Serious question

by: Chris Bowers

Fri Jul 30, 2010 at 13:00


Does anyone here think that working to stop GOP from destroying the filibuster in 2005 was still a good idea?

Wasn't that a mistake? Shouldn't we have helped them instead?

Discuss.

Taking the bait: OK, fine, I'll bit at BTD's latest diatribe against me:

Chris Bowers asks "Does anyone here think that working to stop GOP from destroying the filibuster in 2005 was still a good idea?"

The first problem with this question is that the GOP did not try to destroy the filibuster - they tried to destroy the judicial filibuster, arguing that it violated the Constitution. They would not have touched the legislative filibuster.

Point! Which many have noted in the comments.

However:

The second problem with this question is Bowers not imagining what a GOP President and GOP Congress would have achieved with the elimination of the filibuster. You thought the actual Bush tax cuts were bad? They would be TWICE as bad without the filibuster.

Um, no.  Both the 2001 and 2003 tax cuts under Bush were passed using budget reconciliation, not under normal order.  In 2001, the final vote was 58-33. In 2003, the vote was 51-50, with Dick Cheney casting the tiebreaking.

Given that both of his major tax packages had 51 votes, hard to see how they would have been twice as bad if they only needed 51 votes.

Conservatives can get tax cuts through budget reconciliation without the filibuster. They can gut regulations by appointing regulators who refuse to enforce the regulations.  Further, Dems didn't block any significant number of judges after the Gang of 14 compromise.  They didn't even come close to stopping Alito or Roberts.

If the 60-vote threshold is done away with, there will undoubtedly be conservative legislation and nominations that will pass the Senate which otherwise would not have passed.  But, that's democracy. And, on balance I do believe progressives will get the better end of the bargain.

Chris Bowers :: Serious question

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Serious question | 29 comments
I guess it depends... (0.00 / 0)
On what you think they would've accomplished then without a filibuster.
I'll laugh (0.00 / 0)
If removing the filibuster leads to the privatization of Social Security.  The potential opportunity to do so is the carrot that should be offered to conservatives to get them to support filibuster reform.

Things You Don't Talk About in Polite Company: Religion, Politics, the Occasional Intersection of Both
[ Parent ]
wasn't it just judicial? (4.00 / 4)
Maybe I'm wrong, but I thought the Republicans were just going to destroy the filibuster on judicial appointments. If I'm right, then this is a more minor "might-have-been" than you say, though obviously one thing could lead to another.


New Jersey politics at Blue Jersey.
Yes it was (4.00 / 2)
It would still have required some action to expand it.  Would the Republicans have taken the next step?  Don't think so.  Would the Democrats when they took control?  Please.

Near as I can tell, the only real advantage would be the precedent, not the actual rule change.

1) The "nuclear option" would have been invoked in mid session, proving to all that it can be done in mid session.

2) They would have made judicial appointments 51 votes.  Lessening the likelihood any Dem change would be something subtle or complex that tried to keep the filibuster alive in some other form.

3) And of course, dropping the filibuster would seem just that much more reasonable.  After all, the other guys started it.

It is possible Obama would have nominated slightly more liberal judges, but I doubt it.  But I think they might have dropped the filibuster to pass health care, instead of what actually happened.  Not sure.

It definitely would have made the job easier today if we supported the nuclear option back in 2005, but the filibuster would not have been "destroyed".

[ Parent ]
Yeah, IIRC they were just going to have Cheney (as President of the Senate) (4.00 / 1)
rule that the filibuster wasn't constitutional for judicial appointments.

I suppose it could have opened up the possibility for Biden to rule that the filibuster is unconstitutional period, but I don't think that would have been likely anyway.

And the constitutionality thing seems like a stupid argument, anyway.  I think it's constitutional for the Senate to agree to the filibuster rule.  I just think it's a terrible rule.

[ Parent ]
Absolutely (0.00 / 0)
Quite so - as I mentioned in the earlier thread.

Also - were the GOP even serious about the judicial filibuster? My recollection is hazy, but, from their general MO, it could well just have been something to hit the Dems with, in the knowledge that they'd get a good proportion of the confirmations they needed (eg Alito) with 60 votes - with a little help from some Gang members.

There was no angle for the Dems (even if they would have gone that way, which they never would have) to go for the judicial-only route, in that they would still need to muster 51 votes to kill the filibuster completely, and the whole thing would be horribly messy(er).

