: the 2 per state basis of representation, the collegial folkways, the 60 vote cloture, the six year term - you name it.

Senators are a bunch of satisficers with loads of patience. The Senate is designed as an incumbents mutual aid society - a bit of boat-rocking from time to time is all part of the hoopla, but even a rebel like Feingold tends to be frugal with his demonstrations of independence.

The Dem Senate party is more conservative that the GOP in that the Dems got used decades of Senate control, sometimes with big margins, whereas the GOP period of on-and-off control since 1994 never gave them much margin to play with: aggression and unity were easier to achieve for the GOP.

But even the GOP never went nuclear, even just for judges. Partly, no doubt, that was a fear of what would happen when the Dems took control. But mostly, I think, because the wrench with entrenched ways was too hard to contemplate.  

Under Uncle Harry, the Dems have been the model of caution; they have given zero sign of the kind of risk-seeking mindset required to contemplate going nuclear, let alone following through.

I can see myself being convinced that the Dems going nuclear is the right thing to do. I just can't see how we get from here to there.


Yeah, I think this issue is v. important to raise, (4.00 / 1)
but I'm not sure that 51 Democratic senators believe that governing after 2010 is more important than the mood in the senatorial cloakroom.

[ Parent ]
Really, (4.00 / 1)
Just requiring that Senators talk continuously to maintain a filibuster would make me happy.  It would force them to go front and center to justify their stupidity.  It would make it harder to sustain, also, which would help things out enormously.  

If the filibuster were pushed back to historical norms rather than the absurd filibuster abuse the republicans have shown over the past few years, I wouldn't mind it anywhere near as much as I mind it now.  


I agree (0.00 / 0)
Or, as some here have suggested, change the filibuster so that the burden of sustaining it falls on the 41 filibusterers instead of the 60 who are trying to pass cloture.

The beauty of these compromises is that in preserving the filibuster, it denies the centrists like Ben Nelson and such (who will be the first to speak out against any changes in Senate rules) to cry and moan that their rights are being taken away, since the filibuster will still be there.  Thus, they'll have to admit that their real complaint is that they're too lazy and opportunistic to want to have to sustain a real filibuster.

Plus, I'm not ready to endorse the complete abolition of the filibuster.


[ Parent ]
Really? (4.00 / 1)
The beauty of these compromises is that in preserving the filibuster, it denies the centrists like Ben Nelson and such (who will be the first to speak out against any changes in Senate rules) to cry and moan that their rights are being taken away, since the filibuster will still be there.  Thus, they'll have to admit that their real complaint is that they're too lazy and opportunistic to want to have to sustain a real filibuster.

Are you assuming that people like Ben Nelson only make claims when there is some factual basis for them or that if he makes non-fact based claims, other Democrats or the corporate media will call him on it?

Either way, I'd say recent history shows that this is not the case.

Politics is the art of the possible, but that means you have to think about changing what is possible, not that you have to accept it in perpetuity.


[ Parent ]
I agree (0.00 / 0)
so we'll have to call him on it.  How effective that will be, I dunno.  If we make the filibuster itself a campaign issue in 2012 it could potentially be disastrous for people like Nelson and Lieberman.

[ Parent ]
i'm not sure which position you were arguing (0.00 / 0)
but "disastrous...for Lieberman" caught my eye.  Whichever thing woudl be that, I fully support.

[ Parent ]
What I'm saying is that the filibuster itself should be made a campaign issue (4.00 / 1)
Lieberman's already gonna be in trouble due to his threat to filibuster HCR.  His opponent can ask him, on TV, "do you think you should have the right, through the filibuster, to subvert democracy by preventing what a majority in the Senate and in the country want?"  And we can sit back and watch him flail away.

[ Parent ]
Get rid of the Cloture rules, not the filibuster (4.00 / 4)
It used to be that you had to actually filibuster -- take and hold the floor -- to obstruct a simple majority. Yielding the floor and ceasing debate allowed the simple majority to act. The problem we have is it now takes 60 votes to allow the majority to act and those who seek to obstruct are no longer required to hold the floor.

In short, unlimited debate and the filibuster is not the problem. The 60 vote cloture rule is the problem we need to be rid of.

...Adding, since it's unlikely the cloture rules will be overturned the only practical way dis-enable those who delay from hiding behind the cloture rules is to force them to continue debating. IOW, pick an issue of high importance and public approval, and keep it on the floor for as long as it takes to get a vote.

...Adding x2, think about the lesson of Stupak's taunt of the progressives. The reason they succeeded is they didn't 'cry wolf' on every last thing and they demonstrated they could and would carry out the threat. The cloture rules in the Senate negate all of that -- they can 'cry wolf' with impunity and never have to actually carry out an actual, real filibuster. That must change.

Self-refuting Christine O'Donnell is proof monkeys are still evolving into humans


How do we change that rule? (4.00 / 1)


[ Parent ]
while i agree that this would be a net good (0.00 / 0)
it presupposes some kind of passion or belief from dozens of Democratic Senators that I don't think exists yet.  I think you are right to try to create it, though.  kudos.

The election is less than 12 months away (0.00 / 0)
this will really be a logistical test of Progressives.

Can Progressives, the head and nerves of the left, get the minorities, young, poor etc. -- the body of the left -- to actually vote?

If the head cannot animate the body, we have a problem.


They can't govern now (0.00 / 0)
So what's the difference?

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