Well, sue me, Jon, I guess I’m an anti-progressive “small-c” conservative.

I support the principle of the good-faith filibuster, as a brake on the abuse of majority power. I might think differently if two corrupt and undemocratic Parties didn’t have a top-down death grip on the Congress, but they do. Yet even if I respected or trusted (which I don’t) the powerful few in Party leadership today who are allowed to dominate the Congress, whether it’s a Republican or Democratic majority, no small group should be allowed to so unquestioningly hold the ‘proxy’ votes of our federal representatives.

Until our campaign financing system is cleansed of corporate bribes, at least the filibuster gives us the occasional opportunity to stop some of the worst Congressional abuses (or would have – MCA, PAA, FAA, etc. – if it had been utilized by a principled minority). And considering the effective foreclosure by the majority Party (the Speaker) in the House – via the Rules Committee – of almost all genuine debate or amendment on the House floor on legislation, without a filibuster there to stop the stifling of democratic will, such a future in the Senate looms if the filibuster is weakened or repealed there. [By the way, how did the inability to filibuster in the House magically enable wonderful "progressive (health care reform) legislation to be passed" in that body, exactly?]

I’ve said it before, I’ll say it again: the present-day abuse of the filibuster is a symptom, not the cause of the problem. The cause is corporate-financed Parties and candidates who are now effectively immune to public opinion, and doing the bidding of their paymasters, not their constituents. No amount of “higher standard-holding” lobbying is likely to force that behavior to change, absent public financing of campaigns for federal office.

I don’t think “progressives” can be defined as people opposed to deliberative, democratic debate. Democratic debate which, in essence, is what good faith use of the filibuster is intended to promote (in addition to enabling the establishment of the occasional obstacle to very ill-advised policies or nominations).

I agree. History is on our side. The Senate functions as a kind of House of Lords. The don’t initiate much, they exercise the spoiler’s role a lot, they water down a lot of legislation, they aren’t representative. The filibuster is undemocratic. In a parliamentary system, the party that is elected gets to implement its agenda. Even if we do away with the filibuster, we’ll never have as efficient a system as that. But getting rid of this anachronism will relieve our political sclerosis to a degree.

then i’m not a progressive.

fix, don’t nix, the fillibuster.

There’s a perfect of example of how minority rule can destroy a state. It’s called “California”, where the Rethugs never have to elect more than a 1/3 plus one of the legislature to obstruct necessary reform.

Thanks to Howard Jarvis and Prop 13, things like raising taxes to accommodate the states natural growth are subject to a 2/3 legislative vote.

The most recent manifestation of minority rule is being played out on the campuses of the University of California. UC is raising fees and tuition on students by 32%, who are even now responding with militant protests, including the takeover of administrative buildings with their personnel locked inside. (The UC system used to be free to attend until Governor Reagan came along.)

You know what they say about Calif taking the lead in national trends. Given the current makeup of the Calif GOP, they will never vote to raise taxes on anything ever again, forcing the state into bankruptcy. The national Rethugs have adopted the same strategy, fulfilling their promise to drown the US government in a bathtub (except, of course, where it benefits the wealthiest 5%).

If Harry Reid and the other Democratic Senators allow that to happen because of their attachment to archaic set of rules, then they’ll be just as culpable as their Rethug counterparts in running this country into the ground.

a *working* fillibuster is not minority rule. it’s a way for a minority to slow the process down and draw public attention to an issue via extended debate (the real kind).

jmo, i have no legal or constitutional argument.

You can have a rule requesting say an extra three weeks of debate and still eliminate something the founders did not want part of the Senate.

Something the Founders were much more explicit about not wanting, and even openly feared, in the Senate (and House) were Party factions that empowered themselves at the expense of the national interest – the full horrors of which have come to fruition as predicted, but which most now basically accept as “just the way it is.”

The filibuster may well be the only real check left on the Party factions that completely dominate our Congress today. And it may well turn out to be the height of folly to remove that remaining check (especially with the same Party controlling both the White House and the Congress), and perhaps even to try to fix it, as selise suggests, without simultaneously, or first, successfully reforming the corrupt Two-Party lock on power, and the way elections are financed.