[ Parent ]
Democrats think differently... (4.00 / 1)
Doing away with the filibuster isn't a two way street.  In other words it helps the Democrats when they are in the majority because they can focus on 51 votes instead of 60, AND it helps them when they are in the minority because you can bet your ass that there will almost always be enough "centrist" "bi-partisan" "independent-minded" Democrats to make any threat of a filibuster totally ineffective.  Republicans are just have much much more solidarity in the rank and file so it will always behoove them to have a filibuster.
In light of our unexpectedly huge victory in the 2006 election, (4.00 / 5)
saving the filibuster in 2005 turned out to be a mistake. Nothing was "saved" anyway, since the GOP got all the appointments they wanted as part of the negotiation.

The net effect of saving the filibuster was to increase corporate power. Corporate power, enforced through judicial action, is dominant in our politics. Saving the filibuster, while allowing more pro-corporate judges, was a great strategy for corporatists/judicialists to increase their power at the expense of the legislative branch.

ec=-8.50 soc=-8.41   (3,967 Watts)

I think the bigger question is (4.00 / 1)
How would you feel if there was no filibuster and the republicans had the majority in the Senate?
I'd be fine with that (4.00 / 1)
as long as a Democrat was President or the House was still controlled by Democrats.  That's what the constitution had in mind when its checks and balances were set up.

And if Republicans ever again control all three I would feel very ill, and strongly consider leaving the country.  But if America is insane enough to give total control to R's ever again then so be it.  

I think enough good can be done with a 51 vote Senate that it's more than worth the chance of Republicans running amok at some unspecified time in the future.

[ Parent ]
Yes (4.00 / 5)
     Because we'll never get 60 progressives, and when the Republicans have a majority they'll always be able to get ten useless Democrats to go along with them. If the filibuster had been worth anything to us, we wouldn't have the Bush tax cuts, continued funding for the war in Iraq, or Justice Alito.
Make the Bush tax cuts have a sunset (4.00 / 4)
wouldn't have the Bush tax cuts

Actually, this is one good thing about the filibuster.  If it wasn't for democrats filibustering the tax cuts, they wouldn't have expired.  Instead we would be in a position of democrats having to vote to raise taxes.  Instead, they are in the enviable position of voting to lower taxes on middlelower income people and sitting by to "let" taxes on the wealthy go up.

Our Dime Understanding the U.S. Budget
[ Parent ]
Since raising taxes on the wealthy (0.00 / 0)
is relatively popular, and a great way for Dems to push back on conservatives anti-tax narrative while pointing to all the good things government does that Dems support, I don't see how helpful this is. It's also not like Republicans can't accuse the Dems of raising taxes by not acting to make them permanent, regardless of whether there is a vote.

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 ]
Filibuster concept good, actual practice bad (4.00 / 2)
Being often in the minority, I like the concept of the filibuster: that a majority should not be able to run roughshod over the minority. The current rules worked ok when the minority agreed to allow the majority to proceed as long as the majority agreed to honestly consider the perspectives and proposed solutions of the minority.

Now that the minority Republicans are no longer agreeing to anything, then clearly the filibuster rules must be changed. There may be some way to preserve the ideal intent of the filibuster but prevent it from being used as an obstructionist tactic of the minority. The two ideas I've heard each seem to have some merit:

1. Require 60 votes on Day 1 of the debate, 55 votes on Day 2, 50 votes on Day 3. This means the minority could slow the process and publicly raise objections so that the majority doesn't just vote in a bunch of terrible laws without anyone noticing.

2. Require 40 votes to block a vote from proceeding and require the minority to continue to actually debate the topic during the debate period. If at any time, the minority cannot rouse 40 Senators to vote against proceeding, then the majority could proceed. This would put the onus on the minority to block the proceedings instead of the current system which makes it easy to block and extremely difficult to proceed. If the minority is sufficiently aroused, then they could block proposals, but lethargy or exhaustion would mean the majority could proceed.

Neither of these proposals (or eliminating the filibuster altogether) address the two real problems:

1. Senators of conservative states with tiny populations have as much clout as those from states with gigantic populations. A constitutional amendment would be required to change this horrible situation.

2. Large corporations and corporate media largely control which Senators get campaign funding and positive attention. Principled Senators who attempt to challenge the power elite and stand up for ordinary Americans are attacked viciously and those who carry water for the power elite are given a free pass to say or do whatever they want. This imbalance ensures that whether we have a majority or not, our proposals will have a difficult time passing. This can only really be changed by campaign finance reform (Clean Money Elections) and a revamping of our news media system.

