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February 24, 2010

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Thank you for posting this. It can't be overstated that the Senate has degenerated to a point beyond dysfunction, what with over 250 bills passed by the House with true bipartisan support being held up in the Senate. Either do away with the filibuster entirely, or else make the obstructionists undergo the physical rigors of marathon speeches. Make 'em pee in a jar if necessary, but above all put the obstructionism on graphic display for all to see.

Agreed. However, not enough Dems seem to get it.

Jeez Eric, it got 70 votes, the guy elected in Massachusetts voted to bring it to the floor. That means that over 25% of Republicans voted for it, that is bipartisanship growing by the day.

As far as the filibuster, I suggest you hope they don't change it, sometime in the next 20 years you will be blogging that it is the greatest thing since unsliced bread that the Dems can block this horrific Republican agenda and that they should use any means to do it.

You will be decrying the use of reconciliation to get around the peoples representatives, because that is the side you will take when you believe strongly that an agenda should not be passed.

It is called having an ideology and some amount of principles, both of which you have, to your credit.

Jeez Eric, it got 70 votes, the guy elected in Massachusetts voted to bring it to the floor. That means that over 25% of Republicans voted for it, that is bipartisanship growing by the day.

Jeez Marty, did you miss the part where 8 of the GOP Senators that voted for the bill actually voted to filibuster it? That's kind of remarkable. Or it should be. But for some reason, you completely ignore it.

As far as the filibuster, I suggest you hope they don't change it, sometime in the next 20 years you will be blogging that it is the greatest thing since unsliced bread that the Dems can block this horrific Republican agenda and that they should use any means to do it.

You got me confused with someone else. I am opposed to the filibuster on principle. I would like it repealed with complete knowledge and expectation that it will be unavailable in the future.

Now, if the GOP weren't abusing it so relentlessly - in a totally unprecedented manner - maybe it would be tolerable. But it is clearly broken.

You will be decrying the use of reconciliation to get around the peoples representatives, because that is the side you will take when you believe strongly that an agenda should not be passed.

NO! Reconciliation operates under the theory that 51 votes, or "majority", should rule on basic legislation. That is the will of the people. I am for that.

It is called having an ideology and some amount of principles, both of which you have, to your credit.

Thank you, but I care more for the principle of democracy here. That is why I would also re-work the Senate, and do away with gerrymandering. Even if, at times, both will benefit my ideological preferences.

I'm rules based.

Serious question: how come "fillibuster" doesn't mean somebody has to stand up and talk for hours and hours anymore?

Is it just that the Dems are afraid of even the threat of fillibuster, or was there some kind of procedural change that made the actual talking part unnecessary?

Serious question: how come "fillibuster" doesn't mean somebody has to stand up and talk for hours and hours anymore?

You have to have enough people on the senate floor to constitute a quorum, hence if the minority is filibustering they just need to have one person present and if the majority doesn't stick around, that one person can call for a quorum and if it isn't found then official business ceases, including the filibuster.

The real problem, IIRC, is the "two-track" procedure whereby you can filibuster a bill and still conduct other business. If all Senate business ground to a halt then maybe the filibuster wouldn't be used so often.

IIRC, they also changed the rules some time back. When they reduced the number of votes required for cloture (it used to be 65 I believe) I think they also tinkered with the talky talky part.

But I could be totally wrong on that. Just off the top of the old dome piece.

Given the atrophy of the legislative process (much of it self induced) I should think that in order to reasonably balance the out of control executive branch it is incumbent on us to get rid of the Senate alltogether.

I don't even really care which party started the overuse of the filibuster. The filibuster is something that can only work in a collegial Senate. The Senate is no longer collegial, the filibuster no longer works, that's all there is to say.

The Democrats should have thrown it out at the beginning of 2009. That they didn't is just more evidence that they are no organized political party - every Senator fantasizing about getting to use his own personal veto, instead of thinking about what will happen if the party cannot pass anything and they lose majority control.

Can't muster much to complain about on the Republican side - they're doing what minority parties typically do, and if the Democrats had any sense they would be flogging the Republican refusal to vote for any constructive bills as evidence that they are unfit to rule, and demagoging flip-flops on votes like these as evidence of incoherence. But the Democrats have the majority, just not the guts to use it.

Reconciliation operates under the theory that 51 votes, or "majority", should rule on basic legislation. That is the will of the people.

Above, you noted how the problem of the 41-member filibuster is exacerbated by the fact that those 41 senators may actually be representing far less than 41% of the population. There is a similar problem here: 51 senators may not represent 51% of the population by a long shot, so it's not necessarily the "will of the people" being expressed.

