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Senate Democrats had an opportunity to get together and make the Senate a working, majority-rule-based chamber. They could have recently used the “Constitutional Option” at the start of this new Congress to rewrite the Senate rules to either eliminate the filibuster outright or at least make staging a filibuster more difficult. Yet, due to a combination of a greedy refusal to give up any individual power, and a pitiful cowardice about a potential future in which the voters reject them, Senate Democrats collectively chose to throw away this opportunity. By doing nothing, they effectively voted to give Senate Minority Leader Mitch McConnell total veto power over everything.
Currently, McConnell and the rest of the Senate Republicans have the ability to kill any legislation, stop any nominee from getting confirmed, or hold any bill hostage until their demands were met. Democrats spent the past two years complaining endlessly about how horrible it was that Republicans used the filibuster to kill popular legislation that had majority support. It was the 60-vote threshold for cloture, and McConnell’s ability to hold his party united in opposition, on which Democrats placed almost all the blame for their many legislative failures over the past two years.
All these awful problems could have been eliminated yesterday in roughly 20 minutes. Democrats could have simply changed the rules and completely taken away McConnell’s power to obstruct. Senate Democrats could have freed themselves to govern as a majority party. They could have made it possible to pass whatever bills they wanted to and no longer be forced to submit to the legislative hostage-taking of a minority. Instead, though, they chose to leave themselves helpless, controlled by the whims of Sen. McConnell.
Senate Democrats had the ability to easily solve the problems they spent the last two years endlessly complaining about, but choose not to. By their failure, they have lost all right to complain, and they now have absolutely no one to blame for every single future failure but themselves. With their inaction, Senate Democrats have made Mitch McConnell entirely blameless. Every single procedural problem McConnell causes Democrats in the next two years is ultimately the fault of Senate Democrats because, despite knowing his modus operandi, they still choose to leave themselves at his mercy.
At best, Senate Democrats have proven themselves to be truly pathetic; at worst, patently dishonest.
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I’m going to go with both?
asshats.
With Reid as the “leader” are we supposed to be surprised? Really? Give me a break…
You guys took away all of my comments.
The thing is, doing this as a hedge against future minority status is silly. If the Senate Democrats think McConnell will hesitate to take the filibuster away from them in the future, they’re living in a dream world.
We be BETRAYED yet once again…WTF did my country GO I thought knew??
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Thats right it has been bought and paid for by the Corporate Cleptocracy..
░░░░░░███████ ]▄▄▄▄▄▄▄▄▃
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I███████████████████].
◥⊙▲⊙▲⊙▲⊙▲⊙▲⊙▲⊙◤…
Help Help!!
Meh. It’s all nothing more than a big old live play anyway. They’re all buddies at the end of the day, regardless of what their “party” really is. People’s eyes have finally been opened to this reality. Dem vs. Rep====Kabuki and nothing more. Voters are doing nothing more than supporting a shiny quarter that has two heads.
And in other news, one sidereal year on Earth is approximately 365.26 days.
Hey, at least we can all call bullshit on their lame excuses now. Yep, they really screwed themselves this time.
Fun with etymology:
“The term “filibuster” was first used in 1851. It was derived from the Spanish filibustero, which translates as “pirate” or “freebooter.” This term had evolved from the French word flibustier, which itself evolved from the Dutch vrijbuiter (free outsider). This term was applied at the time to American adventurers, mostly from Southern states, who sought to overthrow governments in Central and South America. Later the term was applied to the users of the filibuster, which was viewed as a tactic for pirating or hijacking debate.” – http://en.wikipedia.org/wiki/Filibuster
Some things changes, some things stay the same.
LOL! Did you see where they have found the oldest star? I’m sure they will soon have the big bang stuff figured out.
I used to think it was kabuki, but now I’m more of the mind that what goes on is bunraku. And I think we all know who the puppeteers are, don’t we?
Anyways, for this Congress it doesn’t really matter. If anybody thinks Obama was going to begin negotiations by getting all the Democratic Senators on board then pressuring the Republican House to pass whatever it is (which is the only scenario that ditching the filibuster would matter), they haven’t been paying attention to the last couple of years, and certainly weren’t paying attention during the December 2010 tax deal “negotiation.” Unless the operating theory is that John Boehner and Mitch McConnell never talk to each other – granted, with this crack political squad in charge, that might be their assumption judging by their past strategies and results.
It’s going to be Obama and the Republican House coming to a “concensus” then making the Democratic Senate eat it.
Would be nice to make any possible future solutions possible at all, but I guess the Hope and Change crowd is counting on 70 Democratic Senators coming right up (because like The One says, 60 just wasn’t enough to carry out his campaign pledges.)
That was a Galaxy
BIG difference…
I like to call it a Punch and Judy show. You never know which character will be beaten by the wordy stick.
I was just getting used to it all and laughing at it. Now they have no excuses.
