Watching Chris Bowers' Daily Kos postings on filibuster reform, it is depressing and sad seeing how many are still opposed to ending the filibuster. Broadly speaking, the netroots has watched four years of pervasive and systemic minority obstruction in the Senate which has served to significantly weaken any progressive governance. There has been a large amount of analysis in the netroots on this, with a broad consensus that the price for minority obstructionism is going to be paid for the majority whom the country blames for any and all failures to address their problems. A number of polls confirm the public neither knows nor cares about Senate rules, and are only dimly and occasionally aware of Republican tactics in this regard.
The most frequent progressive refrain to defend the filibuster is the old standby: "Well what if the Republicans take over? Won't it be nice to be able to stop them privatizing Social Security/reinstituting slavery/eating kittens?" My sense is that this viewpoint is on the upswing compared roughly and unscientifically to how often I would see this view in an anti-filibuster piece from 2008 or 2009. That's somewhat understandable. With Democratic fortunes on the downswing, it is natural to fear what Republicans would do if they got the governing triple-crown. They are dominated by awful people with frightening agendas. It's sensible to want to cling to anything which might avert the worst of this.
The filibuster will not achieve that aim. The filibuster is unlikely to serve any useful purpose in preventing anything substantial the Republicans might attempt. This isn't for the "Democrats are too weak to use the filibuster" reason (thought that is a problem), the deeper issue here is that the "Nuclear Option" fracas of 2005 proved that the filibuster is Tinkerbell; a fairtale. It only lives so long as 51 Senators keep clapping for it. The reason to get rid of the filibuster is that the Republicans will not hesitate to eliminate it if and when it suits them from the majority, so relying on it to stop anything really bad from happening is deluded wishful thinking. Besides, the way to head off those Republican majorities is to govern better and that cannot happen with the filibuster.
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 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.
Having taken a lengthy vacation from politics (for pressing engagements on other fronts), I've been freed up just in time for some good old Congressional hijinks as the health care bill approaches its Waterloo.
After two or three weeks lurking (most particularly here), I'm impressed with what seems to be a general understanding that, while a bill with a public option (of some kind) might secure 51 votes in the Senate, it would stand no chance of winning the necessary 3/5 vote on cloture.
With this in mind, Chris has canvassed as 51% solutions both reconciliation and the nuclear option.
Whilst either would be red meat to any connoisseur of Congressional shenanigans, the most vital question to ask before anyone got carried away was (and is): how on earth will you find the 51 votes?
The so-called whip count on the public option - which I seem to recall stands at around 45 senators expressing themselves in favor - is worse than useless for this purpose: because those 45 senators were not asked whether they favored a 51% solution, which is the only way in the which the public option can pass the Senate.
Of course, few, if any, would have answered so incendiary a question. Why should they, given that lefties seem content with the worthless assurance they'd already given?
Either reconciliation or the nuclear option would surely raise a media firestorm, not only among those outlets targeting the 'death panel' crazies but also across establishment media. The messagemeisters on the right will have honed their strategy over months to meet such a challenge and the Wurlitzer will be ready to wurl.
And we know from bitter experience how bad the Dems and their friends are at responding at such attacks.
If the right can produce 'death panels' out of thin air, a 51% solution will be more than adequate to fuel fantasies about Obama sweeping aside the Constitution to take over the government; pshopped photos of Obama as an African dictator, fly-whisk in hand. And much worse.
And the senators who lefties are fondly supposing will follow through with their support of the public option are (mostly) the folks who talked a good rebellion in earlier Congresses, but somehow never quite made the play!
On the basis of cool, hard political calculation, most senators will see absolutely no percentage in a 51% solution - especially given that the public option which could garner 51 votes would probably be a pretty feeble article.
And this is before any consideration of the hit that senators might take to their campaign finances from being tagged as bomb-throwers.
Or what would happen if, on the key 51% vote, the Dems somehow came up short.
For selfish reasons, I'd love to see the Senate Dems go to the mat on the public option - which inevitably means going 51%.
So I'd love to be shown credible evidence that Senate Dems (or enough of them) are indeed ready, willing and able to go through with it.
The Massachusetts Senate agreed Tuesday to give the governor the power to appoint an interim U.S. senator, which could pave the way for an appointment to fill Edward M. Kennedy 's vacant seat as early as Wednesday.