I'm with JA Bob. Let's get rid of the Senate altogether.

I'm fine with that.

I was arguing in the context of reconciliation vs. filibuster. In that instance, 51 is usually more democratic.

But if you want to ditch the Senate altogether, I'm all for it.

For that, you would need to amend the Constitution, and get 2/3 of the Senate to vote to abolish itself.

Not likely.

However, scrapping the filibuster is far more doable.

The Senate's participation in its own disbandment wouldn't be necessary: a Constitutional Convention can be called by the state legislatures, whose proposed amendments could also be ratified by those legislatures.

But don't worry, I'm not laboring under the illusion that the Senate will actually ever be abolished. Although I would find such abolishment preferable to the continued existence of a filibusterless Senate.

Is that right? State legislatures alone can amend the Constitution?

The original filibuster required 66 votes (2/3) to force cloture. The changes, based on essentially all of the arguments being used today, reduced that to 60. Of course, the intent is to ensure that major legislation can't be passed without vigorous debate with a simple majority.

Thats the rule, for a reason.

Is that right? State legislatures alone can amend the Constitution?

Article V:

"The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress..."

I don't think it's ever happened, but it's a theoretical possibility.

I find one of the proposals to deal with the filibuster (or The Tarantino as it is now called by Rachel Maddow) quite appealing because it keeps the debate (no ram-through) but removes the ability to put bills on eternal hold. That proposal is that with each invoking of cloture (with a well-defined minimum time period between each vote) the numbers needed for breaking the filibuster diminish until a simple majority is sufficient. That way the minority can force a real debate on the majority but cannot dictate its will.
---
As for a constitutional convention: However deficient the current US constitution may be, I fear that under the current circumstances nothing better would come out of the attempt to get a new one. It would imo end with either
1) no text a supermajority could agree on
2) something completely unworkable
3) a direct ticket towards a totalitarian system
A new secession would be less harmful (provided that not all nukes end up in Jesusland).

Thanks BTM.

Of course, the intent is to ensure that major legislation can't be passed without vigorous debate with a simple majority.

Thats the rule, for a reason.

Agreed, but it's used differently today. Now it's used to create a threshold for passage - not a threshold for delay and vigorous debate to be followed, eventually, by passage (or reconsideration on the part of lawmakers).

It's off the rails.

Sorry Eric but in this case you have it backwards. In the past the Senate debated things vigorously but were a good old boys club where they simply rarely forced thingd on one another. The filibuster was used rarely because the reason to use it was rare. They had their fights and made their deals mostly out of the public eye, except on the very biggest things. Now, on both sides, ramrodding ideological bills and appointments through without consulting the other side is the norm. So there are many more things that require a filibuster. It is ore important than ever to have it, not more important to change it.

Sorry Marty, but the facts and evidence don't support your conclusion.

Now, the GOP filibusters everything.

Are you really saying that Shelby put a hold on EVERY SINGLE Obama appointee because he wasn't consulted? Huh? He said it was because he wanted more pork for his home state. Was he lying? What an odd lie to tell.

Are you really saying that the GOP Senate contingent filibusters bills that receive wide bi-partisan support in the house because....the bills are overly ideological? Despite the fact that many GOP house members voted for the same bills? Huh?

Are you really saying that the GOP Senate contingent is filibustering bills like pay-go and tax cut bills because...those traditionally GOP items are now partisan, ideological Democratic propositions? Really?

Are you really saying that, as with this post's example, the GOP is filibustering bills that it later votes IN FAVOR of because they were so opposed to the bills on ideological grounds. Even though they voted FOR the bills they were so opposed to?

Look, I know you've got your narrative and you're sticking to it (that the massive spike in filibusters is the result of an overly partisan agenda). But, really, you're missing what's going on here big time.

The evidence doesn't match. Further, not only have GOP Senators actually come out and said that it's in their interest to filibuster everything, regardless of the actual substance of the bill, and not only have Dems made preemptive and ongoing offers to change the bills for GOP support, but even hardcore Republicans like David Frum and Daniel Larison are starting to complain about the strategy.

Are you really suggesting that Larison and Frum are secretly Democrats? Isn't it more likely that they're trying to speak some truth on the subject, cutting through the transparent spin?

It's more important then ever to change the filibuster rules. Our political apparatus cannot effectively govern when there is a 60 vote hurdle in one house to pass ANYTHING (even appointees!) when one party is committed to applying that 60 vote hurder in EVERY instance, regardless of the substance of the bill.

