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Filibuster showdown in the Senate: What’s so terrible about majority rule?

REUTERS/Kevin Lamarque
Senate Majority Leader Harry Reid states that Senate Republicans have turned "advise and consent" into "deny and obstruct."

Senate Majority Leader Harry Reid claims to have the votes to change the current filibuster rule, and is threatening to use them. Senate Minority Leader Mitch McConnell says Reid will go down in history as the worst leader ever if he goes through with his threat.

Reid and McConnell each had the other’s position when George W. Bush was president. Back then, Democrats were using the filibuster to stall Bush’s appointments and it was Republicans who were threatening to employ what has come to be called the “nuclear option.”

A rare caucus of the entire Senate is scheduled for this evening (5 p.m. Central time) to see if  a compromise might be reached to to avert the terrible blow that majority rule represents to all that senators hold dear.

The change that Reid has in mind would not allow a simple majority of senators to pass a bill nor to confirm nominees to federal judicial positions.  The ability of 41 senators to permanently delay a vote on any of those matters would remain. But if Reid follows through with his threat and can get 51 of the Senate’s 55 Democrats to back him up, the rules would be changed to allow a simple majority to approve nominees to cabinet and sub-cabinet positions. Reid describes it as allowing a president to have whom he wants on his own “team.” He has in mind several appointments that have been stalled for weeks or months.

McConnell says if the rule change goes through, it will change the meaning of the constitutional language that requires the Senate to “advise and consent” to appointments, to a rule of “sit down and shut up.”

The current filibuster rule requires 60 votes to invoke “cloture” and end “debate” and force a final up or down vote on pretty much any matter except a budget bill. We are in a period of record-high use of the filibuster to stop bills and block appointments, which is among the trends that contribute to gridlock.

A growing bloc of mostly younger Democrats have become supporters of a filibuster-rule change, of which there are various versions. At the beginning of the current session, Reid flirted with the idea of a substantial rule change but instead worked out with McConnell a couple of minor tweaks in the rule and thus avoided a major showdown.

McConnell says that this compromise came with a promise from Reid that their deal would settle the issue for this session, which makes Reid a promise-breaker if he goes ahead with a bigger change.  Reid replies that Senate Republicans have turned “advise and consent” into “deny and obstruct.” McConnell says that Reid apparently “doesn’t want any debate at all” over nominations.

Pretty much every time an opponent of a filibuster-rule change uses the word “debate” in describing the value of the filibuster, that senator is lying. In fact, as you may know, the filibuster rule, as currently practiced, has almost nothing to do with “debate,” if by “debate” one means a discussion in which senators use facts and arguments to try to persuade one another. In fact, when a senator informs the body that he wants to filibuster a particular bill or nomination, the matter generally disappears from the floor unless the majority thinks it can muster 60 votes to pass the bill.

Another common falsehood about the filibuster is that it was part of the constitutional framework for checks and balances, preservation of minority rights or the Framers desire to use the Senate as a “cooling saucer.” (The “cooling saucer” anecdote and its lack of any relationship to the filibuster is described here.)  The U.S. Constitution doesn’t mention the filibuster. All it does is give the Senate control over its own rules. The Constitution does require a supermajority for a couple of things (ratifying a treaty, convicting a president of an impeachable offense, referring a constitutional amendment to the states) but not to pass a bill nor to confirm an appointment. The filibuster rule simply imposes an extra-constitutional supermajority requirement on almost any bill or nomination if 41 senators are willing to filibuster it.

A radical idea?

One crazy, radical idea that has been floated since the mid-1990s by Sen. Tom Harkin of Iowa would ensure full debate and also allow a bill to eventually pass with a majority vote. It seems extremely reasonable to me (if, in fact, the filibuster really had anything to do with debate) but is considered so radical by some senators that the American experiment in democracy would end if it was ever adopted.

Here’s how the Harkin proposal would work: If a bill came to floor and someone wanted to “debate” it, it would require 60 votes to end the debate for the next two days. If, after two days, there was still a substantial minority that felt it had not yet expressed all of its arguments, it would take 57 votes to force a final vote. Two days later, the cloture number would drop to 54 votes. After two more days of debate, the number would drop to a majority, 51 votes.

Once you adopt this principle, you could certainly fool around with the of days and votes required, but eventually a majority could pass a bill. When senators say (as they often do) that they don’t want to turn the Senate into nothing but a smaller version of the House, one of the main things they have in mind is that in the House, a majority can pass a bill.