So to answer your question more directly: Yes, preserving the current filibuster system was stupid -- we should have either helped get rid of it or implemented one of the two proposals described above. If Democrats had been savvy, they might have even been able to get Clean Money Elections or some other benevolent legislation in exchange for their help in overturning the filibuster. Instead Democrats perpetuated a stupid system and still lost the judicial fight.

I like the "make them actually filibuster" idea (0.00 / 0)
It seems like the best compromise: preserve 60 votes for desperate situations but require Senators who want to block something to actually have to put some work into it.  I'm pretty sure the number of filibusters (by either party) will drastically go down if this rule were in effect.
[ Parent ]
Yes, more like this (0.00 / 0)
2. Require 40 votes to block a vote from proceeding and require the minority to continue to actually debate the topic during the debate period. If at any time, the minority cannot rouse 40 Senators to vote against proceeding, then the majority could proceed. This would put the onus on the minority to block the proceedings instead of the current system which makes it easy to block and extremely difficult to proceed. If the minority is sufficiently aroused, then they could block proposals, but lethargy or exhaustion would mean the majority could proceed.

Take the issue of number of votes off the table and reform becomes much more difficult to oppose. Say to the wankers Nelson, Akaka, Feinstein, Lieberman et al, "We're not taking anything away from you. You can keep your 40 person 'toy,' but you have to actually play with it. No more free ride -- the burden's now on you."

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

[ Parent ]
Would it be bad politics (0.00 / 0)
To have such an effort be led by Republicans and give the GOP a reputation for reform?  Maybe in an alternate world, the filibuster is ended in 2005, Republicans retain control of Congress in 2006, and Bill Frist becomes president.

Things You Don't Talk About in Polite Company: Religion, Politics, the Occasional Intersection of Both
I doubt it (0.00 / 0)
Most people don't even know what the filibuster is, let alone think of it as a campaign issue.
[ Parent ]
The filibuster exists (4.00 / 6)
To ensure Democratic majorities are short-lived and easily reversed, by throttling their ability to actually govern.
"That's democracy" (4.00 / 2)
Finally!  Thank you!  The idea that "oh we can't get rid of the filibuster cuz then Republicans will pass all this scary stuff" is not only short-sighted but profoundly anti-democratic.  It's like saying we should suspend the midterm elections this year cuz Democrats will lose seats.
So much wrong here... It's so depressing (0.00 / 0)
Wallowing over what could have been is just so much wasted effort.

Reconciliation on the Bush tax cuts does show the filibuster limited greater damage. Reconciliation forced a sunset on the cuts. But for the need to avoid the filibuster, the estate tax would be permanently gone and taxes could've been lowered even more over period of time beyond ten years.

The myopic focus on numbers thresholds -- 60 votes, 51 votes -- avoids both the theoretical and political dialogue needed to devise answers to some actual "serious questions" we must confront:

Should there be a role or place for the minority to effect its voice in the checks and balances of governing?

If so, how? What threshold and burden should it have to meet to effect its voice?

Is the filibuster a problem of numbers or a problem of burden? Why must the majority bear the burden of breaking it? Why isn't the burden on the minority to sustain it?

If a reasonably sufficient burden were created for the minority so that the filibuster is there for extreme (or politically viable) situations but it's otherwise untenable for day-to-day use, is there any reason why we couldn't keep the 60/40 ratio?

What is the most salable filibuster reform? What reform would be most difficult to oppose? If you don't change the 60/40 numbers -- take the numbers question off the table -- but instead change the burden to the minority, will that increase likelihood of enacting change?

What legislative actions, if any, should be exempt from filibuster?

These are just a few serious questions that need to be addressed. Answers and consensus might actually lead to something productive.

...Or we can naval gaze, wallow in coulda, woulda, shoulda and uselessly flame each other, while our inattention to crafting a thoughtful, salable solution allows opponents to define reform in terms they find easiest to oppose.

There's just so little thought and strategery on this topic. It's just some ill-defined thing -- filibuster reform -- a political amoeba that everybody's for, but nobody knows precisely what it is. We've seen this movie before and it appears we're hell bent on turning filibuster reform into Public Option II -- Electric Boogaloo.  I didn't much care for the first's outcome and would prefer to avoid a sequel...

/rant.

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

Veto points and accountability (4.00 / 2)
Ignoring the filibuster and more bizarre Senate rules, here are the veto points in the American political system:

1) House committee
2) Senate committee
3) Full House
4) Full Senate
5) President

That sure seems like an awful lot of checks and balances to me.

We were the first real, large scale democracy.  The founding fathers did an fantastic job working out the details of government without much more than theory to go by.