The Senate voted 24-16. Nine Democrats and all five Republicans voted against the bill.
So, Democrats will soon have 60 Senators again. According to most Democrats, this is the minimum number required to control the United States Senate. However, since Senator Robert Byrd remains in the hospital, Republicans will maintain control even once this interim appointment is sworn in,
Snark aside, it is worth noting that without the filibuster, having only 52 Democratic Senators would actually be a significant improvement on the current Senate. The Conservadems would be a smaller percentage of the overall caucus, and Democrats could lose two Senators--instead of the current zero--and still pass legislation.
Progressives far and wide have mocked and attacked Senator Max Baucus for deciding to negotiate with an even number of Democrats and Republicans despite the 60-40 Democratic majority. However, the entire Senate Democratic caucus is doing the exact same thing as Max Baucus on every single piece of legislation except the budget. Because they are not challenging the Republican abuse of the filibuster, they have all effectively decided to give themselves the same number of votes in the Senate as Republicans on every issue, and even allowed Senator Byrd to serve as a tie-breaker in favor of Republicans while he recovers in the hospital.
It doesn't have to be this way, but Senate Democrats have decided that it should be that way. And so, we are not taking anywhere near full advantage of the best chance for progressive federal legislation since 1965. Senate manners are apparently the most important policy of all.
Lately I have been arguing that progressive policy has been stalled, weakened and otherwise defeated during the Obama administration largely to the 60-vote culture of the Senate (see The Progressive Block, The 60 Vote Lie, and Conspiracy of Bogus Process Arguments). What is particularly irksome about the continuous defeat of progressive policy in the senate is that, through the use of the nuclear option, any filibuster in the Senate can actually be ended with 51 votes. To put it a different way, the supposed need for 60 votes in the Senate is untrue.
President Clinton, who is just about the most lucid and articulate politician I know, discussed a wide variety of topics during the meeting. As seems inevitable these days, the supposed need for sixty votes in the Senate arose on multiple topics. As examples, President Clinton talked about how his health care plan was defeated because it didn't have 60 votes, how the climate change bill that passed the House right now only had 54-55 votes and would not pass the Senate in its current form, and how 60 votes were needed to pass most, if not all, of health care reform in 2009.
Toward the end of the meeting, because the nuclear option and the artificial 60-vote requirement in the Senate has been on my mind, I asked President Clinton the following question:
President Clinton, I have a quick process question. Isn't it possible--not necessarily desirable, but at least possible--to break any filibuster in the Senate with only 51 votes through the use of the Nuclear Option?
Much to my surprise, in response President Clinton said both that he had read my piece on this (I came late to the meeting and didn't even introduce myself before the question, so he was telling the truth) and that he was not certain exactly what the nuclear option was. He indicated that he had recently talked to Hillary about this subject, since she had been in the Senate and it was more her area of expertise. Apparently, she said that reconciliation was the nuclear option (FWIW Emptywheel thinks he said the same thing).
Sheepishly, I told him that the nuclear option was different from reconciliation. I explained that it can be used to end any filibuster or other delaying procedural tactic with only 51 votes, with the most famous example being the Republican attempt to end the use of filibusters during judicial confirmations in 2005. He responded that he thought that question had never been resolved because the Gang of 14 pushed it off, but that he would look into it more.
My conclusion from this exchange is that if even President Bill Clinton does not know what the nuclear option is, overall public knowledge of it must be extraordinarily low. As such, very few people would question the repeated claims by Senators and pundits that 60 votes are required pass legislation in the Senate. Such claims will come off as true simply due to the authority of the people making the claims.
If we are going to ever destroy the filibuster in the Senate, we have a lot of public education to do first. Such education is possible, as I believe our campaign on No Residual Forces demonstrated in 2007. Further, it is the sort of public education campaign that should catch on and become viral, because it shows that dozens of Senators have been either lying or ignorant about the rules of the Senate for a long time.
A progressive governing majority will never be possible as long as the 60-vote culture of the Senate remains in place. It will take a long time to remove the filibuster. In fact, given the culture of Democrats on Capitol Hill, we probably will have to wait until Republicans retake the Senate for it to happen. Still, even if it first passes under a Republican Senate majority, it is one of the necessary requirements to get progressive federal policy passed in this country.
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