No other democracy in the world uses this model. There is a good reason for that.

Further, can we please just kill the cult of bipartisanship once and for all? It's an illusion - or at the very least, it doesn't work when one party's trying to do it.

I have an alternative proposal. Can progressive bloggers please just stop acting like the notion of "bipartisanship" is being used in good faith by Obama and other Democrats, despite the accumulating mountains of evidence to the contrary? Isn't it clear at this point that the invocation of "bipartisanship" has become an expedient means of appearing to do something while actually accomplishing nothing?

At some point Occam's Razor has to come in to play, doesn't it? If Barack Obama isn't going to get what he claims to be his agenda passed in the same fashion as his predecessor, maybe we have to conclude that getting that agenda passed isn't his goal.

"There is a similar problem here: 51 senators may not represent 51% of the population by a long shot, so it's not necessarily the "will of the people" being expressed. I'm with JA Bob. Let's get rid of the Senate altogether."

The federal government controls 38% of the area of my state, and historically, has not been a particularly good neighbor. The Senate isn't much, but at least it gives us a little more protection against having the representatives from a handful of heavily populated states act like colonial powers.

Of course, the intent is to ensure that major legislation can't be passed without vigorous debate with a simple majority.

Marty, it's the "without vigorous debate" bit that gives the show away. I mean, you would not get many takers for the proposition that "the intent is to ensure that major legislation can't be passed without vigorous debate with a simple majority." Or do you think you would?

Never mind. I'll take your sentence as you wrote it and ask you whether "vigorous" debate is the same thing as interminable debate. (Or, as the filibuster is currently practiced, interminable NON-debate.) If you allow "debate" to be literally endless, then it's a minority veto, not an exercise in persuasion.

No political debate I ever heard of ended by one side admitting that it changed its mind. Not even the classic, formal, Oxford Union style debate ever ends that way. The point of a "debate" is to GET TO A VOTE.

I am willing to debate the proposition that a minority of the Senate ought to have veto power over the majority. But how would we settle that debate -- except by finally, at some point, VOTING ON IT?

--TP

Eric, Yes I am saying all those things (more or less), but you just miss the point. The senators on both sides have escalated, over time, the use of the filibuster because their ability to quietly support each others bills has diminished.

In the past they traded votes, literally, to accomplish day to day legislative things, like pork for Shelby. Now it is monitored and charted and talked about like evaluating the last ice hockey game. So no one gives a vote as easily, and no one allows a bill that they can "use" to pass as easily.

Also, 55 would be better than 59 or 60. Then they would all know they had to be a little more interactive.

I actually think, in a more partisan way, George Will did a pretty good job on this subject here

Eh, Will's piece has the normal factual errors and tendentious slight of hand. Not impressed.

"Never mind. I'll take your sentence as you wrote it and ask you whether "vigorous" debate is the same thing as interminable debate. (Or, as the filibuster is currently practiced, interminable NON-debate.) If you allow "debate" to be literally endless, then it's a minority veto, not an exercise in persuasion."

Vigorous debate simply requires two sides to participate in good faith. Despite all of Erics examples of Republican obstructionism, the factual flip side is the Democrats paid no attention to Republicans, except of course for press consumption, so there has been NO debate, just talking heads calling the Republican ideas tired and old and bad. That represents a complete lack of good faith on the Democrats part, no less, maybe more, than the Republicans. This makes the filibuster and rancor the expected outcome.

Who would expect to get anything less than what the Democrats got? Only partisan Dems who are frustrated because, now in power, they have to follow the same rules everyone else does to enact their agenda.

"sleight of hand"

Despite all of Erics examples of Republican obstructionism, the factual flip side is the Democrats paid no attention to Republicans, except of course for press consumption, so there has been NO debate, just talking heads calling the Republican ideas tired and old and bad.

Marty, although you frequently state this, it is not true. And you never provide ANY evidence. You just repeat it. And when mounds of compelling evidence is presented to refute it, you just say "Despite your evidence to the contrary, I'm sticking with my entirely unsupported statement of events."

It's like the poster child for cognitive dissonance.

And it's absurd. After all, GOP Senators have filibustered bills that were co-sponsored and co-authored by House GOP members. Please explain, if you could, how the Dems tricked GOP members to co-author and co-sponsor bills if they didn't consult them, and take their input, let alone "debate" the merits.

