Filibusted

Kriston asks:

Why on earth don't majority Democrats hand minority Republicans telephone books and tell them to start actually filibustering? It is only a gentleman's agreement that invests the threat of a filibuster with the full weight of an actual filibuster. So long as Republicans choose to turn every vote into a 60-vote cloture issue, Democrats might as well require them to own up to the mechanism that makes this obstructionism possible. At zero cost the Republicans can currently threaten filibuster on any legislation that comes down the pike; at the cost of reading from the encyclopedia all night long, some of these threats will surely be proven to be bluffs. Better yet, an intractable press will have to take notice when Republicans are forced to make a circus display of torpedoing popular legislation. Also, what the Democrats are doing now isn't working: Popular legislation is not passing and Democrats are being tagged "ineffective."

Many Republicans asked this very question when the Democrats were the ones doing the filibustering. The answer, as I understand it, is that if you make the opposition stay and actually talk, you (or a fraction of your majority) have to stay and actually listen. The spectacle is entertaining, but everyone would rather be home in bed, so they "let's not and say we did" became the order of the day."

Incidentally, is anyone else amused by the lightening speed with which filibustering has gone from [undemocratic obstructionism/a vital institution for protecting minority interests] to [an important tool for preserving Federalism/an obscene mechanism for thwarting the clear Will of the People]? No one's even bothered to come up with a better fig leaf than "but it's different when my guys are in charge!

Comments

Those aren't exactly eqivalent. The Republicans threatened the "nuclear option" over Democratic threats to filibuster judicial appointments, individual choices by the president. (The nuclear option was avoided by an agreement to only filibuster in extreme cases.) Only halfway into the new congress, though, the Republicans have filibustered more than any other minority in U.S history, and they've done it over legislation that the Democrats were specifically elected to enact. The main difference I see is that under the Republican majority, you couldn't watch the news without hearing about the sanctity of the "up-or-down vote." Now, filibuster of basically the entire agenda is treated as par for the course.

To summarise, my "fig leaf" is not that it's different when my guys are in charge, but that there was a sort of consensus about the kind of issues where the filibuster was appropriate, and then there was an actual agreement. The current minority has broken both agreements, gentlemen's and actual.

Posted by Anthony Cantor | December 28, 2007 7:42 AM

No one's even bothered to come up with a better fig leaf than "but it's different when my guys are in charge!

The filibuster: the cudgel of the brat.

Posted by Kriston Capps | December 28, 2007 9:00 AM

The Democrats, by and large, filibustered judicial appointments because they genuinely did not agree with the picks, and were willing to go on record saying so. For this, they were threatened with the "nuclear option." The Republicans, on the other hand, have more or less filibustered extremely popular legislation, frequently so they or the president wouldn't have to go on record opposing it in an election year. On top of this, they have filibustered more than any other legislature in the history of our country.

There's no equivalency here besides "they both filibustered stuff" in the broadest sense of the term. How is it a "fig leaf" to believe there's something a little different between trying to block judicial appointees who have proven themselves awful and filibustering everything to the point of creating a de-facto 60-vote standard in the senate?

Posted by Jack | December 28, 2007 9:13 AM

Now that both sides have suffered equally from the filibuster, maybe now is finally time for a deal. Somehow the bar needs to be raised so that the filibuster is preserved for really important matters, but unavailable for routine Senate business.

One problem with this idea is that it is not clear how to do it. The funny thing is that as it has become easier to cut off filibusters, their use has increased. In the 19th century there was no means at all of cutting off a filibuster. During the Wilson Administration a rule was instituted for the first time allowing filibusters to be cut off with a two-thirds vote. In the 1970s, this threhhold was lowered to three-fifths. Yet there was an increase in filibusters after each of these reforms.

Posted by Bruce Bartlett | December 28, 2007 10:06 AM

there was a sort of consensus about the kind of issues where the filibuster was appropriate

This is where economists get nervous - when you have a system that makes bad options very attractive to participants, but they try to agree, morally, not to do bad things. The result is that people usually break those agreements when it's vastly to their benefit.

So the preferred solution is to craft the system such that the bad options aren't available, or such that the cost of the bad options are so high that they are truly only used in real emergencies. Which is, I believe, Kriston's point...

The filibuster is costly, in the form of the physically tasking nature of the act. By allowing the bluff of filibuster to go uncalled, you give your opponents the power of the rare "nuclear option", but without them having to pay its costs. Most economists would have told you from the beginning that if you give someone an extremely powerful option with low or no cost, they'll take it. Instead we lament that the politicians aren't more gentlemanly. Well, I'm not too surprised by that one.

