How we can destroy the filibuster

by: Chris Bowers

Tue Nov 10, 2009 at 18:23


For months, I have been calling for the complete elimination of the filibuster in the Senate.  Many Open Left commenters have agreed upon the need and desirability for its elimination, but one question remains: is there any realistic hope of rounding up 51 Democratic Senators to actually destroy it?

I have been thinking about this for a while, and I do actually have a realistic action plan to make it happen.  It contains four steps:

  1. Build an activist base.  The first step is to build a base of progressive activists who support eliminating the filibuster. This is done by making the case about how the filibuster prevents progressive governance in America.

  2. Public education campaign through calling bullshit.  The next step is to use the activist base to engage in a public education campaign.  This effort will be centered on calling "bullshit" whenever a member of Congress or the media claims that 60 votes are needed to pass legislation in the Senate.  We use emails and phone calls to those pundits, reporters and members of Congress to make them admit that 60 votes are not actually needed, given the nuclear option.

  3. Get other progressive blogs and organizations to support the campaign.  As the public education campaign continues, we work to gather endorsements to eliminating the filibuster from as many progressive organizations as possible.

  4. Get seven Democrats in the Senate to support eliminating the filibuster, even when Republicans are in the majority. The fourth and final step will be to gather public commitments from seven Democratic Senators to support the elimination of the filibuster through the nuclear option, even if the push to eliminate it comes when Republicans are in the majority.
As soon as step for is achieved, the campaign will be won. This because a public commitment from seven Democratic Senators guarantees that the filibuster will be destroyed once Republicans retake the Senate, which will happen eventually.

Back in 2005, Republicans had up to 48 Senators in favor of destroying the filibuster for judicial nominees.  In the end, they were only denied by the defection of seven Republicans who helped form "the Gang of 14."  If we can secure seven Democratic Senators who support eliminating the filibuster, once they are in the majority, Republicans cannot be stopped by such a gang ever again.  Hell, it is pretty unlikely that there would even be seven defecting Republicans Senators next time around, given that the party is in the midst of successfully purging any member of Congress with even a whiff of moderation about them.

Once we have seven Democratic Senators in support, they will collectively present a letter to the entire Democratic Senate caucus stating "either destroy the filibuster now, or see it destroyed when Republicans are in charge."  At that point, I would hope that Democrats would respond by destroying the filibuster while they still have a majority.  However, if we have to wait until Republicans are in charge, so be it.  Either way, we can nuke it with only seven Democratic Senators in support.

So, that's how we win the campaign.  It may very well require Republicans winning back the Senate, but over the long-term it is necessary for progressive governance.

Chris Bowers :: How we can destroy the filibuster

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Unconstitutional (4.00 / 1)
I think it is very important to make people realize that the filibuster as currently used is unconstitutional.  The Constitution is quite specific when anything other than a simple majority is required.  In fact, the current belief that 60 votes are required directly contradicts the Vice President's role to break ties.

Could we get any Constitutional lawyers on our side?


The Constitution does say the Senate can make it own rules (4.00 / 3)
So I'm not sure it is a clear-cut case.

One thing is for sure: the Constitution does not mandate that the Senate have a 60-vote rule. They just made that up to increase their own power--and people really hate it when politicians are fighting for their own power.


[ Parent ]
IIRC, SCOTUS has declined to review all questions related to (0.00 / 0)
House and Senate rules.  Separation of powers thing.

[ Parent ]
Of course (0.00 / 0)
The Supreme Court would never get involved.  But that doesn't change the Constitutional issue.

It is also important from a procedural standpoint.  From Chris' description:

The Constitution is cited at this point, since otherwise the presiding officer is bound by precedent.

If you are going to abolish the filibuster this way, you want a Constitutional argument to go along with it.


[ Parent ]
Use those teabag Constitutions against them. (4.00 / 1)
I think the Constitution is a great angle.  Just begin a public relations blitz that emphasizes that those inviolate Founding Fathers never said anything about 60 votes.  While the nuance you speak of is certainly there, when has the other side ever been able to see nuance?  Make the Constitution central in the push to end the filibuster.

[ Parent ]
I'm in on #1 (4.00 / 1)
And ready to do my part with #2 and #3.

West Virginians have a special place in this cause as Sen. Byrd plays a pivotal role in the history of the filibuster.

I'll promote the heck out of anything posted to WVaBlue.com on this cause.

They call me Clem, Clem Guttata. Come visit wild, wonderful West Virginia Blue


Elect Liberals Who Promise to Be Bigger Assholes Than Tom Coburn (0.00 / 0)
And get a bloc of Senators who will filibuster often just to be annoying.

