My Deep Thought

by publius

Will filibusters still be unconstitutional if the Dems get 60?

Comments

[CaseyL]

Hahahahahaahahahahahahaahahahahahahahahahahah - *gasp* *inhale*- hahahhahahahahahah....

No.

SATSQ No. 12,693.

[Roger Moore]

You have that backward. If the Dems make it to 60, filibustering would be irrelevant because they'd have enough votes to pass cloture. It's the more likely case that the Dems can't get a filibuster-proof majority that it's even an issue.

It's still a good question. I'm betting that arguments against the filibuster will be flushed down the memory hole the moment there's a Democrat in office.

[washerdreyer]

Publius, you have a joke premise problem here. If the Dems get 60 (who will actually vote together for some appointee) absurd arguments about the unconstitutionality of the filibuster for judicial appointees will be neither he nor there, since they'll have 60. It's in the more likely scenario, of an Obama Presidency but less than 60 Democratic Senators, that we'll just how serious McCarthy was about the unconstitutionality of the filibuster.

[publius]

good points -- in my defense, i was going to say "around 60" or "close to 60", but i thought it made less pithy

but that said, i think even at 60, the filibuster will be very important. the bigger the coalition, the harder to keep it together. and red state Senators aren't going to always vote down the line (but, at same time, dems will get specter and snowe a lot).

on some issues, it's going to be really close I think. my hunch is that NRO will lose its passion for ending the filibuster

[Matthew Austern]

Which is a pity. Calling the filibuster unconstitutional is and was absurd, and I didn't like a lot of the things the Republicans would have done in 2005 if the filibuster hadn't existed, but, putting absurd constitutional arguments aside for the moment, the Republicans were right on the merits when they said the filibuster should be abolished. I wish the Democratic Senators had called their bluff and gone along with getting rid of it.

In the unlikely event that we do get a solid Democratic coalition of 60 Senators, I hope the first thing they do is get rid of the filibuster and other antidemocratic Senate rules.

[Warren Terra]

As Publius notes in Comments, having 60 senators who aren't Republicans won't in itself do much against the filibuster: any plan that relies on the liberal tendencies of Baucus or Landreau (sp?) or the Democratic sympathies of Lieberman is pretty fundamentally flawed. But if the elections in a couple of weeks put a large number of Republican Senators and Congresspeople out to pasture, if Obama runs up a decent margin either in the popular vote or the electoral college, it should put the fear of G-d into the Republicans, and maybe they won't be so quick to filibuster. Iirc, the Republicans have to defend more vulnerable senate seats in 2010 than the Dems, because the R's had a good year in 2004 - some of those folks will be looking over their shoulders. And, as Publius notes, it's always a possibility that the actions of Sens. Snowe, Collins, and Specter will finally actually live up to their often highminded rhetoric - but we've been waiting a long time to see that.

[Mike Schilling]

Stephen Bainbridge beat you t it.

[Jesurgislac]

Impeachment will be back on the table if the Republicans get 60...

[Hartmut]

Not that they will nor try even with less, Jes.

[Hartmut]

"not", not "nor"

[Anthony Damiani]

Publis, you know they used the filibuster a record number of times since 2006 to thwart any motion towards a Democratic agenda, right? And a record number by some absurd multiple, no less.

[yoyo]

and that was just for giggles, since bush would be vetoing anything anyway. You don't think filibustering every motion just to open the window and then running on "Change? More like Fail!" in 2012 is going to be the gameplan? it was last time, and it worked pretty well.

[JoshA]

What everyone upthread said. The joke works better if Democrats have less than 60.

However, I find McCarthy's reasoning 100% convincing. Given that, I strongly recommend that the Democrats exercise what the Republicans correctly called the "Constitutional Option" and do away with the horrible practice of the filibuster if the Republicans use it in the way we all know they will.

Seriously, what's especially deranged about all this is that the Republicans already made record use of the filibuster since the flipover to Democratic majority in 2007---even though they don't even need to filibuster, since Bush could just veto.

[cleek]

related question:

Should the Dems win in the landslide it looks like they'll win, will Andy McCarthy change his stance on 50%, 75% or 100% or his previous opinions on how government should run ?