Please answer any of the questions above regarding traditionally GOP-favored bills that were filibustered by the GOP. I mean, if the roles were reversed, and the GOP shut the Dems out completely (which the Dems haven't actually done) and then proposed a bill creating a public option, do you really think Dems would filibuster? And if they did, I'd be calling for their scalps, not defending them and blaming their filibuster on the GOP.

That's ridiculous.

russell: Gary Farber wrote an excellent post on the filibuster. If you're at all interested in it, I'd recommend reading the whole thing.

Summary: Old-style jar & phonebook filibuster only required one Senator to maintain. Breaking it required at least a quorum (a majority) of the would-be filibuster breakers to be on hand at all times. History supports this; filibusters have rarely been broken because it's very difficult to do.

"That's ridiculous."

This cannot be explained to you Eric, I am not sure why. You look and see a bunch of unrelated facts that add up to your conclusion. I am talking about how human beings interact with one anothere to get the desired responses.

Some of your facts on obstructionism are absolutely correct, they aren't complete. The President started the relationship in the first meeting with the Republicans by reacting to a comment by stating "we won". That is perfectly true and the worst thing he could have said to establish any positive working relationship.

It is most like managing a buyout of one company by another. If you walk in the door and say "well we bought you so we are doing everything our way" then you have immediately diminished the cooperation of the management that you need to be successful.

Even when everyone knows that most things will be done your way, you err on the side of implementing as many things as you can from the acquiree to ensure they know you value their input.

I have read here and elsewhere how these people are somehow less mature because when directly insulted they don't like it.

Well, you don't either and I don't and I am not likely to do much to make you look good, whether that manifets itself actively or passively, if you constantly insult me.

I don't dispute any of your "facts", I just come to what, I believe, is better set of conclusions from reviewing them.

But Marty, your conclusions don't match the facts in any rational way.

It's just odd to me.

There has been so much outreach it's sick. They delayed the bill in committee for many many months while a gang of 6-8 discussed compromises. Then they implemented the compromises requested by the GOP (each one of the top 4!!!). Then the compromised bill got 0 votes from the GOP.

GOP leaders wrote a memo saying that it behooves them to vote against the bill no matter what's in it because denying Obama would hurt him politically.

And you look at that and say...Obama said he "won" therefore that's not obstructionism?

As if Bush and the GOP didn't insult the Dems in such ways? The GOP during Bush's presidency was actually much worse in terms of shutting the Dems out (this was a deliberate tactic that Delay bragged about). They upended centuries of precedent and de facto protocol. And yet the Dems did not abuse the filibuster in the same way.

You're missing this story, and I would recommend reading more Frum and Larison, but I don't know that it would do any good.

As I said in the beginning, you have a certain preferred narrative picked out, and the facts be damned.

Also, to be clear, I do not think the GOP is being petty because they have hurt feelings. They are making a calculated political decision: filibuster and oppose every single thing Obama is trying to do, even if his proposals are policies that the GOP traditionally supports. They are doing this to try to make people angry with Obama, and angry at Washington, and thus anti-incumbent.

It is working. It is rational. It makes sense. It is also hurting this country. It is also something that you refuse to acknowledge. That's a shame.

"And yet the Dems did not abuse the filibuster in the same way."

Yes they did in kind, not quite in volume. That is the real difference here, you don't like George Wills view, or mine, or anyone who says Obama made this problem worse. It didn't start the day he got elected, you just started noticing.

Once again you used this line:

It is working. It is rational. It makes sense. It is also hurting this country.

See this is a completely partisan view, "the Republicans are hurting the country because they are stopping the implementation of the Democratic agenda".

I think they would be hurting the country if they didn't. At least I know that I am being partisan, I am on their side, but it doesn't represent the ruination of Democracy as we know it that Obama can't get his way.

As scintillating as this discussion is, and without wishing to stray off-topic, I would be remiss if I didn't congratulate Eric on what I think is a pretty damn clever roundabout musical allusion in the post title. You're getting really good at this.

"Lay me place and bake me pie/I'm starving for me gravy." As it were.

(If I'm wrong about that, of course, feel free to ignore the above.)

Yes they did in kind, not quite in volume.

No, they didn't in either instance, but I'm not sure what you're trying to say anyway. The GOP are filibustering appointees in an unprecedented way. And legislation, of all kind, in kind and volume.

That is the real difference here, you don't like George Wills view, or mine, or anyone who says Obama made this problem worse. It didn't start the day he got elected, you just started noticing.

Actually, no on multiple fronts. I've written against the filibuster and the Senate during the Bush years too.