It’s actually the oldest galaxy candidate known at approximately just 480 million years after the big bang. Imagine, entire galaxies made of nothing but 90% hydrogen and 10% helium…no metals, no heavier gases, no water…Hot but boring!
Excuse me. Galaxy. I was focused on the star I could see in the pics.
Jon, stop your whining. The Democrats know they’re only one or two seats away from losing the Senate. There’s no way they’re stupid enough to get rid of the one procedural gimmick they can possibly use to obstruct GOP bills and nominees. And shame on you for calling yourself a progressive even as you shamelessly advocate for reducing democratic government.
Sorry didn’t mean to be picky….but
Yeah, at 13.2 Billion light years away, it looks like just a point of light and not likely to be resolved any better with current technology.
“The Democrats know they’re only one or two seats away from losing the Senate.” Whose fault was that again? Regardless, it doesn’t change the fact that the filibuster is an antiquated piece of crap.
This underscores the point that having a functioning, democratically responsive government in this country will require replacement of essentially 100% of the current members of both houses of Congress – from both parties, Democrats as much as Republicans.
Your saying that now but changing the way the senate does business at a time when the republicans have the momentum wldve been a foolish move. With a republican house the democrats are not going to get a bill that they shld pass anyway. Worst case scenario wldve have been a republican house and senate and the ability to pass any law with 51 votes. The time to change the filibuster rules wldve been when the dems took the house, the senate, and the whitehouse. Not now when it is very possible that the dems will lose both the whitehouse and the senate in 2012. If the dems lose the majority at least they will have the ability to stop bad laws due to their right to excerise the filibuster.
So it seems. Is there nothing to prevent his complete sabotage and overthrow of the Democrats?
Why don’t any members get mad enough or enraged enough to just say screw it and buck him outright? How could they stand this bald treatment and still go to work representing us every day as though it was all fine and dandy?
Really.
Maybe so but giving up your rights as a minority party when you cld very well be a minority party soon wld be foolish.
I agree with you 100 percent on this one. Giving up your rights as a minority when you cld soon be the minority party is not wisdom.
actually losing control of the Senate would require a lose of four seats, which is in fact a very large and fairly rare large net swing.
The Dems are scared to death of power. They don’t know how or when to use it. Just a hopeless bunch of morons.
They are the party of the blind leading the lame.
Oh come on. Do you really expect the Republicans to let a minority Democratic Party have the same kind of power that they’ve been abusing if they get the majority back? The Republicans will end the filibuster in a second if they see a need to and they won’t talk about “comity” and “Tradition”, they’ll just do it.
They want the excuse to keep kowtowing to their corporate
donorsoverlords.Unfortunately you are right. This has been going on far too long. The Dems will either learn who the base is and actually fight for us or lose everything. They have whining down to a fine art.
The Lame-O-crats now have an answer to why they are unable to accomplish anything substantive. The mean ole Republicans threatened a filibuster. How convenient.
It’s time they lose everything.
Yep. But there are still enough people in the veal pen to keep them going for some time yet.
I agree – there are Dem rules – and there are GOP rules (like approve right wing judges or we blow up the place with filibuster nuke option – hard to forget those old Bush GOP rules).
BTW, That old galaxy will be job one for the new Webb space telescope in 10 years – and they think they can get usable data from Webb (why they think that is above my pay grade to answer).
IF they keep funding Webb….
Thers is upstairs!
Late Night: The Courage to Talk Crap
Michael, this is an obtuse post. First, you do not need to attack Jon personally to argue the issue.
Second, your statement that
ignores recent history. A few years ago, the Republicans threatened to change the rules in the middle of a session–by majority vote– to end Democratic filibusters. This was the so-called nuclear option.
This was breathtaking. The rules have never been changed after the first day of Congress, but such an attempt is not explicitly forbidden. So, whoever controls the parliamentarian controls the outcome of any attempt to change the rules. You think that the filibuster will protect the Democrats in the next session when they will likely be in the minority. But history says you are wrong.
Finally, the Constitutional option has a long history. People who understand how the rules work say it can be done. Or rather, could have been done had the Democrats not sold out their constituents once again.
Replace all of Congress(?), with what, frogs, robots, shrubbery?
Giving up your “rights” to win the vote on legislation is what happens when you lose too many elections. We should never complain about losing on legislation when we have less than 50 votes.
~~~EDITED IN MODERATION~~~ Nothing here stops the Republicans from changing the rules with 50 votes in 2013.
Also, the proposed rules reform did not change the 60 vote rule. So you are either very stupid or openly lying.
~~~ModNote: Let’s keep to the substantive, avoid the personal insults, please.~~~
Just so we’re clear: What Jon is bemoaning in this post is the (commendable) fact that the Democrats did not “blow up the place with filibuster nuke option.” Because Tom Udall’s “constitutional option” is simply the “nuclear option” conducted at a specific time of the year (the first legislative day of a new Congress). Some difference.