But ever notice how virtually no country followed our pattern?  Notice how even the United States, which has been instrumental in setting up democracies across the glob, never encourages others to follow our model?

Most countries have only one real veto point -- the parliament.  If you count the chancellor, they have two, but parliament determines the chancellor.  Make it 1.5.

All these veto points make it very hard to hold our elected officials accountable.  Everyone can point fingers at each other and claim someone else is to blame.  It makes it very easy for corporate lobbyists to get their fingers on everything.

Then you want a filibuster on top of that?  

[ Parent ]
It's supposed to be hard (0.00 / 0)
The Constitution was devised to make it hard. But even so, all your enumerated "veto points," whether too many or too few, are majority rule tests. The question is, should there be place for a sufficiently aroused minority to block action? What size minority? What burden should it have to meet?

My opinion is "yes" to the first question and that a well-crafted structure can be devised around that with a heavy burden placed on an opposing minority. However, I concede that others may have a different opinion.

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

[ Parent ]
uhh (0.00 / 0)
I know it is "supposed to be" hard.  That's why I pointed out that it is universally accepted this was a bad idea, though a reasonable guess at the time.

I don't think the filibuster does anything to help minority opposition of a form I consider to be important.  Our constitution prevents abuse of the majority and I think the court system works reasonably well on that point.

Super majority requirements, on the other hand, are a very crude method to prevent tyranny of the majority.  To protect gays, for example, would require a 90%+ super majority by this method.  What percentage of a minority do you think no longer deserves equal protection?

On the other hand, super majority requirements are killing the state of California as we speak.

Democracy is a tricky business.  Majority rule while protecting the rights of the minority is non-trivial.  But super majorities are not the answer.

If we did not have a filibuster, I doubt very seriously you would suggest we add one.  Something to think about.

[ Parent ]
No super majority requirements (0.00 / 0)
Our constitution prevents abuse of the majority and I think the court system works reasonably well on that point.

Ideally, yes. In practice, no. Effectively, the Constitution is whatever five people on the SC say it is, so I guess that leaves us in Scalia and his pal's hands at the moment. And of course, a whole host of public policy issues (e.g. taxation, spending priorities etc.) rarely come under Judicial/Constitutional review.

Super majority requirements,...

No, the whole point I'm making is that the burden must be flipped and put on the minority. If they're going to obstruct, they must actually do it -- hold the floor, produce 40 votes on demand, etc. It's on them. Make the burden substantial enough that it effectively could only be used on those rare occasions when 40+ senators would be willing meet the tough burden.  To be clear, there would never be a need for a super-majority vote, ever.

California...

Is a f-ing mess, with 2/3rds majority requirements. Not what I'm suggesting in the slightest.

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

[ Parent ]
Ah. You have my position of a few months ago (0.00 / 0)
No, the whole point I'm making is that the burden must be flipped and put on the minority.

I've moved on to the point I'm not sure even this is useful.  But I could be talked back into it.

Allowing 41 Senators to grandstand for as long as they can stay awake seems reasonable to me.

[ Parent ]
Been here all along... (0.00 / 0)
...Because I think there should be some minority protection and perhaps more importantly, because we have a much higher likelihood of success if we can take the numbers game off the table. The argument should be about burden, not numbers.

Self-refuting Christine O'Donnell is proof monkeys are still evolving into humans
[ Parent ]
No it's not (0.00 / 0)
Ideally, yes. In practice, no. Effectively, the Constitution is whatever five people on the SC say it is, so I guess that leaves us in Scalia and his pal's hands at the moment.

There are large swaths of the Constitution that the Court leaves entirely to the other branches.  Senate procedure is for the most part one of them.  What's more, the SC rarely challenges the other two branches on important things, and often follows trends elsewhere rather than leading them.  

Effectively, we have a good deal more control over how the Constitution is understood than we realize - focusing solely on what five votes say (or would say) today disarms us unnecessarily.  

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 ]
And my very next sentence was... (4.00 / 1)
And of course, a whole host of public policy issues (e.g. taxation, spending priorities etc.) rarely come under Judicial/Constitutional review.

Beyond that, my comment wasn't made in a vacuum -- it was in response to Mark's suggestion that the Constitution and courts were sufficient to protect the minority from the majority. I don't think my point was an unreasonable response to that assertion. It certainly wasn't meant as fatalistic or to "disarm" from exercising control over Constitutional rights/privileges in the political arena.

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

[ Parent ]
Serious question | 29 comments
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