[Hartmut]

I'd do away with the filibuster provided there was also a rule that certain things need a majority of 60 or 2/3rds, including nominees for life positions. If it were up to me, I'd change the constitution accordingly. Any candidate failing to get that super-majority would only be appointed temporarily and could not be the deciding voice in close decisions.

[freelunch]

I liked filibusters when they were real, when those involved in the filibuster actually had to filibuster, not merely threaten to do so if the bill came up for review, knowing full well that the majority leaders would pull the bill if there were the threat.

Next up, let's force to actually have read the bill that they are voting on.

[freelunch]

I liked filibusters when they were real, when those involved in the filibuster actually had to filibuster, not merely threaten to do so if the bill came up for review, knowing full well that the majority leaders would pull the bill if there were the threat.

Next up, let's force to actually have read the bill that they are voting on.

[tom p]

OK, I will be the one to stand in defense of the fillibuster.

Where have you guys been the last 8 years? Do you not remember the excesses of the Bush Admin working in concert with a Rep House and a Rep Senate? How much worse would things now be if the Dems had been unable to raise the spectre of a fillibuster? (mind you, they rarely used it, but that is only because they had no balls)

A president, who's party owns both houses of Congress has almost unlimited power. The courts, while a check, take a long time to work. Consider how long it has taken for the prisoners in Guantanamo to get their Habeus rights: 6 years. Consider how long it has taken to get the EPA to regulate greenhouse gasses: Not yet.

Consider also the gutting of OSHA by rule making. Consider the politicalization of DOJ. Consider... Ah hell, you guys know the list is endless.

Without a fillibuster threat, it would have been worse, because even Bush realized that no matter how cowed the Dems were, there were some things they just would not swallow.

This election, if it plays out they way it looks like it is going to, will be like an earthquake, leaving the Reps almost as cowed as the Dems were in 2001, possibly worse. I will not be surprised if Obama wins with an electoral thumping (320+) and with the expected Republican losses in both the House and the Senate, a President Obama should be in a very strong position to get a good deal of what he wants. If Obama is able to appear to be a reasonable Pres, trying to work across the aisle, and is met time and again with Rep blockades, the Reps will look all the worse in 2010. The Reps will know it and so go along... Up to a point. But there is a line even they will not cross.

I am not afraid of that. I am afraid of a President with unchecked power.

One last thought: How is it the Republicans, just a few short years after they were talking of a "permanent Republican majority", have come to this nadir? Overreach.

Don't think for a second, that the Dems are immune.

[Hartmut]

freelunch, while we are at it: make a rule that bills have to be single issue. That would make them both shorter and less sensitive to corruption (like hidden add-ons, unrelated pork etc.).

[Hartmut]

tom p, we will cross that bridge (of Dem corruption) when we reach it.
As I said above, the filibuster should in my opinion be replaced by something more substantive, written down in the constitution where it can't be "nuked" that easily or otherwise logically abused. Simply dropping it would be a fatal move indeed.

[Ben Alpers]

the Republicans were right on the merits when they said the filibuster should be abolished.

Let me add my voice to those who don't see the "merits" of getting rid of the filibuster. And appeals to democracy or majoritarianism won't work because the Senate, which gives equal representation to Wyoming and California and no representation to DC, is a fundamentally undemocratic body.

As I said above, the filibuster should in my opinion be replaced by something more substantive, written down in the constitution where it can't be "nuked" that easily or otherwise logically abused. Simply dropping it would be a fatal move indeed.

Well the rational thing would be to abolish equal representation of the states in the Senate, though under Article V that would require all fifty states to agree...and that obviously will never happen.

Though here's an interesting fantasy constitutional crisis: what if, through the normal process of amending the constitution, the final clause in Article V (that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.) were to be eliminated. And then, again through the normal process of constitutional amendment, representation in the Senate was made proportional to population. Would that be constitutional? Could a small state that ratified neither of these two Amendments claim that the entire process was null and void under the (nor former) final clause of Article V? Or is this a completely legitimate work-around? (And, yes, I'm well aware that this, too, would be utterly politically impossible.)