The good news, now that the distortions of Udall are apparently behind us, is that the Senate can change its rules by simple-majority vote, without violating those rules, any day it’s in session, year ’round, with one day’s notice (with the possibility of some inconvenient delay, should an actual debating filibuster materialize). As it has done throughout its history, every time it’s changed its rules.
But more to the point: Reform of present Senate operations is categorically not dependent upon a change in the Standing Rules of the Senate. Corrupt practices need changing – like the practice of enabling Secret Holds, which requires no rule change to remedy. Those who continue to fall for Udall’s misdirection conveniently help take the pressure for reform off the Senate Democrats, by overlooking the changes in Senate practice that are desperately needed, and remain possible at any time – without changing the rules, and thus – on key changes, like filing fewer majority cloture motions, for example – without the need for more than Party Caucus approval.
I think we all recall when the Bush administration’s worst excesses, such as the tax cuts for the rich, the USA PATRIOT Act, the illegal invasion of Iraq, the Military Commissions Act, and the budget-busting Medicare Part D were stopped cold by Democratic Senators using the filibuster. Except I don’t remember that.
Powwow, as the link I provided shows, it is not really correct that
.
It can only do so if there is no filibuster of the proposal to change the rules (or if the parliamentarian goes along with a mid-session change). On the first day of the session, there is a unique opportunity, because of the basic principle that no Congress can bind another. An honest parliamentarian would probably not go along with a mid-session rules change. The Republicans, in invoking the nuclear option, were essentially threatening to fire the parliamentarian if he blocked them and install someone who was more pliable.
That’s assuming, Michael, that when they’re in the minority they’ll have a mind to obstruct and actually act like an effective opposition. Their recent history, all 30 years of it, shows they won’t do a damn thing.
Pelosi had the power to redirect this runaway train in 2007 when she could have endorsed or at least authorized impeachment investigations.
On the contrary, Charles. You’ve basically stated the inverse of the reality in the Senate (rules have usually been changed in the Senate any day but “the first day of Congress”).
Senate Standing Rule V:
The opening paragraph, on Page 1217 [PDF Page 1 of 12], of the “Rules” PDF of Riddick’s Senate Procedure:
From Page 935 [PDF Page 2 of 4] of the “Motions” PDF of Riddick’s Senate Procedure:
The “nuclear option,” like the “constitutional option,” is about violating existing rules to “change” them without the need to wait out any debating filibuster that may emerge. [And probably equally, in the modern Senate, without any need for the majority to allow the Senate Chamber to go “live” again (out of tight Party leadership control from the backrooms), in place of the suspended Chamber (via make-believe quorum call) that we have today and had when Bill Frist’s allies wrote the “nuclear option” paper that you approvingly link in your closing paragraph, while referencing the “Constitutional option.”
For those hopelessly confused about Senate rules by the contemptible half-truths of Tom Udall & Friends, I sympathize, and have done my best, repeatedly, to try to tell it like it is to counter those half-truths; in my case, as I said in my diary about this yesterday, and unlike our incumbent Senators, without fear of or favor to any political Party.
Correct. But also only if the Senate can’t manage to wait out any filibuster that materializes (the longest one-man filibuster in Senate history lasted 24 hours). In that regard, you might note that there hasn’t been a debating filibuster conducted in the U.S. Senate in almost twenty years (Bernie Sanders recently came closest in form – except that he carefully avoided delaying Senate action in any way).
No Senate “binds another” to its rules unless you buy the lie that default Senate rules “require” that 67 votes be obtained to change the rules. Actually, unless and until the majority Party files an optional cloture motion (before or during an ongoing debating filibuster), no “67-vote” threshold is ever triggered.
As I said @ 47, the (honest) Senate Parliamentarian (who keeps track of Senate precedents, as largely collected in Riddick’s Senate Procedure) would tell you for a fact that simple-majority Senate rule changes routinely occur “mid-session” (ideally after sober consideration in, and a favorable report by, the Senate Rules Committee). There is absolutely nothing in Senate rules forbidding mid-session rule changes by simple-majority vote.
There is, on the other hand, as I quoted @ 47, something in Senate rules and precedents forbidding the Presiding Officer, after dismissing the non-partisan advice of the Parliamentarian, from declaring the right to debate in the Senate over, while a Senator still wishes to be heard (because “enough” time has elapsed in someone’s judgement), in response to a motion or point of order made by a Senator from the floor (which are a couple of the proposed mechanisms for executing the nuclear/constitutional option).