Consider that the reason the Senate even adopted a cloture rule in the first place was because Bob LaFollette, once the Senate record-holder for longest filibuster, pissed off Woodrow Wilson by successfully blocking a bill to arm merchant ships during World War I.

The most effective way would be to get a group of progressive Senators who will agree to join every Republican filibuster under the filibuster rule is undone, even if Republicans are blocking things that Senators support.  For example, if Obama nominates a super-liberal who the netroots just love to fill the next Supreme Court vacancy, the progressive group would still join an attempted Republican filibuster.

Basically, they have to prioritize destroying the filibuster over getting actual legislation done and just abuse the process until people are sick of it.


Things You Don't Talk About in Polite Company: Religion, Politics, the Occasional Intersection of Both


Well Hell! (0.00 / 0)
"And get a bloc of Senators who will filibuster often just to be annoying."

In that case, we've already got Joe Lieberman! One down, six to go!!

Join the fight to give students a real voice on campus: Forstudentpower.org.


[ Parent ]
Lieberman's not always a reliable filibuster vote (0.00 / 0)
For example, he voted for cloture on the 2005 bankruptcy bill, which made it harder for families struggling under debt to get financial relief.

[ Parent ]
I don't consider Lieberman (0.00 / 0)
To be a liberal.

Things You Don't Talk About in Polite Company: Religion, Politics, the Occasional Intersection of Both

[ Parent ]
Agreed (0.00 / 0)
Back in 2005, Republicans had up to 48 Senators in favor of destroying the filibuster for judicial nominees.  In the end, they were only denied by the defection of seven Republicans who helped form "the Gang of 14."  If we can secure seven Democratic Senators who support eliminating the filibuster, once they are in the majority, Republicans cannot be stopped by such a gang ever again.  Hell, it is pretty unlikely that there would even be seven defecting Republicans Senators next time around, given that the party is in the midst of successfully purging any member of Congress with even a whiff of moderation about them.

The push back from activists will be that judicial nominations are too important, and that its better to leave the filibuster in place to prevent bad judges from being appointed to the bench.  The problem with that position is:

1) We get plenty of bad judges as it is.

2) Democratic Senators tell us that the key to avoiding bad judges is the filibuster, whereas if that excuse was taken away, we would be forced to fight bad judges on the merits, which would actually improve things.

3) Judicial power is largely a product of larger political dynamics.  Bad judges do so much damage because conservatives are empowered, even now, with large Democratic majorities.  More progressive governance would limit the damage of bad judges and encourage more progressive stances by the judiciary.

I'd add that this campaign should be waged at the same time as a campaign for progressives to push for more progressive law. (Obviously, this a more diffuse thing to push for, but its not unrelated.) Democrats are making very little in the way of strong arguments for what we believe when it comes to law, the Constitution, and the courts.  Steps 1, 2 and 3 for that would be quite similar to the ones you outlined for the filibuster.  In fact, in both cases we would be arguing for popular accountability, so there would be a strong resonance between them.

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.


I think that judges with lifetime appointments should still be filibusterable (0.00 / 0)
under the reasoning that laws can always be reversed, but judges, once they're in, are there for life.

[ Parent ]
There isn't any way to end the filibuster (0.00 / 0)
but keep it for some instances, unless you can muster 60 votes for it.  Unfortunately, we have to choose. I choose ending it.

Again, I think its easy to overestimate the importance of who gets chosen to sit on the bench, as opposed to the importance of the political context in which the judiciary operates.  And the filibuster has not stopped many terrible judges, while serious mobilization could stop (and has stopped) bad judges. One reason we don't mobilize is because we (wrongly, in my mind) think the filibuster is effective.

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 ]
Wait, what? (0.00 / 0)
There isn't any way to end the filibuster but keep it for some instances, unless you can muster 60 votes for it.

Can't the Senate just write the rules so that filibusters are allowed only for judicial confirmations?


[ Parent ]
combustible pants (4.00 / 1)
Democratic Senators tell us that the key to avoiding bad judges is the filibuster

Which they never actually use because it would be Unseemly.

not everything worth doing is profitable. not everything profitable is worth doing.


[ Parent ]
a non-nuclear option would be to pass a bill (0.00 / 0)
abolishing the filibuster at some time in the future, say 2020.  There's no knowing who will control the senate then, so some Republicans might sign on (are 67 needed for a rules change?).  Of course, this doesn't help us now, but it would be a longer-term strategy that could work.  