Like Reid and McConnell, the great majority of senators seem to feel differently about the filibuster depending on whether their party is in the majority or the minority. But Harkin first introduced his rule when the Democrats were in the minority. Harkin likes to quote the famous early-20th-century Senate giant Henry Cabot Lodge, who said: “To vote without debating is perilous. But to debate and never vote is imbecile.”

Harkin is retiring next year but a cadre of younger members, all Democrats at present, have taken up the long-term cause of filibuster reform.

Small loophole

Back to this evening’s caucus. The issue will not be thorough Harkin-like filibuster reform but a relatively small new loophole in the filibuster affecting only executive branch appointments. The chances strike me as high that the parties will negotiate a deal to avoid changing the rule. Presumably such a deal would require the Republicans to allow a final vote on some specific list of the nominations they are currently blocking by filibuster.

If such a list does come up for negotiation, Todd Jones, the current U.S. attorney for Minnesota who has been nominated to head the Bureau of Alcohol, Tobacco and Firearms, could be in play. As MinnPost Washington reporter Devin Henry wrote on Friday, Jones has been heading that bureau on an acting basis but his confirmation was met with firm Republican resistance.

If negotiations fail and Reid makes good his threat, he will have to use the absurdly-named “nuclear option.” The current Senate rules say that it takes a two-thirds vote of the Senate to change a rule. This is in the Senate rulebook but (like the filibuster rule) not in the Constitution. A long-running argument suggests that, in the absence of any constitutional language to the contrary, a majority of the Senate can change a rule (including — don’t get dizzy now — the rule that it takes a two-thirds vote to change a rule). If Reid decides to force through his new version of the filibuster rule, he will have to take this path. (There is, by the way, no guarantee that he will get 51 votes for a new filibuster rule. Some Democrats oppose the idea.)

But changing the rules by this means is considered so aggressive that it has been deemed the “nuclear option,” which compares it to a nuclear war declared by the majority on the minority and, as such, would set off total warfare between the parties.

Comments (16)

  1. Submitted by Gregory Stricherz on 07/15/2013 - 08:51 am.

    Which is it?

    The change that Reid has in mind would not allow a simple majority of senators to pass a bill nor to confirm nominees to federal judicial positions.  … But if Reid follows through with his threat and can get 51 of the Senate’s 55 Democrats to back him up, the rules would be changed to allow a simple majority to approve nominees to cabinet and sub-cabinet positions.

    Which is it—”would not allow a simple majority” or “would be changed to allow a simple majority?” Can’t be both.

    • Submitted by Steve Titterud on 07/15/2013 - 09:07 am.

      Read carefully…

      …and compare, from your post, the

      “not allow a simple majority…to confirm nominees to federal JUDICIAL positions” and

      “allow a simple majority to approve nominees to CABINET and SUB-CABINET postions.”

      The difference is in the kind of appointment: judicial vs. cabinet (administrative).

  2. Submitted by Paul Udstrand on 07/15/2013 - 09:02 am.

    Harkens Radical?

    Even Harkens is bending over backwards to preserve the filibuster. 8 days to pass legislation that has at least 51 votes? Here’s what the senate should do. First, require a debate, not just a threat to debate. Second, put a time limit on the debate, 48 hours, and it has to be continuous. After 48 hours a simple majority can end the debate and force a vote.

    I know, people are afraid that legislation they don’t like will get passed. Well, that happens anyways and you have to remember, bad legislation can be repealed. We have to stop pretending every piece of legislation that passes is written in stone forever and always as long the universe exists. There’s too much emphasis on stopping undesired legislation rather than making good legislation, it’s an attempt to nullify elections.

  3. Submitted by Paul Brandon on 07/15/2013 - 09:20 am.

    The Republicans have decided

    to become the party of Christian white males, which means that they will be the minority party for the foreseeable future.
    Given this, it is to their advantage to be able to prevent the majority from passing legislation; they have given up hope of passing any legislation themselves.

  4. Submitted by Steve Titterud on 07/15/2013 - 09:50 am.

    Mitch McConnell, the shape-shifter !!

    Oy, those Republicans – how soon we forget what they were doing only a few years ago. And, it would seem, how soon THEY forget, too !!

    In 2005, when Republican Senate Majority Leader Bill Frist proposed eliminating the filibuster rule from the Senate’s procedure in judicial appointments, the Leader was quoted,

    ‘Asked about the so-called “nuclear option” of changing Senate rules to bar filibusters against executive nominations, Mr. Frist said that would be a “constitutional option.” ‘

    “It’s consistent with the Constitution, where we are as a body to give advice and consent, and the only way we can give advice and consent is an up-or-down vote on the floor of the Senate.”