If Republicans planned to fire the Parliamentarian for rightly following Senate precedent, if and when they tried to implement their nuclear option, it means that even they didn’t have the gall to do (without non-partisan cover) what Tom Udall and Jon insist that Vice President Biden (as the Senate President, who makes the final call after taking advice from the Parliamentarian) should have been asked to do: To ignore or override the Senate Parliamentarian’s recitation of clear Senate rule and precedent to declare an “out of order” (partisan) point of order “in order” – which, if 51 Senators back him, deliberately overthrows the Senate’s “regular order” (then, and therefore anytime in future) and forces Senators trying to exercise their right to be heard on the floor to shut up.
perhaps I’m being overly cynical but I believe that we’re being conned by an unholy alliance between the Senate Repugs and the Dems. with the classic “good cop, bad cop routine”. Let’s face it; both corrupted parties work for the same oligarchists.
In 45 years of watching the Senate, I have never seen a weaker Majority Leader. The Mormon Elders must have some real good dirt on the other senior Democrats to keep that limp dick in his seat.
Seriously.
The talk of the Democrats changing the filabuster rule was way too good to be true. The corporate overlords like things just the way they are. Endless kabuki gridlock means more status quo and continued pillaging of the Treasury.
which is EXACTLY why the senate dems of the previous congress NEVER had a right to blame the republicans for their failures (or while the dems control the majority). use of the 60-vote threshold for cloture is purely voluntary. the dems could have passed important legislation with a simple majority if they did not insist on going the cloture route.
geeze. just go read powwow’s latest diary (if you haven’t bothered to read any of the previous ones): (Debating) Filibuster vs. (Optional) Cloture: The Self-Inflicted Catch-22 in Senate Rule XXII
The filibuster hasn’t even been used in twenty years. So obviously it’s not the obstruction Democrats now claim it is. What’s more, eliminating that will not result in progressive legislation being passed or good appointees being allowed to occupy government offices. That can only be done by electing actual progressives to Congress, in both the House and the Senate.
At which point eliminating the filibuster becomes unnecessary.
Correct me if I’m wrong, but isn’t the makeup 51-49? Or did I misread the November election results?
Ah, but they could have done that when they last were in charge of the Senate. In fact, they threatened to do just that. But then they realized they wouldn’t always hold the Senate, so they wisely backed away from getting rid of the filibuster. It helped that Democrats never used it to begin with, and that they are so accommodating of GOP filibuster threats that they won’t even make the forty-one senators show up to sustain one.
Can anyone seriously doubt that the Democrats’ *job* is to offer a pretense of opposition?
I don’t think anybody, ever, loses the right to blame Mitch McConnell.
Powwow, you’re missing the point (and very obviously didn’t read Gupta and Gold). On the first day of the Senate, the presiding officer (who represents the majority) can entertain a motion that the Senate is no longer a continuing body. If you had read a little farther in Riddicks, you would have seen that the chair rules such a motion out of order, the Senator raises a point of order, and the Senate votes– without debate and therefore by simple majority. Assuming they sustain the point of order, at that point, all Senate rules become moot and things revert to standard rules of debate.
Sure, the rules can be changed after the first day, but only if they are brought forward as a motion, which requires that there be no filibuster of the motion.
Not that you’ll read this, but maybe some other poor soul won’t be so misled.
Please, please, just ^%$$ing read Gupta and Gold. You are not an expert on Senate rules. They are. They may be wrong, but they aren’t cherrypicking Riddick.
The following para makes no sense to me, powwow:
The Republicans made it very clear that they had all the gall in the world. The key to understanding the situation is that the courts by disposition tend not to interfere in the affairs of the other branches. However, the Supreme Court– with such activist partisans as Scalia, Thomas, and Roberts– is very willing to interfere wherever it will help their side. The Republican plan was to create enough smoke to claim that all they needed was 51 votes, knowing that the Democrats had no backup in the courts, and that the media would be silent.
The reverse situation does not obtain. If the Democrats tried to do something unprecedented, then the Supreme Court would intervene. But there is a clear precedent, from 1917, in which the Constitutional option was invoked in response to an attempt to block American ships from arming themselves to protect against a U-Boat attack. With a precedent in place, the optics of intervening would be very, very ugly.
We are already on the brink of a Constitutional crisis. The Senate has been blocking the clear will of the American people on many issues for years and decades. Either the Democrats use the power they do have to force through the necessary changes so that the majority will can find expression, or we are on a slope downward into national collapse. No people can be ruled by a minority forever, even if that minority manages to falsify the media and exclude the poor from elections and use the massive power of corporations to beat people down.
I guess it’s not surprising, given the deceit and partisan vitriol surrounding this issue, that you, and others, fail to recognize that the Presiding Officer of the Senate debating chamber does not act in a partisan manner in his daily rulings, despite (at the moment) being a member of the majority Party. In fact, as anyone who watches the Senate can attest, the Presiding Officer in the modern Senate is entirely dependent upon the non-partisan Senate Parliamentarian sitting below him, or her, to know what to say and do, when addressed from the floor. Vice President Biden, on the couple of days of the year in which he condescends to take his place as Senate President, is no more equipped to handle the duties of Presiding Officer than the parliamentary rookies (most of today’s Senators) who rotate through that chair each day.