How would an extra 3 weeks of debate rule work, in practice? Wouldn’t it basically mirror the filibuster rule?

I think if Harry Reid calls the bluff of the bluffers after allowing full and fair debate and amendment on this bill (I hope), fears about the (posturing) Democratic threats to filibuster may prove to have been unfounded, as they were on the motion to proceed in the end. [Anyone notice how quiet Lieberman became before the motion-to-proceed cloture vote? He was obviously spoken to...] Those filibuster threats are negotiating tactics at this point, nothing more, and Harry Reid doesn’t have to humor them, if he exerts his independence, in this non-Parliament system, from the White House.

So you are not a progressive. You think maintain the status quo is more important than the possibility of progressive change. Definition of a conservative.

And it in no way would mirror the filibuster. As it is currently set up the filibuster is a veto preventing any bill without 60 from every passing.

And how exactly to do you think you will get public funding of elections while you have the 60 votes super majority to stop any such law?

You are hilarious. You are a single payer supporter who also supports the filibuster. You are your own worst enemy. You will never get 60 for that.

i said i favor fixing the filibuster so that it would function as “a way for a minority to slow the process down and draw public attention to an issue via extended debate (the real kind).” i never said i support the filibuster as it currently exists and is used.

fact is, that before the beginning of the 111th congress i advocated, in fdl comments (i’ll go find a link if you’d like some proof), that the senate rewrite their filibuster rules.

i also remember the progressive calls for a filibuster of alito’s nomination a few years ago.i don’t remember anyone saying that i couldn’t be a progressive and support the filibuster then. if we call for the end of the filibuster only now, when it suits us, unlike a few years ago when progressives were all about protecting the filibuster and indeed using it, then we will have no one but ourselves to blame if the rest of country thinks we’re a bunch of elitist hypocrites.

I did say that instead of a gang of 14 they force Frist to restore democracy with a simple majority. The outcome of Bush getting his way and the Republicans still getting to keep the filibuster was the worst of all worlds.

unfortunately the filibuster can’t be restore, you can never turn back the clock on a gentlemen’s agreement. Finally the filibuster for it’s few uses has 90% of the time been the enemy of progressives. For the vast majority of its history it was used nearly exclusively to stop anti-lynching laws and civil rights legislation.

i promise not to call you a hypocrite then. just the people who argued for the filibuster during the alito debacle and argue against it now.

but, jon, i don’t know why you call it a “gentlemen’s” agreement. it’s a formal senate rule, and they can rewrite their rules.

Thanks for telling me who I am, and what I support, Jon. I’ll make a note of it. [What the hell is the point of this amorphous labeling, exactly, anyway? Make you Proud to be A Progressive? If so, congratulations, I guess, on your self-defined exalted status.]

If your rule wouldn’t mirror the filibuster, then how would it work? Unanimous consent? Automatic trigger? Majority leader dictate? What are you actually proposing?

And how exactly to do you think you will get public funding of elections while you have the 60 votes super majority to [prevent debate or a vote on final passage on] any such law?

By using the same strategy underway right now to keep a public option in health care reform, or to get the Paul/Grayson Fed Audit bill passed: using the leverage we have, little as it is, in partnership with insiders who are willing to buck their Party leadership. Beginning, in this case, as a probable departure point, with the two publicly-financed-campaign bills already introduced last March in the House and Senate, on a bipartisan basis (including the House Democratic Caucus Chair and the second-ranking Democrat in the Senate). [There are personal and professional benefits awaiting incumbent legislators freed from the chains of reelection fundraising, as many understand, that go along with the obvious drawbacks to incumbents.]

I went into what you might call a fair amount of detail about the problem, and a possible solution and way forward here. If that argument makes me a supporter of the Party-dominated “status quo,” the definition of status quo just got redefined out of existence.