[Ben Alpers]

the Republicans were right on the merits when they said the filibuster should be abolished.

Let me add my voice to those who don't see the "merits" of getting rid of the filibuster. And appeals to democracy or majoritarianism won't work because the Senate, which gives equal representation to Wyoming and California and no representation to DC, is a fundamentally undemocratic body.

As I said above, the filibuster should in my opinion be replaced by something more substantive, written down in the constitution where it can't be "nuked" that easily or otherwise logically abused. Simply dropping it would be a fatal move indeed.

Well the rational thing would be to abolish equal representation of the states in the Senate, though under Article V that would require all fifty states to agree...and that obviously will never happen.

Though here's an interesting fantasy constitutional crisis: what if, through the normal process of amending the constitution, the final clause in Article V (that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.) were to be eliminated. And then, again through the normal process of constitutional amendment, representation in the Senate was made proportional to population. Would that be constitutional? Could a small state that ratified neither of these two Amendments claim that the entire process was null and void under the (nor former) final clause of Article V? Or is this a completely legitimate work-around? (And, yes, I'm well aware that this, too, would be utterly politically impossible.)

[tom p]

Ben, I don't think so... The final clause is pretty absolute. But like you said, it is utterly politically impossible.

[freelunch]

Ben, how about a constitutional amendment that makes the Senate as powerless as the House of Lords? That shouldn't be a problem.

We already have states working on a workaround to make the Electoral College meaningless. Once the states that represent the majority of Electoral Votes agree to that compact, we won't have to deal with Florida 2000 again.

[freelunch]

Ben, how about a constitutional amendment that makes the Senate as powerless as the House of Lords? That shouldn't be a problem.

We already have states working on a workaround to make the Electoral College meaningless. Once the states that represent the majority of Electoral Votes agree to that compact, we won't have to deal with Florida 2000 again.

[typepad keeps telling me that things aren't posting]

[Anarch]

I too have no problem with the filibuster. My problem rests entirely with the gentleman's agreement to never force the filibuster if the numbers aren't there. Screw that. If the opposition is so truly opposed to the measure, make them stand before the American people and read the phone book for days on end. Let them pay the price at the ballot box, not give them a free pass in Congress.

[Ugh]

While we're on the subject of Constitutional amendments, one that might be popular come 1/20/09: repeal of the Presidential pardon power.

[russell]

My personal opinion -- as undemocratic as it is, the Senate serves the purpose for which it was intended, which is as a more deliberative body than the House. IMO there is value in balancing the sanguine humor with the phlegmatic, as it were.

If we want to tinker with the constitution at a fundamental level, my thought would be to move to a parliamentary model, and nip the increasingly ascendant executive in the bud.

Since we're talking blue sky and all.

Thanks -

[tom p]

"we will cross that bridge (of Dem corruption) when we reach it."

Actually hartmut, I was not speaking of corruption, I was speaking of "political" overreach. The idea that somehow, just because we have the power to do what ever we want, we should do whatever we want.

The Republicans are victims of their own hubris. I rather suspect that the large dissatisfaction with a Democratic congress right now has more to do with their inability to check a Republican president than anything else. Die hard Republicans will always hate a Dem congress, die hard Dems will be disgusted with a congress unable to push back, and those in the middle? They just want something to get done.

If the Democrats go too far too fast (nationalized health care is one such issue, too many are afraid of it) the independants will swing back to the Reps.

My hope is that Obama will continue to play to the center, giving people time to get used to some of our more "progressive" ideas, as he implements them incrementally.

As to corruption, yes it is inevitable, and we will deal with it when the time comes.

[cleek]

bring back the distinction between war-making and war-declaration. get rid of the pernicious idea that the president, by virtue of CiC title, can send troops any place, any time, and that Congress can only decide to fund or not. in other words: require that a formal declaration of war must be passed by Congress, before any shooting starts.

also, put a cap on the size of the military budget. tie it to tax revenue.

[cleek]

(nationalized health care is one such issue, too many are afraid of it)

they might lose their fear of it, if it's implemented correctly. they might just grow to love it.