But even in the days when Vice Presidents actually presided over the Senate on a daily basis, and knew parliamentary procedure well, it is to the great credit of the Senate as an institution that the Presiding Officer honorably fulfilled his role as the neutral arbiter of Senate rules and precedent during Senate debates, without regard to Party.
That’s what “regular order” means in the Senate: Regular, established, non-partisan parliamentary debating order. If that’s your “point” – that you want to throw the Senate’s (atrophying) neutral debating Chamber out of the window by turning the neutral Presiding Officer into a partisan – I may be “missing the point,” but I know that I violently disagree with it.
It goes without saying that a Presiding Officer can “entertain” any motion or point of order. The question is what he or she does after hearing it, regardless of whether or not the Senate is a “continuing body.” If, at this late date, one or more members of the Senate conclude that the Senate shouldn’t be a “continuing body” – so that its rules in future only last for two years at a time before expiring – then the Senate should come to that simple-majority decision by changing its rules, with full and fair debate, as the rules that it’s continuously carried forward since the Senate was founded provide. Such a profound change in the historical practice of the Senate deserves a maximum of due, deliberate consideration and public airing by its members, not a Tom Udall-style, underhanded, backdoor partisan scheme to ram it through before anyone knows what hit them.
Ah – I see that you decided to start reading Riddick’s (good job), and discovered the attempts – all wisely thwarted – that have been made before, which Tom Udall has tried to emulate, to arbitrarily overthrow the Senate’s regular order by raw abuse of Party power. I guess you don’t realize it, but, aside from your confusing the details of the process (a chair’s ruling is appealed, not addressed by a point of order, etc.), what you describe there is another version of what I described @ 48, minus, it appears, any understanding of the negative implications for the non-partisan parliamentary integrity of the Senate that would flow from that “twenty-minute” process of violating existing Senate rules and precedents.
Again, to underscore the side effects of this partisan power play: If your Nuclear Constitututional Option succeeded, all Senate rules, for the first time in Senate history, would dissolve (there’s a lot more than “the filibuster” at stake here), not just in that Congress, but every two years thereafter, even as two-thirds of the members of the Senate remain unchanged between one Senate and the next.
Basically everything in the Senate gets started by some sort of “motion.” That’s neither here nor there. But, yes, debating filibusters can block various motions (if you’re using some other, undefined meaning for “filibuster,” you should define your terms). There’s either an obvious, public, ongoing debating filibuster about some measure then before the Senate, or there isn’t. And again, there hasn’t been a debating filibuster in the Senate in almost twenty years. Furthermore, “debating filibusters” can be waited out in most cases. So what’s the problem?
Regarding “Gupta and Gold”: Martin Gold was the Majority Counsel for the Senate Rules Committee when Bill Frist was the Senate Majority Leader. That 1990s paper, which, unfortunately, I have read, is aggressively cherry-picked and slanted to make the “nuclear option” case (providing, perhaps most egregiously, less than the whole truth about the implications of such a move), as is Tom Udall’s new paper (as linked in my latest diary and published in the same venue as Gold/Gupta) – which is atrociously incomplete and carefully constructed to favor and shield abuses of Party power.
But Martin Gold does indeed know a lot about the Senate. He’s written a book about Senate procedure, which seems to be a lot more straight-shooting than his co-authored, agenda-driven nuclear option paper. And in that book, Martin Gold nails this fact about “the filibuster,” which more people ought to try to grasp:
That’s a version of Gold/Gupta’s one-sided, approving account of President Wilson’s effort to force the Senate to enter the United States into the World War – which the ship-arming bill was rightly seen as cover for doing – over determined, principled minority opposition. Wilson got the new cloture motion rule through the Senate – in a special 1917 session of Congress called immediately upon the end of the regular session – after a temporarily-successful overnight debating filibuster of the conference report (containing the legislation to arm merchant ships) was conducted by Senators opposed to our entry into the war. Congress declared war a month later, however, without the cloture rule actually being used. [Cloture's first use was to end Senate debate opposing (evidently wisely, with hindsight) the Treaty of Versailles.]
And again, you’re confusing terms, because the “Constitutional Option” would only have succeeded and created “precedent,” never mind “clear precedent,” if the default right of each Senator to be heard on the floor had been abridged (the Option’s primary, if unspoken, purpose). But the fundamental right to debate in the Senate was not then, and is not now, so abridged. However, 1917′s optional cloture rule (at least as revised in 1975, and now regularly abused by the majority Democrats) has indeed started the Senate down the slippery slope to being just another thoughtless, partisan, immature insult-hurling body – a state to which the House Chamber shamefully degenerated some time ago.
“The Senate” has been doing nothing but sitting there, waiting to be used, as it was designed to be used. Meanwhile, the two political Parties have virtually abandoned the Senate Chamber, and Senators now largely confine their activities to the privacy of the backrooms, as my diary this week elaborates. Is that “the Senate’s” fault?