And it didn't "start" the day he got elected. However, the use of the filibuster rose dramatically, an enormous spike, when the GOP lost the Senate.

See this is a completely partisan view, "the Republicans are hurting the country because they are stopping the implementation of the Democratic agenda".

No, you miss the point, and you miss it because you refuse to actually look at the facts.

When the GOP prevents Obama from appointing ambassadors to countries like Syria for more than a year of his first term, that is not the "Dem" agenda, it hurts America. Because they don't actually object to the nominee, it's just that they want to gum up the works or, like Shelby, ask for pork.

Ditto when they block key Counterterror officials and Homeland Security officials. They are not raising substantive objections. Just saying no for its own sake.

Further, when the GOP filibusters conservative programs, that is not blocking the "Democratic" agenda.

When the GOP filibusters bi-partisan bills co-authored and co-sponsored by Republicans in the House, that is not blocking the "Democratic" agenda.

That's my point. These things hurt the country precisely because they are not purely partisan. They are common sense, non-partisan or GOP-friendly measures.

Think about it.

You got it UK! Off Hunky Dory which I think is his finest FWIW.

"No, they didn't in either instance, but I'm not sure what you're trying to say anyway. The GOP are filibustering appointees in an unprecedented way. And legislation, of all kind, in kind and volume."

Here is the heart of our disagreement, this is simply not true. Democrats raised the bar during the Bush years that they had control, I refuse to go get the Wikipedia explanation of this again. I have put it in twice and never had anyone respond to it.


You are just wrong on this fact which is the underpinning of the rest of your argument.

I am tired of this, I'll concede that it would be great if the Republicans played nicer on some things. You really don't have to agree for me to continue to believe that Reid, Pelosi and Obama have made it worse.

Here is the heart of our disagreement, this is simply not true. Democrats raised the bar during the Bush years that they had control, I refuse to go get the Wikipedia explanation of this again. I have put it in twice and never had anyone respond to it.


You are wrong. And I did respond!

You produced a wikipedia entry that proved the EXACT OPPOSITE of what you claimed, and I pointed that out.

To which YOU never responded.

The wikipedia entry shows the spike in filibuster activity began during the last year/year and a half of Bush's tenure. Which is true, but not what you claim it is.

Why?

Because those dates coincide with when the GOP lost the Senate. Basically, the Party in control of the Senate doesn't filibuster because it has no need. They would be filibustering their own bills. The Party out of power does.

So, starting on the date that the GOP lost the Senate, they started to filibuster like mad. Its use exploded like never before. Which is my argument, NOT YOURS.

see here, please

That links quotes a scholar, Norm Ornstein, from the ultra-conservative AEI think tank.

Says Ornstein: "This is a very real change in the culture of the Senate."

"It is the most striking in history,"

In essence, I'm willing to concede that when the GOP controlled the Senate, the GOP didn't filibuster its own bills - even during Bush's presidency.

However, when the GOP lost the Senate, they did start filibustering (at unprecedented levels), even during the time that Bush was Prez.

It's kind of ironic that the Senate, which was supposed to be the more deliberative and removed from the "passions" of the people body, as opposed to the house, is the one that's gone stone cold bat-sh!t crazy and, essentially, is irreplaceable.

You really don't have to agree for me to continue to believe that Reid, Pelosi and Obama have made it worse.

Marty, this is the absolute essence of why we VOTE: because "debate" is not like a game of chess.

A game of chess is an intellectual argument of sorts. But it's an argument in which one side can convince the other. Lest you think 'convince' is merely a metaphor, keep in mind that most chess games end with one player resigning. In the early days of organized tournament chess, mid-19th century, there were no time limits on games. One of the early "world champions" was a man whose main ability was to out-sit his opponents. So the chess clock was introduced, because even chess players recognize that life is short.

In a "debate" or "argument" that is less structured than a game of chess, it is utterly fantastical to expect one side to be convinced by the other. Even after everything has been said and everybody's had a chance to say it, opinions will still differ.

So we VOTE. We count up how many people are pro-whateveritis, and how many are anti-whateveritis, and we do the thing the majority wants. The minority doesn't have to like it.

--TP

Marty: The President started the relationship in the first meeting with the Republicans by reacting to a comment by stating "we won". That is perfectly true and the worst thing he could have said to establish any positive working relationship.

Two suggestions for worse things to say:

Let me put it to you this way: I earned capital in the campaign, political capital, and now I intend to spend it.

or

Go f*ck yourself

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