For the vast majority of its history [the filibuster] was used nearly exclusively to stop anti-lynching laws and civil rights legislation.

That seems to be the conventional wisdom. This 2006 book’s researched conclusions appear to disagree, for cause, with that conventional wisdom:

Wawro and Schickler thus look to history to gain a better understanding of how institutional rules and procedures affect legislative policymaking. By extending their analysis of Senate obstruction back in time, they allow rules and precedents to vary and thereby gain better analytical traction on their puzzle. [...] In the process, they shed new light on Senate history and on the recent controversy over Senate confirmation of judicial nominees.

[...]

Wawro and Schickler come to a counterintuitive conclusion: majorities were paradoxically better able to rule in the 19th century Senate than in the contemporary Senate, despite the lack of a cloture mechanism then and the existence of one now. They argue that narrow majorities in the 19th century could threaten to enact precedents that would restrict obstruction, and these threats led legislative minorities to exercise self-restraint. Wawro and Schickler contend that these threats were credible in part because 19th century senators could look to the House of Representatives for an example of how floor majorities could use procedural [*489] rulings to limit obstruction (pp.62-65). They argue that this strategy was also a viable option in the Senate.

[...]

In their study of the 19th and early 20th century Senate, they strive to document that a sustainable majority was never thwarted by minority obstruction on a significant, salient matter. Southern filibusters were not the cause of the Senate’s failure to act on civil rights because not even a simple majority of senators supported cloture on any civil rights measure considered between 1917 and 1964 (p.263). Although a minority successfully delayed the passage of the Bank Bill of 1841, the minority Democrats permitted the passage of the Whig program in the end (p.73). They argue that the Federal Elections Bill of 1891 was not defeated by minority obstruction, but by the unraveling of majority support for the bill as members of the majority party defected (p.77).

This is a bold argument, and it stands in opposition to much scholarship on the Senate, including the Binder (1997) and Binder and Smith (1997) accounts of institutional development. Wawro and Schickler do not view the Senate’s failure to adopt majoritarian procedures as a “path dependent” consequence of the lack of a procedural motion enabling a simple majority to close off debate. Instead, they contend that Senate rules have persisted because Senate majorities prefer to keep them that way. – Frances E. Lee

Jon, I’m with you entirely on this. The constitution provides for decisions by majority vote in the Senate. From my point of view the filibuster is a plain violation of the language of the constitution, It’s entirely improper and undemocratic.

I support the filibuster. [Call me what you will]. It’s a parliamentary rule adopted by the Senate – notice that in the House it’s illegal, for their particular reasons – but its use has changed over the past 200 years. Instead of using it to postpone – sometimes by decades – laws, it is now used by party members (in the majority and minority) when it’s convenient.
Instead of tossing the filibuster, amending it is a better idea. It used to be that 66% votes were needed, now 60%, but we should lower that to 55%. Or, make amendments to ‘reconciliation’ in order for the Leader to use that method of passing bills.
Filibusters should be kept but relegated to a back bench of legislative moves.
Legislatures aren’t democratic; the people who know the rules best are the ones who can win the arguments.

there’s a gazillion things that could be done — like requiring the minority (40 members or whatever number you choose) to be continually present for debate during their filibuster. that would serve to have a temporary break/delay — but would not prevent, in the end (and it wouldn’t be decades, years, months or even weeks) rule by the majority.

i don’t know why this has to be a black/white issue when there are so many possibilities. does not the constitution say the senate gets to write its own rules? if so, why can’t a better rule be written?

I don’t think the “health insurance reform” issue will be over with a filibuster, or even without one, and therefore I’m not as afraid of it as Jon Walker is.

Nor do I imagine that failure to support a “health insurance reform” package which mandates that everyone either be enrolled in a depleted Medicaid or sign up for junk insurance in 2013 counts as a “litmus test” for one’s status as a “progressive.”

i don’t know why this has to be a black/white issue when there are so many possibilities.

This has to be a black/white issue because the whole effort here, in the spirit of rabid conformism, is to whip up support for a weak-tea insurance-industry bailout of a bill among people who, deep down inside, want no such thing.