[Ben Alpers]

Ben, how about a constitutional amendment that makes the Senate as powerless as the House of Lords? That shouldn't be a problem.

I actually like upper houses with real power. They should just be organized with a more democratic system of representation.

Speaking of more democratic systems of representation, the House would be dramatically more democratic if the district size were smaller. It's been nearly a century since the number of House members has increased. And that can be done entirely by Congress.

The last significant increase in the size of the House was 1911, when it went from 385 to 433 members (two more were added a few years later).

In 1910, the U.S. population was 92.2 million. It is now more than three times that size. Doubling the number of seats in the House of Representatives would be a simple, and entirely sensible, reform that would make members more accountable to their electorates, and would also reduce the overrepresentation of very small states in the House and the Electoral College (though with any luck, the EC will be made irrelevant by the National Popular Vote initiative that freelunch mentions above).

[tom p]

"they might lose their fear of it, if it's implemented correctly. they might just grow to love it."

cleek:

Agreed. Which is why I favored Obama's plan over Hillary's (not that I didn't like Hillary's, I just didn't think people would go for it)

Better half a pie, than no pie. Once they have a taste, they just might say, "Give me more."

[Tony P.]

The filibuster is just one of the quaint and curious customs of the Senate. There are others -- earmarks, for instance. Neither the filibuster nor the earmark are ipso facto bad things, unsavory though each may appear. A Senate majority willing to play hardball can probably find ways to play one thing against the other.

The worst feature of the Senate is not the filibuster by itself; it's the combination of the filibuster and the equality of the states. The 41 Senators who can filibuster a bill could represent 10% or less of the population. But low-population-state Republican Senators are probably the most vulnerable to pressure along the lines of "That's a nice water project you've got earmarked there, Bob. It'd be a shame if anything happened to it."

--TP

[Rocky]

Both canidates talk about abolishing "earmarks", why not do it!!!

[Jeff]

While we're on the subject of Constitutional amendments, one that might be popular come 1/20/09: repeal of the Presidential pardon power.

This Boomer is rather happy that Carter pardoned the draft-dodgers, and I think Leonard Peltier deserves a pardon. Perhaps it should be limited to a class of criminals (such as "political prisoners"), but I'm not sure who should define the class.

---------------------

As long as we're asking for ponies, I'd like a Constitutional Amendment that "signing statements" cannot change the fundimental nature or intent of a bill.

[bayesian]

@Tony P. 12:32

"That's a nice water project you've got earmarked there, Bob. It'd be a shame if anything happened to it."

Line.

Re: senators from low population states - in the present Senate the overrepresentation of low population states actually slightly favors the Democrats. Counting Sanders as a Democrat, of the 3 EV states two are Red, four Blue, one Purple; of the 4 EV states three are Red and two Blue.

If (we can hope) Begich and Shaheen win, it will be more so.

[freelunch]

One of the problems with the discussion of earmarks is that certain programs are inherently targeted as certain states. If it's a water project, we aren't talking about the Great Lakes states. If it's heating oil subsidies, it's not for the Sun Belt. There are billions in targeted expenditures every year that are not technically earmarks -- something to remember when Sen. McCain, whose state gets a lot of targeted expenditures, tells us how he is pure as the driven snow on earmarks.

[Hartmut]

I thought of the anti-pardon amendement looking like this:

The constitution of the United States shall thus be amended:

1. The president may pardon only specific persons for specific crimes that they have been convicted of.
1a. Preemptive pardons and/or pardons that do not exactly specify the crime they apply to are nil and void.

2. Pardons shall not be given for crimes committed by or on behalf of members of the executive branch without the consent of the US senate expressed by a majority of 60% + 1 vote.

That would imo prevent the more common abuses. A curb on commuting sentences (as in the Scooter Libby case) could, I think, be done without changes to the constitution but with a "simple" federal bill.
---
tom p, I thought of corruption in the universal sense*, not just selling favors. The abuses of Bush&Accomplices are in my opinion corrupt, even if noone materially profits from them.