Robert Caro's "Master of the Senate" (4.00 / 1)
It is a doorstopper but for anyone interested in how the Senate has evolved and even how it might change, I can't recommend Robert Caro's book The Master of The Senate highly enough.  It is more about the Senate, and the filibuster than it is about Lyndon Johnson, in fact Johnson hardly appears until page 200 or so.  I read it a few years ago when I had the flu or something, and it was the best book I had read in years.

One thing I took from the book is just how much the Senate is a club as opposed to a representative body.  I don't think they will ever make any changes that reduce the power of individual Senators.  Of course, they did, ultimately agree to direct election rather than appointment by state legislatures so perhaps there is hope for democratic change.  If they ever do abolish the filibuster it would take extraordinary and powerful leadership over many years and that I certainly don't see on the horizon.


Or it will take a minority that really pisses people off (0.00 / 0)
Southern Senators gave in and allowed some civil rights legislation to be brought to the floor precisely because they feared that filibustering would piss enough people off that they would lose that power completely.

The best way to use the filibuster to piss people off to the point of getting a lot of people against it is probably to use the filibuster is to play games with soldiers' lives and hamper and cripple the US military, especially in a time of war or perceived impending war.  I'm all for some progressive Senators being dicks and blocking sending body armor to troops in Afghanistan to make a point about the filibuster.

Things You Don't Talk About in Polite Company: Religion, Politics, the Occasional Intersection of Both


[ Parent ]
Christ, what do you think about the 'change (0.00 / 0)
the cloture rules' suggestions in the previous diary?

I'm pretty small-c conservative, I guess, and eliminating the filibuster makes me viscerally nervous.


Um, I didn't mean to promote Bowers quite (4.00 / 1)
that much.

[ Parent ]
Sign me up, but.. (0.00 / 0)
Another approach would be to make the end of the filibuster about something. I think the voters don't care about these procedural issues very much, but they do care about what could be interpreted as naked power grabs. If there was a filibuster of a major piece of popular legislation, then you might be able to get enough political cover to do it. In the absence of a concrete issue, it makes it much more difficult.  

I would say simply copy the (0.00 / 0)
Harkin/Liberman proposal, don't eliminate the fillibuster entirely, just  no longer make it an instrument for the promotion of President Ben Nelson.

But whatever way we tackle this Senate rules regarding cloture motions need serious reform and the progressive movement needs to make it a top priority just as the turn of the century progressive movement pushed hard for direct election of Senators.

It will be tough but we need to start getting organized around it.  

John McCain: Beacuse lobbyists should have more power


absolutely (4.00 / 1)
people just have no idea how this has changed in recent years. everyone in DC acts like we've always needed a supermajority to pass anything. we have always caucused with Oceania.

i'd like to see some people from the House get into this as well. the Senate's little clubhouse rules effectively neuter the actually representative legislative chamber. they should be bitching up the skies about that. (i know why not, but surely there are a few people who don't give a damn about playing nice.)

it should be a constant refrain, being brought up as part of talking about every relevant issue on every news show and media appearance. majority rule. up or down votes. america held hostage.

there will be objections about protecting minority viewpoints from the Tyranny of the Majority. that's a legitimate point and we will need to think through a response in advance. i can't come up with one because that's where i keep getting stuck my own self. that maybe if we just make it more difficult, more conscious and real-time... in the end i doubt any tweaks like that would be sufficient. we just have to trade in our completely-broken system for a crappy-but-somewhat-functional one.

not everything worth doing is profitable. not everything profitable is worth doing.


How did the Senate change the filibuster limit (4.00 / 1)
to 60 votes back in 1975?  If you look at the US Senate website, they have a short history of the filibuster.  It said the cloture was invented in 1917 and instituted in 1919.  Before that, you couldn't stop a filibuster!  They first had it at 2/3 and then changed to 60 back in 1975.  Again, it's over at the US Senate website.  I'm wondering how they were able to change it.  1975 isn't that long ago.  

Also, Ezra Klein's blog linked to a Huffpo's Sam Stein who reported that Joe Lieberman actually proposed a change to the filibuster rule back in the early 90s.  Here's what Ezra says about Lieberman's proposed rule change:

The speaker there is Sen. Joe Lieberman. The quote is from 1994. And Lieberman's solution was pretty clever. As Stein explains it, "The Senate would still need 60 votes on the first motion to end debate, (the cloture vote). But the next motion would require just 57 votes, the third motion 54 votes, and the fourth and final effort would need just 51 votes -- a simple majority. In all, roughly 25 days would elapse between the first and fourth vote." In that way, the filibuster would still extend debate and ensure that minority viewpoints were heard. But it would no longer mean that minority viewpoints could obstruct.