    From the Washington Times, February 2005 (http://www.washingtontimes.com/news/2005/feb/14/20050214-121801-4700r/?page=all)

    Sen. McConnell was a front-line supporter of Frist’s proposal !!

    NOW, however, things are different, aren’t they ?? And so McConnell says, “I’m glad we didn’t do it.”. He has flipped to calling even this lesser rule change the “nuclear option” (no longer the “constitutional option”, as only a few years ago). Further, he says that if current Majority Leader Reid gets a rule change directed at administrative appointments, he “is going to be remembered as the worst leader here ever”.

    If you don’t like Sen. McConnell’s views, just wait a little while. They’ll probably invert.

    It’s not that the Democrats don’t ooze their way from one position to its opposite. They exercise this same skill set, too. But no one can put on a drama like these Republican senators !!

  5. Submitted by Neal Rovick on 07/15/2013 - 10:29 am.

    Why wouldn’t the Republicans object? it:

    * defends the interest of a party that seems determined to reinforce it’s minority status

    * reduces the effective governing of the majority party

    * is part of the ideal of “drowning it in a bathtub”

    * increase the possibility of screw-ups by the governing party

    * plays to the “disfunction of government” meme

    So of course, filibuster reform is nuclear.

  6. Submitted by Paul Brandon on 07/15/2013 - 10:35 am.

    The next problem

    is the arcane (and none constitutional) Senate structure of committees and rules which can prevent a bill from even receiving a vote by the full Senate. Without a major reform, eliminating the filibustero (Spanish for pirate) will be only a monhor improvement.

  7. Submitted by Rich Crose on 07/15/2013 - 11:06 am.

    Can’t these guys think out of the box?

    Make the change temporary and have it expire at the end of the legislative session. You get your judges and cabinet heads and preserve the option for the next legislature.

    Duh!

    Sometimes I think they’re dumb as dirt.

  8. Submitted by Peder DeFor on 07/15/2013 - 11:37 am.

    Go Ahead and Change

    I’m fine with changes to the filibuster rules. The key question for Dems and Reid in particular, is how comfortable he’ll be when he’s on the other side of the issue. The White House often changes after two terms, which means there is a good possibility of a GOP president in four years. Are Dems ok with giving a rubber stamp to a future Republican president? They better be, because that’s what they’re doing right now.
    Which, as I said, is fine with me. I’m very curious what kind of nominees a President Paul would put forth.

    • Submitted by Paul Brandon on 07/15/2013 - 02:42 pm.

      Note that the Republican objection

      is not to the individuals (who Senate Republicans described in favorable terms) but to the offices themselves. NO appointee as Secretary of Labor would be acceptable, since they object to the whole concept of a Department of Labor.

      • Submitted by Peder DeFor on 07/15/2013 - 04:37 pm.

        Objections

        Well, I do too. Organized Labor has quite enough influence as it is, there is no need to give them a whole department. We can wipe out the directors of HS and Commerce too, without bothering me.

  9. Submitted by Virginia Martin on 07/15/2013 - 12:02 pm.

    filibuster

    I think the Democrats should take their chances on getting a majority vote on issues. It’s hardly a rubber stamp. It stops Congress from bringing a halt to legislation and to confirmations with a minority–actually only one person or a few people.
    The key is to get these obstructionists out of office.
    People need to understand the real issues behind filibusters and the like.

  10. Submitted by Bruce Pomerantz on 07/15/2013 - 09:27 pm.

    Why stop there?

    Let’s also change the ridiculous rule that permits one (1) senator to ANONYMOUSLY (i.e., cowardly) place a hold that prevents action on a motion. This too is often applied to individuals who have been nominated for a position. At least the so-called filibuster requires 41 individuals indicating their intent to stop action. But a super minority of one? Common sense, where art thou?

  11. Submitted by Mike Worcester on 07/16/2013 - 09:19 am.

    If You Want to Filibuster

    ….then talk.

    Stand up at the podium and speak. Without stopping.

    Don’t be a chickens–t and just make a phone call threatening to talk. Show how much you care about this and talk.

    Do what Rand Paul did recently. Or Wendy Davis did recently.

    Channel your best Strom Thurmond and let the world see how absurd truly absurd this entire argument is.

    Oh, and for those who argue that this is “tradition” and well, that’s why we should keep it; just because something has been done for along time does not make it right or worthy of retention.

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