*power, not just money, corrupts.

[TSW]

Apropos of nothing, the Detroit News just published an endorsement that begins: "The 21st century is not even a decade old and yet already the hope for an era of peace and prosperity that greeted its dawning has been squandered." It then urges readers to vote republican. Detroit sucks.

[rea]

The president may pardon only specific persons for specific crimes that they have been convicted of.

No, no, no!. The wisest uses of the pardon power in our history have been mass amnesties after civil disorders, starting with Washington proclaiming amnesty for participants in the Whiskey Rebellion, and including the post-civil war amnesties, T. Roosevelt amnestying participants in the Phiilipine Insurrection, and Carter Amnesty for Vietnam-era draft dodgers.

Do you think it would have been a good idea to leave every Confederate solider subject to arrest for treason for the rest of their lives, unless they had already been tried, convicted, and individually pardoned?

[rea]

The president may pardon only specific persons for specific crimes that they have been convicted of.

No, no, no!. The wisest uses of the pardon power in our history have been mass amnesties after civil disorders, starting with Washington proclaiming amnesty for participants in the Whiskey Rebellion, and including the post-civil war amnesties, T. Roosevelt amnestying participants in the Phiilipine Insurrection, and the Carter amnesty for Vietnam-era draft evaders and deserters.

Do you think it would have been a good idea to leave every Confederate solider subject to arrest for treason for the rest of their lives, unless they had already been tried, convicted, and individually pardoned?

[rea]

Detroit sucks.

Well, the Detroit News--the Republican paper--endorsed McCain. The Detroit Free Press endorsed Obama (partially making up for their refusal to endorse Lincoln). The Detroit News sucks, but not Detroit.

[The Crafty Trilobite]

The problem is not the filibuster, it's that checks and balances have broken down. Once upon a time, so I'm told, the House and Senate would fight each other and the President for their institutional prerogatives and would demand quid pro quos for policy concessions -- even when everyone belonged to the same party. This doesn't seem to happen anymore.

Well, not to Republicans. Democrats, I'm sure, will continue to cut each other off at the knees (see Clinton, Sam Nunn and/or Joe Lieberman, emasculation by).

Still, I wonder whether checks and balances no longer make sense as designed.

The House, Senate, and President were designed to reflect the classic Ciceronian divisions of society: plebs, aristos, and tyrant. You could count on the plebs to demand bribes from the other two classes, and you could count on opposition and encroachment attempts between the aristocracy and the tyrant (usually an outsider aristocrat who bought common support with the help of foreign military). Great Britain, for example, had a foreign King, a House of Peers from and for the nativized aristocracy, and a House of Commons for the plebs.

At first, we mostly matched this pattern. Our Senators were shielded from direct election, so in practice they represented and often belonged to the states' big landowner clans. Representatives were mostly lower-class and had to please the people. And the first President was a nouveau riche general who married (very) up. Later Presidents were often generals and/or outsiders (e.g., Jackson, Jefferson, John Adams, Lincoln). They had to build a coalition of leaders and commoners from many states, so they often bypassed the power structures of the Senate's sponsors; even if they didn't, the sovereign states, like big feudal lords, naturally fought Presidential encroachment. The divisions of power reflected natural class or class-like enmities. Therefore, checks and balances were actually used.

But now, the sovereign states have relatively little power or even interest in resisting encroachment -- they are mostly just administrative conveniences. Besides, Senators now stand for election directly, so they don't answer to the State government. So why should they care about federal (i.e., Presidential) encroachment?

Nor is anyone representing the people, at least not their economic interest. Even members of the House need too much money to get elected. So why would the House use its checking rights to fight for working-class tax cuts? They aren't getting elected by the working class, they're elected by their sponsors, who buy them airtime so they can be heard saying the right thing by enough voters. Anyway, they're mostly pretty upper-class themselves. And most Presidents are in the same position.

So these days, it's pure chance whether the Senate, House, and President find themselves at odds, there's no consistent pattern, and therefore the institutional prerogatives are not jealously defended. In practice, since one person makes up his mind more easily than a hundred, the President sets policy and Congress follows. The result is a more efficient government (notice how fast huge bills when through Congress under Bush), but not a balanced one.