That's from Ezra's blog entry titled, "Joe Lieberman in 1994: 'The abuse of the filibuster is bipartisan so it's demise should be bipartisan as well'"

I read somewhere that the Senate can change rules at the start of every Congressional session (as well as during a session but that requires a supermajority of 2/3 I think).  I don't know by how much they can change the rules at the start of a Congressional session but it's worth looking into.  

   


How they changed in 1975 (4.00 / 1)
Southern conservative Democrat James Allen was filibustering to block campaign finance reform.  Liberal Democrats like Walter Mondale opposed him.  Vice-President Nelson Rockfeller sided with the liberals.  The Senate leadership, wishing to preserve the filibuster and keep Rockefeller from using the "nuclear option" advocated by Chris Bowers, negotiated a change in cloture from 2/3 of members present and voting to 3/5 of all members.

If Democrats threatened to go nuclear, the compromise may be an adjustment to 3/5 of members present and voting.

Things You Don't Talk About in Polite Company: Religion, Politics, the Occasional Intersection of Both


[ Parent ]
An Alternative Strategy (0.00 / 0)
Let me just state at the outset that I am 100% on board with the proposition that we need to get rid of the filibuster. It is a huge structural barrier to effective governance and represents a slap in the face to the notion of democracy.

That being said, sacrificing Democratic control of the Senate to get rid of the filibuster is a strategic mistake and will be a difficult sell to activists. It's also important to understand how difficult it is to get the public interested in procedural issues, much less constitutional ones. I think that a smarter strategy would be trying to elect leadership in the Senate that makes elimination of the filibuster a top priority. If the Democratic leadership makes getting rid of the filibuster a top priority, it's much more likely to actually happen than if they oppose or are ambivalent about the idea.

What's great is that we actually have an opportunity to get the leadership's attention right now, since Harry Reid is up for re-election in 2010 and is extremely vulnerable. Here's the deal progressives should make Harry Reid: "Kill the filibuster before the August recess or progressives throw our support to your Republican opponent in November 2010 and ensure you are defeated." If we go this route, we should also lobby Schumer and Durbin to get them to commit to ending the filibuster should Harry Reid be defeated. The truth is that if Harry Reid isn't willing to whip the caucus into voting to eliminate the filibuster then we're actually better off without him in the leadership. By focusing on one specific race, you nationalize an otherwise local campaign and allow progressives to concentrate their fire on a single target. If progressives mobilize against Reid, he will be an easy target for Republicans.

You might think that this strategy places too much emphasis on one person who doesn't have the power to fix what we want changed. But that isn't the case. The leadership should have an extraordinary amount of power over the caucus. If they are unwilling or unable to use that power to further progressive goals, then isn't that in itself a sign that we need new leadership. Isn't caucus discipline one of the things progressives are fighting for right now? Focusing our efforts on 1) Reid's Senate leadership, 2) the filibuster as an obstruction to progressive goals, and 3) the question of caucus discipline brings together three disparate arguments into an interconnected narrative that has great potential to mobilize progressives.

What do you all think?


How about making the Senators actually filibuster (4.00 / 3)
i.e. spend day and night debating what they think the majority should not be allowed to do.

That is actually good for a republic to have passionate debate over a lengthy period of time which may actually give activists time to rally the somnolent populace.

If they don't have the passion to actually filibuster, they allow an up-or-down vote and we move on.

Now it's just to easy.


PERFECT (0.00 / 0)
I was just about to write a post about this.  Filibusters are self-limiting, because while the minority can obstruct legislation, this "minority power" comes at a significant political cost.

No one likes to see their senator reading names out of the phone book all day.  Even if you agree with the cause, it looks bad.  With 24 hour news coverage, this would be impossible to survive.  In the health care debate, with a majority of Americans wanting reform and many feeling desperate for help, for a minority of senators to obstruct a vote by delay tactics would be very costly politically.  

An actual forced filibuster would be a showcase for how the GOP is out of touch with American voters, and I doubt that many would have the courage to actually sustain a filibuster for more than a day or two.  

Replacing the filibuster with the politically convenient "threat of filibuster" was a catastrophe for political dialogue and process in this country.  We need leaders in the senate who are willing to play some hardball with the obstructing minority.  

Harry Reid is exactly the wrong person to lead this effort.  His own little mini-buster was announced ahead of time, and purposely presented as a gimmick.  I don't know what his plan was, but he just ended up looking weak and stupid.  


[ Parent ]
Not so fast (0.00 / 0)
The idea sure sounds tempting but it isn't that simple.

First, a determined and large enough minority can filibuster pretty much forever. During a filibuster, a Senator with the floor can yield for a question without losing the floor. The question must be asked within (wait for it) 20 minutes. A 20-minute question. Certainly enough time for me to sit down, relax, have a glass of water, and re-group for the next speech I want to give. And if I want another break, I'll have another Senator ask me another 20-minute question. Rinse, repeat.