Posted by Geoff | December 28, 2007 10:20 AM

And there's my punishment for the one time I clicked "Post" instead of "Preview". Obviously, only that first sentence was meant to be blockquoted, the rest is my comment.

Posted by Geoff | December 28, 2007 10:21 AM

"The current minority has broken both agreements, gentlemen's and actual."-Anthony Cantor

The Democrats always played nice in the Senate, did they? I hadn't realized that only Republicans play political hardball. Robert Bork and Clarence Thomas might beg to differ (someone will no doubt rush to point out that these two were not filibustered--trust me, I know). As might Priscilla Owen, who was filibustered not because she wasn't competent but because she had some reservations about abortion on demand.

Anyway, putting silly accusations aside (e .g. "The Republicans are so mean--they don't play fair"), I think the filibuster is a good thing, on balance. Anything that throws sand in the gears of the Congress will prevent a lot of bad legislation.

Posted by rwe | December 28, 2007 10:38 AM

How is it a "fig leaf" to believe there's something a little different between trying to block judicial appointees who have proven themselves awful and filibustering everything to the point of creating a de-facto 60-vote standard in the senate?

Well, the Republicans will tell you that the Democrats used filibusters to an unprecendented degree against judicial appointments in the middle of a president's term, greatly harming the courts. The Senate had, except at the end of a president's term, pretty much allowed all judicial nominations to go through - even when the minority party hated the politics of the nominee (i.e. Ruth Bader Ginsburg). Now it's time for payback, and screaming "he hit me first".

Of course the meta-issue in judicial nominations is that the courts have gotten more and more powerful and involved in day to day running of the country. Everyone is running to the courts for solutions to issues that in the past were thrashed out in the political process.

A pox on all of them.

Posted by ech | December 28, 2007 10:41 AM

I am always amused by people like Kriston who propose things without doing even the basic research required to determine whether or not the proposal is actually productive.

Posted by Yancey Ward | December 28, 2007 11:48 AM

RWE:
Except when you have jackasses like Harry Reid being a wimp(and he's a former boxer no less).

Posted by Joe Klein's conscience | December 28, 2007 12:20 PM

"No one's even bothered to come up with a better fig leaf than "but it's different when my guys are in charge!"

Fair enough. That is what the Democratic caucus is doing. But several prominent liberals, such as Matt Yglesias, called for an end to the filibuster when the Republicans controlled the Senate and threatened to go "nuclear" over Bush's judicial appointments. Yglesias argued that Democrats should agree to end the filibuster as long as the filibuster was completely done away with.

He figured that the Republicans wouldn't be in control of Congress forever, and that historically the filibuster is a conservative tool to block progressive legislation. He argued that once the Democrats regain power the filibuster would be an albatross around their neck.

Smart man.

Posted by Joseph | December 28, 2007 12:35 PM

"Republicans have filibustered more than any other minority in U.S history, and they've done it over legislation that the Democrats were specifically elected to enact."

That's a kinda bizarre idea, isn't it? Maybe I don't think either party is all that, but from here it seems there were evidently some Republicans who were elected to keep Democrats from enacting that very legislation. Funny how that works. If everyone is not all hunky dory about your legislation, it may not be such a mandate, unless of course, mandate = when we win for all values of Democrat majority.

But still, Megan's greater point still holds: "But we (whichever "we" you belong to) had honorable and just, nay, moral and ethical reasons for our filibusters! They (whomever they are at the time) are standing in the way of all that rainbow stew and free bubble up that comes with our clearly superior legislation!"

Posted by TexasPatrick | December 28, 2007 12:42 PM

I'm far from an expert on Senate parliamentary procedure, but I think that forcing the actual physical act of a filibuster requires a quorum of half of the senate, so in order to force a filibuster, the Dems would have to keep 50 senators on hand for as long as it takes. With only 49 Ds, that's going to be tough to do.

However, even a gain of 3 or 4 seats (NM, CO, VA look likely; OR, MN, ME look possible) would make a huge difference in the Ds' ability to sustain a quorum long enough to force the Rs to follow through on the threat of a filibuster in 2009. I just don't think that you can count on Robert Byrd (and maybe Tim Johnson) all night right now.

Posted by Brendan | December 28, 2007 12:48 PM

The D's could try to force the filibuster, but Reid would probably have a revolt on his hands pretty quickly. They couldn't even forego some earmarks in the name of party unity. This is well covered territory, but parliamentary rules empower the minority and this is especially so of the filibuster. The filibuster may be physically tasking for one or two in the minority, but it basically requires the physcial presence of the entire majority throughout (and a few of them are busy with some campaigns).

Pointing to the number of cloture votes as evidence that R's are more obstructive is ignorant. All it means is that the D's force the vote. You can obstruct just as effectively by telling the other side you have sufficient votes to filibuster. The decision rests with the majority on whether to force the issue.