If I'm right about this, only a massive overhaul can really fix the problem. We would have to identify long-term, meaningful social divisions and re-create the bicameral legislature to reflect those divisions. For example, maybe we need to reify the urban/non-urban power struggle i.e., a "red" House and a "blue" House who have to work together to get anything done. Or maybe each tax bracket should have its own House. The President, as tyrants always do, can play all sides against the middle.

But changing the filibuster is trivia.

[just me]

Can I just point out that the opposition to the filibuster was in regards to judicial appointments only, not for legislation. The GOP was not in favor of the nuclear option with regard to legislation.

And I think the filibuster serves a purpose-it is essentially the only real voice a minority party has to put the brakes on legislation they oppose. Getting rid of the filibuster would put even more power into the hands of one party which may sound great, if your favorite party is the one in power, but what about when yours is the minority.

I do agree with whoever said the filibuster needs to be a real one again-where the senators actually have to take the floor to filibuster rather than it just be a procedural thing.

I also think that congress needs to take back its war making authority. I think slowly over the last half century congress has put too much power with regards to war in the hands of the president, and I think this is a mistake. If the war is worth sending our soldiers to die for, then congress needs to stand up and own the war or deny the ability to wage the war.

[Scott de B.]

Once the states that represent the majority of Electoral Votes agree to that compact, we won't have to deal with Florida 2000 again.

Unfortunately, not. Most of those states will condition their acceptance of the national popular vote on the acceptance of other states. So the entire system will be initially dependent on the cooperation of all the other states.

Scenario: It is 2016. States with 280 electoral votes have accepted the National popular vote. GOP candidate Palin is trailing slightly in the polls. Her supporters calculate that she would be slightly favored if the old Electoral College were in play. So they sponsor a referendum in Missouri that would pull Missouri out of the National Popular vote.

Election day arrives. Russ Feingold wins the popular vote by 1.5%. But the referendum also passes in Missouri. So not only does Palin get all of its electoral votes, but all of the other states' triggers fire and their electoral votes go back to the old system. Feingold had been campaigning heavily in California, Pennsylvania, and New York to boost his popular vote totals, and ceded smaller states to Palin, who now gets their electoral votes. The Supreme Court gets involved -- can a referendum passed on election day affect the counting of results of other races on that day? After much deliberation, Chief Justice Roberts comes up with the answer: Yes. President Palin is inaugurated.

[MeDrewNotYou]

OT- Its things like http://andrewsullivan.theatlantic.com/the_daily_dish/2008/10/spot-decisions.html#more>this that makes me think Obama shoots out little starbursts when he's speaking to me.

[Hartmut]

rea, what would prevent Congress from doing the non-specific pardon by passing a bill of amnesty? The idea is that blank/blanket pardons could not be issued by a single person with possible ulterior motives (instead of larger group with possible ulterior motives).
Due to lack of precedent there is to my knowledge not even a ban of presidential self-pardon (shortening the "P pardons VP, P resigns, VP becomes P, P pardons ex-P" scenario).

[Gary Farber]

I'm another voice in favor of the filibuster, and not a worshipper at the alter of More Democracy Uber Alles.

History teaches that pure democracy is mob rule, and there are extremely sound reasons that it should be tempered with undemocratic checks and balances. Democracy is great, but it's not the only virtue.

[KCinDC]

Jeff, signing statements already can't change the fundamental nature of a bill. They just indicate how the president interprets the bill, and even that only has an effect if the court interpreting the legislation decides to pay attention to the signing statement rather than considering only what the legislators who actually drafted the bill said.

If the president is using a signing statement to ignore the law, then that's a problem a constitutional amendment isn't going to help with. There are provisions already in the Constitution for handling it, though, if the other branches do their jobs.

[KCinDC]

Can I just point out that the opposition to the filibuster was in regards to judicial appointments only, not for legislation.

Which is why the Republicans' complaint that it was unconstitutional was so obviously bogus, since the Constitution doesn't distinguish between judicial appointments and other appointments.