Thoughtful suggestions, 1murillo and selise.

It might help clarify people’s thinking about this to recognize that when many refer to ending the “filibuster,” they are actually talking about removing the need [the ability, really, as compared to when cloture votes didn't exist] for the Senate to use a “cloture vote” (needing 60 votes) to end a filibuster.

What I’m getting at is that the nature of the Senate, by design, is unlimited debate. And that, I think, is what those decrying filibusters are really trying to change (perhaps without realizing the import of what they are doing). Because so long as unlimited debate is the baseline Senate process, there needs to be some way to close off debate in order to proceed to action. Right now, on the vast majority of legislation, unanimous consent agreements create shortcuts past all the debate that would otherwise be happening. [Example: "motions to proceed" rarely require a cloture vote (which the controversial health care bill did require) - the Senate in fact, unnoticed by many, instead generally unanimously agrees to immediately proceed to debate measures.]

Somehow I don’t think we’re going to see the Senate agree to a situation where it only takes, say, 67% of Senators (instead of unanimous consent) to agree to bypass regular order – they would all lose the power each individual Senator now holds.

That default position of unlimited debate has led to rules where, for example, even after cloture has been invoked, 30 more hours of debate are required, post-cloture, unless unanimously waived (as those 30 hours were waived, by unanimous consent the preceding Thursday, on the Senate health care bill post-cloture on the motion to proceed), before any further action can commence. Just using up those required 30 hours after every cloture vote can be a form of filibuster that the present rules of the Senate can’t stop, if one Senator insists. Chris Dodd used that process to good effect during his attempt to stop the FAA immunity provision last year. Such stalling works particularly well when the Senate is up against a recess or a sunset, or another hard and fast date for action.

Another thing that the instinct to quash the 60-vote cloture vote overlooks, I think, is the current paucity of real debate in the Senate, all this vaunted “unlimited debate” ability notwithstanding. Harry Reid, as a rule, is extremely impatient to “get the work done” and constantly and regularly tries to prematurely hasten the final passage vote on legislation, even if it means no amendments get offered on the floor. [Because the Democrats refuse to simply open the floor to any and all germane amendments, and Reid and McConnell fail to "agree" on a limited list of pre-selected amendments for consideration under unanimous consent.] And then Reid likes to blame Republicans – unhappy about not being able to amend a measure – for withholding unanimous consent to waive debate, forcing Reid to file a cloture motion instead. It’s a two-way street, and I don’t think the Democratic majority is blameless here.

Too-often, avoiding (politically) “tough votes” is the reason the majority Party tries to foreclose genuine debate and amendment on the floor (aka, foreclose representative democracy), which prompts a predictable reaction from the minority, who have no interest in protecting the political fortunes of the majority Party. Meanwhile, worthy amendments all too often get left on the shelf, unexamined. The absence, so far, on the floor journey of the Senate health care bill, of this routine of trying to foreclose open amending, is why I’m hopeful that this bill at least, will be left to the democratic will of the Senate, instead of being manipulated by backroom power plays by the Parties. It may be a slim hope, but until it’s gone, it’s there, and leaving it to the Senate does get the onus off Reid’s back, until the final decision about reconciliation has to be made.

To my mind, the successful cloture vote Saturday night should have eased fears about the 60-vote cloture motion’s ability to stop this bill in its tracks, but for some reason the opposite has occurred. Perhaps because people don’t recognize what a complete Party tool Blanche Lincoln, for example, is, and how frequently Mary Landrieu talks a good game in an attempt to win bribes for Louisiana, only to knuckle under to Party leadership when it really counts. [To the extent that, in my opinion, if those two are humored by Reid/Obama behind closed doors, it's because Reid/Obama want what Lincoln/Landrieu/Nelson, etc., want, and not because their present, pre-floor-consideration threats to vote against a final cloture vote are at all credible.]