I don’t know why the implications of this fact are so sturdily resisted by so many partisans (unless it’s an authoritarian impulse to take on faith the word of perceived authority figures), but the fact remains:
So if, in the Senate today, the will of the majority Party is being “blocked,” the majority Party has only itself to blame, and no change in the rules, or violation of the rules, is needed to remedy that situation.
Powwow, I do not accept your version of this. You are contradicting established experts, which you try to dismiss with ad hominem characterizations. Unless you want to provide evidence that you’re the current Senate parliamentarian, I’m not willing to waste time on this.
And you do this in the course of making the brief for… what? That the Senate rules allow Senators who could represent as few as perhaps 25% of the American people, and have the votes of as few as perhaps 5% of eligible voters to thwart the will of the other 75% of Americans? When laws and rules allow such outcomes, they are neither laws nor rules, but a kind of tyranny. The Declaration of Independence states “That to secure [basic human rights], Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it…”
The very first three complaints enumerated against the King of England in the Declaration are that he refused to allow laws to be made. You are making the brief for civil war.
I have great respect for and understanding of the value of debate in preventing nations from making rash judgments. If I had been in the Senate in 1916-17, I might well have been standing with Bob LaFollette. But I have also seen the filibuster abused in the form of defending segregation. There has to be a balance between the right of the minority to be heard and the right of the majority to have its way. The federal court system has been turned into a partisan mockery of a system of justice by the Republican Party abusing its power. Unless time-wasting maneuvers can be ended, and resistance to majoritarian abuses confined to genuine debate, a government that serves the basic human rights of the American people cannot function.
Do you want me to agree that the Democratic Party is filled with hacks, opportunists, time-servers, money-grubbers, and whores to corporations? Of course it is. Both parties always have been. But we face a period in this country when the media and the courts have been completely subverted to serving reaction. It is not easy to oppose them. You would make it not merely difficult, but impossible.
Pardon me if I decline to believe–consistent with a well-established legal theory– that this miserable era must decay even further into national crisis.
______________
Added: I do agree with you that the parliamentarian should be non-partisan, and that what I have seen of the parliamentarian’s actions in, for example, the Clinton trial, were commendable. But the Republicans were going to end debate through the nuclear option, no matter what the rules or the parliamentarian said. You want to confront such out-of-control partisanship with … nothing.
powwow spent a lot of time researching the issue (using primary sources as well as the so-called experts), all done in an open and transparent manner in working threads on this site. i never saw anyone provide evidence that powwow’s analysis was incorrect — just the opposite. personally, i was persuaded, especially after tracking down what was for me a key riddick’s citation from the congressional record (which was not available online although it is now, i posted it). and when i called the senate parliamentarian’s office i was at least able to confirm the basic point which is that cloture is optional.
before you dismiss powwow for not agreeing with the experts, even if you don’t want to spend the time reading primary sources and powwow’s analysis, you might consider that all the “experts” thought the iraq war was a grand idea and, in the beginning at least, a smashing success. experts aren’t always the ones with the most accurate answers and a big clue is when the experts try to baffle us with bullshit instead of well sourced and argued analysis.
Can you specify any actual “ad hominem characterizations” that I made about the only “established experts” under discussion here (Gold, perhaps, when not wearing his Party hat, & Gupta), as opposed to legitimate critiques I made of their work product? If not, please drop that strawman excuse – it’s no substitute for a failure to accept or rebut my honest assessment of their debate-hostile paper; a paper, written before the cloture epidemic of the current Democratic Senate, that to your eyes is evidently the truth, the whole truth, and nothing but the truth (now, if not when Bill Frist was brandishing it).
Feel free “to not accept my version” of what the Senate rules and precedents actually require, without offering the slightest detail about where I may have erred (informed details about apparent mistakes are not dismissed by me). It seems that you haven’t even tried to understand what I’ve written, based on this:
Since you would apparently rather change the subject, than rebut the substance of my comments (evidently preferring to argue by authority figure, rather than with your own critical thinking abilities), I too will drop the subject. But please note that, by correcting some of your obvious misstatements about the rules of the Senate, Charles, I’m not dismissing your world view, or denigrating your opinions about the utterly deplorable and dishonorable results we’ve seen from our Congress. My purpose was to point out the facts as I know them, and to do so without blaming you or judging you. As I said above, I blame the Senators and other insiders who peddle the half-truths, and knowingly deceive the public (try to “baffle us with bullshit,” as selise puts it so well), for the absurd levels of confusion about how the Senate is designed to work.
In closing, I think I can speak for myself about what I “want to confront such out-of-control partisanship with.” Unlike you, I don’t consider the non-partisan facts, which you’re apparently not prepared to accept from me, “nothing.” And as I’ve explained in great detail for anyone interested, I’m primarily focused on greater public exposure for the actions in public office of Senators of both Parties – which necessarily involves dragging Senators out of the backrooms and back onto the public Senate floor, weakening the undemocratic, top-down Party hierarchies in the process.