Second, Democrats (or those who want to end the filibuster) must maintain a majority within arm's length of the chamber for the entire length of the filibuster session. Why? Because, at any time, a Senator with the floor can "Move to Direct the Sergeant-at-Arms to Request the Attendance of Absent Senators." This is a live quorum call (quite unlike those you see normally on CSPAN2) and the yeas and nays can be demanded by just 1/5 of the Senators present. If at least 51 Senators fail to vote on the motion, then the Senate has demonstrated no quorum -- and, thus, the Senate  cannot conduct any business (including debate) until a quorum is re-established by the votes of 51 Senators. If Democrats don't keep a majority around to stop a procedural vote like this, then the GOP can re-group and wait it out while CSPAN2 plays classical music and the entire country tries to explain what is happening.

And that's not the only motion a Senator can make. Any Senator with the floor can move to adjourn the Senate, even though that motion is typically the prerogative of Majority Leader. Any Senator can "suggest the presence of absent Senators" in the typical quorum call format...even this action requires either unanimous consent to lift the quorum call OR the presence of 51 Senators responding to their names. So more procedural problems.

And do we think that, even when they are forced to debate a measure currently on the floor, Republicans are going to be stupid enough to read the phone book? Of course they know how that will play. So they'll print out longer copies of their right-wing talking points and demagogue the bill to cloud the issue. And what if we want to respond? Well then we're just as guilty for wanting to debate the measure, too.

I understand, sympathize, and appreciate the drama that "forcing them to filibuster" signifies. Bringing out the cots into the Senate, giving the entire country a lesson on parliamentary procedure in all its glory, and forcing the GOP to defend to the country their position...it all sounds great. But the rules don't just allow us to leave the chamber and leave the Republicans to collapse on their own...we need to sit there and maintain a majority of Senators for the entire duration -- and watch precious legislative floor time tick away.

I might write a longer comment on the ideas of killing the filibuster being proposed on this blog...but this idea that we can just flick a switch and "force them" to filibuster -- without causing our Caucus significant pain, too -- is hogwash. It's not that simple.


[ Parent ]
sometimes politics is work (0.00 / 0)
I dont have sympathy for the Democratic party if they are unwilling to muster the resolve that real change will require.

then the GOP can re-group and wait it out while CSPAN2 plays classical music and the entire country tries to explain what is happening.

Yeah. so whats the problem with this.. we explain they are being obstructionists.   Last filibuster that I acutally remember was by Al D'Amato, that's how long it has been; he was well know for his filibusters, and his loss in 1998 was probably due in part to his public game-playing on the senate floor.  

Filibusters look petty and whiny and a desperate tactic of a loser.  Newt Gingrich's arrogant pettiness in 1995 guaranteed a Clinton re-election in 1996.  

If your argument is that the Dems are not committed enough to face down a filibuster, I say fuck that.. that is their job.  They cant handle it, they should looking into a new line of work.


[ Parent ]
Spot on! (0.00 / 0)
But the myth of the real filibuster is a blankie that quite a few Kossacks, at least, would fight to hold onto, I'm thinking!  

[ Parent ]
The problem is the Senate two-track system (0.00 / 0)
In the '70s, Senate Majority Leader Mike Mansfield came up with a system where different business was taken up in the morning and afternoon, so a filibuster could run in the morning and other legislation considered later in the day.  Mansfield basically took away the threat of a filibuster to shut down the Senate at the price of making filibusters much easier to maintain.

Things You Don't Talk About in Polite Company: Religion, Politics, the Occasional Intersection of Both

[ Parent ]
Here's the problem (0.00 / 0)
We will never legislate our way out of a paper sack unless we can do something about the disgustingly undemocratic nature of the U.S. Senate.

However, what justice demands is that debate and legislation not be blocked by Senators representing a minority of the U.S. population.

This is why progressives who want the filibuster gone in this environment, but fear its absence in a Republican majority are not applying a double standard -- under a Republican majority, the 50 votes passing evil laws (no filibuster) could represent a small minority of the population, and the 38 votes trying and failing to stop it (even with the filibuster) could represent the majority.

I'm afraid there's not an obvious solution to this more profound problem.


Damn straight! - this is the basic problem (0.00 / 0)
The Senate is undemocratic - and it's not a bug, it's a feature.

Chances of any change to the basis of representation: zero.

It's Civics 101 - but a fact too horrible for most lefties to confront, apparently.


Meant to be reply to tdub! (n/t) (0.00 / 0)


[ Parent ]
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