Oh yeah? I live in California and I pay A LOT of taxes. California has plenty of tax revenue. State income tax. Property tax. Sales tax. Fees and the Lottery. Many states that are solvent take in LESS revenue than California. The problem with California is ridiculous, wasteful programs and good old fashioned CORRUPTION. I’m a medical contractor that has worked within and for the state system and I know what of I speak. I’m a card carrying liberal but I have just seen too much.

Gyawd. All this endless Parliamentary wankering. No wonder the U.S. is falling so far behind other countries in economic development and social justice. The filibuster (and all its perambulations-cloture etc.) is a perfect metaphor for the nation’s inability to gain traction on all its problems. We are stuck in the mud, folks.

Factions? What should we call the trifecta of Wall Street, Big Energy and the Health Insurance Cartel? That’s a super faction if there ever was one. It’s the 21st century. We can’t keep conducting affairs as if it’s 1790. I’m aware of the need to keep a check on interest group excesses. But that is what the separation of powers, and a bicameral legislature was all about. It was never the intention of the Founders to create a paralyzed Senate.

This nation needs to get moving. Health care, energy, the economy, education, technology. These are all gears that need to work together. The greater danger at this point is to iconify inaction. We need to let out the clutch. The filibuster is a crowbar jammed in the mechanism.

I’m aware of the need to keep a check on interest group excesses. But that is what the separation of powers, and a bicameral legislature was all about.

Was all about, being the operative word and tense there, GDC707.

That’s my point when I speak about a Party-dominated Congress, and the control our representatives have ceded to a powerful few politicians atop the Parties – which, in the case of the Democrats right now (as with the Republicans during the Bush Reign), means ceded to the Executive Branch White House political shop, separation of powers, and bicameral legislature, be damned.

It’s far, far easier for “Wall Street, Big Energy and the Health Insurance Cartel” to control (bribe) a few extremely powerful Party leaders, and thereby, through their grip on their caucuses, practically the whole damn Congress, than to control 535 different, independent-thinking members individually.

And I’m sorry, but democratic self-government – particularly in a nation this size – is going to consist of a great deal of “parliamentary wankering” simply to ensure that the voice of each one of our federal representatives is given a full and fair chance to be heard. Doesn’t mean the Senate was designed, or is, or should be “paralyzed” by its unlimited debate structure, but “parliamentary wankering” happens to comprise a good portion of the democratic process. And I, for one, would’ve preferred a lot more “inaction” in the run-up to the invasion of Iraq, and before passage of the MCA, or TARP, in lieu of the “gears” that somehow meshed flawlessly when Congress popped the clutch in an almighty hurry to gain “traction” and get moving on all three of those propositions.

Washington, D.C. is in need of a great deal more democratic process than has been in evidence of late, given its bribed-to-the-gills-with-corporate-largesse disincentives to act in the best interests of the American people. But it’s not likely to get it unless and until we can remedy the Party-enabled and Party-enabling corrupt campaign financing system that’s the real “crowbar jammed in the mechanism” of America’s representative democracy.

OK, you make some good points and I’ll give em some thought. It’s late and I don’t have any fight left in me. G’night Pow.

Could’nt sleep. So, your main beef is two-fold 1) All the money controlling Congress and 2) the top down, party driven process that cedes too much power to a few party leaders who are easily corruptible, thereby nullifying the power and influence of the 535 members of Congress. Hmm. Well, a Congress without parties IS a lot closer, I believe, to what the Founders envisioned. But for some reason it seems that humans always clump into the Party system. It has been that way from almost Day 1 after ratification of the Constitution and, as far as I know, every democracy worldwide inevitably falls out of solution into some sort of Party alignment. What is your vision of how it should be? I want to make sure I understand it. And is it practical? Plus every grand reform that I think your vision would require would inevitably run smack into the . . . filibuster. We’re back to that.