Without pressure from the nation’s citizens for a publicly-accountable federal legislature (something that requires no rule changes, myths notwithstanding), Party-directed Senate incumbents who now choose a Backroom Senate that “works by unanimous consent,” or not at all – in lieu of simple-majority regular order in a “live” public Senate Chamber – will only too happily continue to further entrench that practice as standard operating procedure, at the expense of both public debate and democratic self-government.
Ok, Powwow and selise, let me put it this way:
Let’s say that your analysis is correct. Since you have chosen to address a complex, multi-layered issue without providing a readily-substantiated basis of your expertise, every reader must go through every detail of your argument to decide whether it’s persuasive.
Accepting that what you have produced is a first draft, it’s very complicated to follow. Some of that is due to the complexity of the topic. But a lot of it has to do with your writing style, which I find maddening.
One example of that: saying that authors have “aggressively cherry-picked and slanted” the facts detracts from your argument. It’s a conclusion (and an ad hominem conclusion in that it pretends to know the motives of the authors in not addressing an issue). It’s much more persuasive to simply present the evidence that an article has failed to consider arguments and let that speak for itself.
But my feelings about your thesis go well beyond a complaint that you get drawn into attacking the character of the authors as expressed in their work product. Even complex arguments can be reduced to a 200 word abstract/executive summary that is so complete that following the details is easy. Try this as an important exercise in making your writing effective.
Furthermore, there may well be arguments that you haven’t anticipated. That’s the basis of professional peer review, which an article that appears in a journal must undergo. If you really believe your thesis, then you should write up this article for, say, the Harvard Journal of Law & Public Policy. Or send it for comment to Gupta, Gold, John Dean– or any other recognized Constitutional scholar–for their comments. For that matter, send it to your Senator, and ask him as constituent service to give it to the Congressional Research Service or the Senate parliamentarian for comment. Since it looks like there will be four years until filibuster reform can be tried again, you have plenty of time to gather advice and hone your thoughts.
I don’t say this to raise a barrier. When I wrote a 20,000 word five-part series on the Honduran coup, an issue I felt deeply about, I made it available to two recognized experts on the country, both college professors at well-recognized institutions. They liked it enough to recommend it to their blog readers. I contradicted a researcher at the congressional Law Library, who I believed trimmed her findings for political convenience. I didn’t just post my criticism to a blog. I wrote to her boss and explained why I believed this was corrosive to the reputation of the Library of Congress. The process of writing things carefully enough that one can confront experts publicly forces one to condense arguments into their most powerful form.
Finally, I said that this is not merely a complex issue, but a multi-layered one. The other layers have to do with the political realities in the Senate, in the courts, and in the media. In other words, even if your thesis is perfectly correct, there may be reasons why it cannot be implemented.
Implementation is what matters to me and to all of us who have watched the abuse of delaying tactics over the course of many decades. If universal healthcare had been implemented when Harry Truman proposed it, several million people would not have died prematurely from lack of access. If the filibusters of segregation had required fifty votes, Jim Crow would have ended in the 1950s. The US would have been spared the convulsions of the 1960s and 1970s. The terrible toll of poverty and incarceration on minority communities might well never have taken place. Reactionaries have used the courts and the Senate ever since FDR to make peaceful change impossible. As John Kennedy said, doing so makes violent change inevitable.
You express concern about doing violence to Senate protocol. I feel concern about the violence the Senate does every day to my brothers and sisters. In times of national crisis, which we may be entering, such concerns become mutually exclusive. Please consider which side you are on, and then do as your conscience guides you.
i have no talent for writing, but i did promise powwow i would write up a couple of summary diaries. ill health, real life and competing priorities got in the way of doing that in anything approximating a timely manner. that is truly my bad. but it is not my bad that the facts continue to be misrepresented here. it is not my bad that you demand to be spoon fed especially when all the research was done in an open and transparent manner here at fdl.
it is maddening to continue to see blatantly false statements made here (see for example this recent and outrageous post which was debunked in the comments — comments which were not even responded to by the author).
political opinions and priorities are one thing. we can agree or disagree and engage in friendly discussions/arguments about policy. but you are responsible for at least getting your facts straight before asserting them. if you don’t want to read powwow because you find it too difficult, then at least read the damn rules and precedents for yourself — and if you can’t be bothered, please consider refraining from repeating the false assertions of others until you’ve done your own fracking homework.
me too. i’m pretty sure you and i agree on many things (universal healthcare, economic justice, a just legal system, a transparent government accountable to the people, etc). but when the facts are being misrepresented — as they are with this issue — that misrepresentation gets in the way of our ability to understand and identify the real source(s) of the problems we face making it next to impossible to figure out what do to about them. it’s the misrepresentation i am objecting to.
