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Going Nuclear On The Filibuster?

[ Posted Tuesday, December 22nd, 2009 – 17:07 UTC ]

These days, it takes 60 votes to do just about anything in the United States Senate. That is a fact that galls many, especially since it is a fairly recent development. While the filibuster (or, the more polite modern version, cloture) has been around for a long time, it simply has not been used as such a blunt instrument before in the fashion Republicans are now swinging it around. Which has led to calls to either abolish the filibuster, or scale it back in some way. But proponents of such action should really think long and hard before they do. Because, eventually, the shoe's going to be on the other foot for Democrats in the Senate. This is something which usually gets lost in this debate, or brushed off when mentioned. It really shouldn't, though.

Paul Krugman is the most recent to weigh in on the subject, with his most recent column. In it, he says:

[T]he Senate -- and, therefore, the U.S. government as a whole -- has become ominously dysfunctional.

After all, Democrats won big last year, running on a platform that put health reform front and center. In any other advanced democracy this would have given them the mandate and the ability to make major changes. But the need for 60 votes to cut off Senate debate and end a filibuster -- a requirement that appears nowhere in the Constitution, but is simply a self-imposed rule -- turned what should have been a straightforward piece of legislating into a nail-biter. And it gave a handful of wavering senators extraordinary power to shape the bill.

Now consider what lies ahead. We need fundamental financial reform. We need to deal with climate change. We need to deal with our long-run budget deficit. What are the chances that we can do all that -- or, I'm tempted to say, any of it -- if doing anything requires 60 votes in a deeply polarized Senate?

. . .

But if such legislation [to change the 60-vote limit] is itself blocked by a filibuster — which it almost surely would be -- reformers should turn to other options. Remember, the Constitution sets up the Senate as a body with majority -- not supermajority -- rule. So the rule of 60 can be changed. A Congressional Research Service report from 2005, when a Republican majority was threatening to abolish the filibuster so it could push through Bush judicial nominees, suggests several ways this could happen -- for example, through a majority vote changing Senate rules on the first day of a new session.

Nobody should meddle lightly with long-established parliamentary procedure. But our current situation is unprecedented: America is caught between severe problems that must be addressed and a minority party determined to block action on every front. Doing nothing is not an option -- not unless you want the nation to sit motionless, with an effectively paralyzed government, waiting for financial, environmental and fiscal crises to strike.

The whole column is worth reading, and in it Krugman points out that in the 1960s, filibusters (either actual or merely threatened) happened in eight percent of legislation. In the 1980s, that had risen to 27 percent, and since 2006 it has hit 70 percent. What he doesn't say is that it is accelerating even faster, with the past two years both setting records for the number of filibusters (around 100 this year), and then immediately breaking those records to set new ones.

I do sympathize with the calls for reform. I live in a state where it takes a two-thirds vote from our legislature to pass a budget. Imagine for a moment that just 34 senators could halt legislation in the U.S. Senate instead of 40, and you'll understand why California's state government is so dysfunctional.

But while calling for a lower number (57? 55? a simple majority?) to get things done in the Senate is tempting, especially after witnessing the current healthcare bill's progress, it should be approached with a healthy amount of caution. Because what if it were 55 (or 51) Republicans we were talking about?

Krugman does point out that Democrats aren't usually as cohesive as Republicans, which is why a lot of stuff got through a Republican Senate under George W. Bush. Democrats just aren't usually as good at marshalling the arcane rules of the Senate as Republicans are, even on a good day.

But the real answer, no matter what the filibuster number stands at, is to get so many of your own party elected that it is irrelevant. If Democrats had 65 votes in the Senate right now, then they wouldn't have to cut deals with each and every one of them to get something done -- it would take six of them working together to stop a bill.

Of course, looking at the political landscape for 2010, that doesn't seem very likely at this point. But Democrats have done a fairly lackluster job at shining the media spotlight on the Republicans' historic obstructionism. Filibusters used to be rare, because it came with a risk of paying a political price for mounting one. These days, there appears to be no political price for doing so by Republicans -- who (as both Krugman and myself have recently pointed out) just filibustered the Pentagon's budget in an attempt to slow down the healthcare bill.

Democrats didn't even make it an issue, or at least not that I've seen.

This is why Republicans are soon going to be filibustering every single piece of legislation which they didn't write. Because their opponents don't even try to make such blatant obstructionism a political issue with the public -- even over "playing politics over funding the troops when there's a war on."

Let's say the Senate does change the filibuster rules to 55 votes. But the political pendulum will swing at some point, meaning that unless Democrats had at least 46 senators in office at all times, Republicans would steamroll their agenda through -- with everything that suggests (federal judges all the way up to the Supreme Court, legislation to abolish all taxes forever, whatever...).