I too would have rather seen more deliberation before the invasion, TARP, etc. But that’s kind of the point . There was’nt and it seems like Dems almost never stand up and use it. I suppose a less strict top down Party structure would have allowed for more deliberation and that might have stopped or slowed down the stampede to war. But with no party structure how would you ever get anything done? Herding cats is hard enough WITH the party leadership control. And as I was getting at before, it seems like Progs hardly ever use these delaying tactics while the Repubs use them regularly and with impunity. It may feel good to think the filibuster sits there like a sword of Damocles that we can use in case the bad guys try to do something REALLY bad. But in practice the sword is almost always used on us.

In past months I’ve written a whole bunch of diaries calling for the end of the filibuster. They’re most easily accessed from here, but most of them are available at FDL also from here. Some of them have exchanges with selise on the filibuster.

Sorry to be late getting back to you, GDC707. Thanks for pausing to consider the points I made, and responding so thoughtfully.

What is your vision of how it should be? I want to make sure I understand it.

I went into much more detail than you probably want or need on the topic here – also linked in my reply to Jon @ 13.

But the short version is not to end coalition- or faction-building. Rather, instead of today’s overly-rigid and powerful Congressional Party structure, I envision self-directed, shifting factional groups that come together, and move apart, over time, depending on the issues of the day, and based on genuinely-shared interests, as opposed to today’s practice of being bribed to mindlessly vote a certain way, on command, in exchange for Party campaign funding or perks.

As I touched on in my Seminal diary on this, the lack of core principle underlying the (Congressional) Democratic Party label today seems to explain much of the ‘herding cat’ problem. Whereas many or most Congressional Republicans are obviously still strongly motivated by hatreds and racism, and shameless corporate servitude, even if they agree on little else, what, really, can we say that the vast majority of Congressional Democrats are prepared to defend and promote, other than their reelection chances? [Abortion rights? See the recent House-passed Stupak amendment.] When one Party is bluffing about its priorities or principles, and the other Party isn’t, it’s not hard to guess which one is going to use the filibuster to back up its professed beliefs, and which one isn’t.

I don’t think that the current failures of the Congressional Democrats and their leadership are a good reason to radically reform the debating structure of the Senate, as though the latter is the problem, not the former. Though I think you’re right that humans do always “clump” into Parties, somehow, it isn’t always, and needn’t be – especially in our separated-branch government – in such dangerous lockstep, and I think that’s what we have to work on.

Counter-intuitively, perhaps, we need to weaken the Party structure in Congress, so as to lessen the grip of corporate control on our democracy and thereby reclaim the virtues of self-directed legislators acting on principle (practically impossible, I imagine, in the absence of publicly-funded campaigns). Even now, though, the Paul/Grayson cross-Party Fed Audit bill is just such an encouraging example of shifting factional support coming together in defiance of “bipartisan” top-down Party pressures against the bill.

I’m confident that, freed of the need to plead to corporate deep-pockets for reelection financing, and thus to kowtow to an unprincipled Party line (which the Democrats in fact do a lot more than people may realize), principled legislators with convictions of their own who go to Washington to serve the public would have no problem doing just that, self-motivating themselves and like-minded others to get the job done, without needing to be ‘whipped’ and bribed into a Party line by (corrupt, entrenched) Party bosses.

FWIW, here’s an experienced former Republican Member of Congress and high-ranking Party leader advocating similar non-Party-directed independent-thinking by our legislators, in which he goes so far as to say:

Loyalty to party undermines the very essence of representative government, which depends on entrusting members of one’s community to act in one’s stead. What author Peter Shane labeled Madison’s Nightmare has come true: We live in a world of constant partisan warfare, a never-ending battle between clubs, undermining the belief that a citizen’s vote truly counts for something.

Political theorist Bernard Crick wrote that “politics is how a free people govern themselves.” Strong political parties, on the other hand, are how a free people lose that ability. Parties choose which candidates can be on the November ballot, and do so in primaries and conventions that cater to the extremes. Parties reward fealty and discourage independence.

In an earlier time, when it was hard to get information about candidates and they had to depend on party funding and volunteers, political parties made sense; today, they are remnants of a time that has passed. – Mickey Edwards, 8/7/09