Posted by Alex | December 28, 2007 12:53 PM

The Dems would be threatening the nuclear option, and would have done so long ago, except for two things: Reid won't bring it up, and Lieberman would vote against it (which is partly why Reid won't bring it up). The nuclear option only works if you have the 51 votes needed to change the rules of the Senate.

More and better Democrats needed in the Senate.

Posted by liberalrob | December 28, 2007 1:36 PM

That's a kinda bizarre idea, isn't it? Maybe I don't think either party is all that, but from here it seems there were evidently some Republicans who were elected to keep Democrats from enacting that very legislation. Funny how that works. If everyone is not all hunky dory about your legislation, it may not be such a mandate, unless of course, mandate = when we win for all values of Democrat majority.

I seem to recall a lot of people arguing on behalf of a Democrat controlled Congress in the hopes of achieving “divided government” so that nothing would get done. I also recall Nancy Pelosi promising to enact a sort of “bill of rights” for the minority party if Democrats controlled the House and this (along with ending earmarks) being abandoned almost immediately.

Moreover if we want to talk about issues, the issue that we kept hearing about in the 2006 election was the public’s disapproval with the Iraqi campaign of the War and how supposedly the American people wanted us to leave or set a timetable for leaving and that Democrats were supposedly elected to do just that. Well now they control the purse strings and unlike trying to raise taxes, kill new pharmaceutical development or price unskilled workers out of the market, they don’t need a single Republican to help them “end the War in Iraq” and yet they haven’t done anything of the sort.

Methinks that claims of a mandate for the Democrat Congress are just a wee bit overstated.

Posted by Thorley Winston | December 28, 2007 2:22 PM

Our friend, liberalRob and some others, are too liberal to understand pretty obvious distinctions. The "nuclear option" only referred to judicial nominations because, it was argued, the Constitution required a vote on judicial nominations. There was no attempt to extend that to all filibusters. In fact, trying to eliminate the filibuster would require a change to the Senate rules which would also be subject to a filibuster.

Rick

Posted by Rick Caird | December 28, 2007 2:59 PM

The "nuclear option" only referred to judicial nominations

No, that was the context in which the "nuclear option" came up, but the rule change would have applied to ALL filibusters.

Nuclear option

Posted by liberalrob | December 28, 2007 4:07 PM

Dunno what happened, I used the Preview button and everything!

Nuclear option (take 2)

Hope this like works better.

Posted by liberalrob | December 28, 2007 4:09 PM

If I recall correctly, when the Dems were filibustering the Reps judges, they Reps had started breaking rules about how the judges get to committee. The rules involved were long standing and to the effect that the senators from the state that the judge was from had veto power, or something to that effect, among other agreements.

Posted by Chuck | December 28, 2007 5:14 PM

I think gridlock is generally good...so the more bills are filibustered, the better off is the country IMHO. In other words, I think we should make the use of the filibuster easier, not harder - contra Bruce Bartlett above.

Posted by HispanicPundit | December 28, 2007 5:50 PM

liberalrob, did you, you know, read the article you linked to? Look at the end:

[T]he current Republican leadership insists the proposed rule change only affect judicial nominations. According to the Democrats, arguments that a simple majority should prevail apply equally well to all votes where the Constitution does not specify a three-fifths majority. Republicans state that there is a difference between the filibustering of legislation -- which affects only the Senate's own constitutional prerogative to consider new laws -- and the filibustering of a President's judicial or executive nominees, which arguably impinges on the constitutional powers of the Executive branch.

So, you can assert that "[t]he rule change would have applied to ALL filibusters", but the article doesn't say that. It says that Democrats argued it would while Republicans argued it wouldn't.

Posted by Oildrilling Lunatic | December 28, 2007 7:01 PM

It's the Senate. It takes 60 votes to get anything significant done. Just because Mr. Reid apparently can't add (or just likes to kick dead horses) doesn't mean the GOP isn't being fair.

Maybe - the GOP has filibustered more than any other minority in history because they've been forced to by a Majority Leader who can't or won't put forward legislation that can get 60 votes.

The majority doesn't force real filibusters because one minority-party Senator can force 50 majority party members to stay up all night.

Mr. Smith Goes to Washington is a great movie, but a poor guide to modern Senate procedures.

Posted by Rob | December 28, 2007 10:54 PM

An oildrilling lunatic snarked:

liberalrob, did you, you know, read the article you linked to?

I read enough to, you know, come to my own conclusion. And, you know, I don't think it's that unclear which interpretation I, you know, agree with.

Posted by liberalrob | December 29, 2007 1:50 AM