And Democrats, having been the ones to change the rules, would have absolutely no leg to stand on when attempting to complain about the outcome.

So, like I said, while it is very, very tempting to call for watering down the 60-vote limit, I would urge proponents of the idea to exercise a little caution about what exact number you would choose. Because there will indeed come a point when the tables are turned, so I really wouldn't advise setting it too low.


[Note: I couldn't work this into this story, but for comic relief I strongly recommend watching or reading Senator Roland Burris' poem, as no matter where you stand on healthcare reform, you'll probably get a laugh out of it.]


-- Chris Weigant

Follow Chris on Twitter: @ChrisWeigant


6 Comments on “Going Nuclear On The Filibuster?”

  1. [1] 
    Michale wrote:

    Doing nothing is not an option

    I disagree with Krugman..

    Doing nothing is the ONLY logical option when it is likely that the "something" that Democrats want to do will only make matters worse..

    And Democrats, having been the ones to change the rules, would have absolutely no leg to stand on when attempting to complain about the outcome.

    But, Democrats being Democrats, they STILL will complain..

    One only has to look at the recent debacle in MA to know this is true.

    So, like I said, while it is very, very tempting to call for watering down the 60-vote limit, I would urge proponents of the idea to exercise a little caution about what exact number you would choose. Because there will indeed come a point when the tables are turned, so I really wouldn't advise setting it too low.

    This caution is definitely warranted. Democrats very rarely look at the "big picture" and have not mastered the skill of thinking in the long term.

    Which is simply another reason why Democrats, as a whole, do not make good leaders.


  2. [2] 
    Osborne Ink wrote:

    Chris, didn't you watch Senator Whitehouse take down the GOP the other day? It was a historic speech. Finally, someone has stood up in Congress and denounced the GOP and its sources as fully as they deserve.

  3. [3] 
    BashiBazouk wrote:

    I think the answer is to keep the filibuster but get rid of cloture. Make the opposition give continuous floor speeches. This would make it much more difficult to try so many per session and could be theoretically broken by waiting the speakers out. Maybe even add language that forces those who take part (in line to speak) must remain in the chamber or loose the right to speak (with bathroom breaks of course). It also has the publicity aspect that as it goes longer the news channels will start to cover the speech it's self. Who knows what tired senators will say in the 11th hour. It had better be good or will get good play time in the next round of political attack ads come the next election. This way it remains a tool for the minority to block the majority when it's important but not a continuous free pass to do so.

  4. [4] 
    Michale wrote:


    I think you are missing CW's point.

    Any change to make filibusters harder will come back and bite the Democrats on the ass when THEY become the minority party again.

    Which will probably be after the 2010 mid-term elections.

    It's easy to fall into the trap by thinking that Democrats, so loved by the American Public {{{cough}}} bullshit {{{cough}}} will always remain the majority party, but it just ain't so.

    So, it is very short sighted of Democrats to want to change things to make it easier and better for Democrats in the here and now. Because those "easier and better" tools will be inherited by the GOP when THEY become the majority party.

    Now, me personally, I agree with you. Let's make it harder to be obstructionist. Let's make it harder for special interests and lobbyist-paid-for CongressCritters to get their "sweethart" deals

    That would be the logical and rational thing to do.

    It's just that, after the 2010 elections, such action will really favor the Republicans.


  5. [5] 
    akadjian wrote:

    Burris' poem was hilarious. Heard this on NPR the other night and had to laugh. Well played and much needed after this long health care holiday season!


    p.s. As for Republicans being more cohesive, I think there is a reason for this.

    The reason is simple politics. Republicans have completely embraced the idea that government should be for businesses and not people - i.e. "trickle down" theory in one form or another. So they can fully embrace the corporate agenda of well-heeled corporate groups like the US Chamber of Commerce.

    Democrats haven't quite abandoned the principle that government is by the people, for the people, but at the same time, they still like their campaign contributions from big business. So they have to pick and choose and often appeared divided as different politicians seek to satisfy different corporate constituents on different pieces of legislation.

    This is also the reason why it's easier for Republicans to pass legislation with a minority. All they have to do is find a few Democrats who owe some favors to big business. While Democrats, to pass legislation, often have to find politicians will to go AGAINST their corporate benefactors.

  6. [6] 
    LewDan wrote:

    I agree with Mr. Krugman. Yes, reforming or eliminating filibusters will come back to bite Democrats, as it should if it makes government more responsive to voters, as it should be.

    The problem, right and left, is that both parties try to protect themselves from the voters. But our representatives, of course, are supposed to represent us and our interests, not their own. That's the whole problem. The parties have corrupted the system.

    Your caution, Chris, is that reform would make government more responsive so that when Republican's are returned to office Republican policies will follow—as they should. That's not a bad thing. Circumventing democracy to protect pet policy positions is exactly what we need to stop.

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