powwow, i have a thought which per usual may be completely off base. but here it is for you to consider…. would it be helpful, do you think, to try to separate the argument into two parts: 1) the diagnosis (the facts of the senate rules, etc) and 2) the proposed cure (public legislation and debate vs back room secrete dealing and public political theater)?
i think readers, finding themselves in disagreement on #2, the proposed cure, skip over the facts of #1 having already decided they disagree. i’m thinking that it might help if we were all on the same page with regards to the diagnosis before proceeding to consider the best cure(s). if i ever get around to writing more than comments on this topic (my very sincere apologies for letting you down on this), i might try to approach the issue in that fashion. unfortunately i can’t say i see that happening now in even the next few months. :(
If the Ds lose the majority in the Senate, why wouldn’t the Rs use the Constitutional Option and get rid of the filibuster?
The Ds are likely to lose the Senate in the next election, especially if they can’t pass good legislation now. They’d be a good deal less likely to lose if they could pass a bunch of good bills, and force the R House to kill those bills. Of course, with 60 votes needed to get anything through, the only legislation possible now is crappy stuff the Rs will agree to.
I agree with Jon. The filibuster needs to go. But I disagree with him on one thing. The Constitutional Option can be exercised at any time, not just at the beginning of a session. So, the inability to end the filibuster will always be the Ds’ and Reid/Biden’s fault until the Rs take over the Senate.
Finally, I’m not interested in re-arguing the filibuster. That was done many times during 2009 and into 2010, so those who are curious can go the archives. I think the other side of the argument had very capable defenders in selise and especially powwow. But I believe the Senate should do its business by majority vote other than in situations explicitly called out in the Constitution.
I tried to do a form of that, selise, or so I thought. I’ve been addressing the main issues one by one, more or less as they’ve arisen, as the public debate and reporting has focused on first one, then the other – issues which my latest diary boils down to three major myths.
The third paragraph of my latest diary:
First, of course, we had to, and did – successfully, I think (judging by then-Senate President pro tempore Robert Byrd’s February, 2010 Dear Colleague letter, and his 2010 Rules Committee testimony, for those who listen only to “experts”) – tackle the still widespread myth that “the Democrats can’t force the Republicans to actually filibuster, Mr. Smith Goes to Washington-style, because Senate rules now prevent that, or make it unfeasible.” That, as we both know, was an effort that went deep into the weeds to essentially try to prove a negative, based on what seemed clear positive evidence that no Senate rule change between the last real Senate filibuster (or since that late 1930s movie was made) had foreclosed that option to a Senate majority (provided, as subsequently became apparent, that the Majority Leader’s make-believe quorum call isn’t suspending Senate business and thus blocking that option). And the crux of that complicated work, generated by three working diaries, is now basically summarized in one comment, as noted in my latest diary.
Then I had to pull back to look at the big picture again – which we both had concluded revolved around the right to debate in the Senate, and the value and indispensable role of public debate in democratic self-government – which meant continuing to untangle the Party-generated cloture/filibuster conflation. I’d been doing that mostly in comments, because until you or I addressed what we consider to be the main point (debate), the rest of it loses relevance. Eventually I was able to pull together a debate diary (figuring you’d be glad I at least took a stab at it, whether or not it overlapped with a debate diary of your own), with the sort of context that I think the issue needs (but rarely receives). That’s my December diary, as linked above.
I addressed both the filibuster/cloture conflation and the ‘how Senate rules are changed’ issue in that December diary, but didn’t focus on the latter issue in depth. Finally, as the 112th Congress convened, with most of the public focus shifting to the purported need for “filibuster” reform through rule change, I wrote this week’s diary, which recapped earlier themes, but mostly elaborated on the claims about the rule change process – as driven by the misleading filibuster/cloture conflation, which I therefore spelled out some unspoken reasons for at length – that was being considered in the Senate this week.
All of which, by the way, has only helped me to see more clearly how the hidden Party hand lies behind so much of what the Senate now does (and doesn’t do) in public.
But whether or not that chronology describes something similar, I do like the idea of your “diagnosis” and “proposed cure” categories. And I think you’re absolutely right about this:
But it seems to me that no matter whether you start with #1 (diagnosis), or #2 (cure), there’s a constant shifting of argument between one and the other, before everyone can agree on #1, the diagnosis. That’s, I assume, because people have already been long exposed to false premises about #1, and have drawn #2 conclusions of their own based on those false premises. So deconstructing those false premises as part of diagnosis explanation threatens their already-conceived view of the best cure. [Partly for the same reason, it seems less than clearcut to me (perhaps due to being overly immersed in the subject) how best to divide information between the two categories.] It’s a muddle. Which, however, doesn’t mean for a moment that I think you shouldn’t take a swing at it at some point, if you feel like it.
But here’s some good news:
I have to think about it some more, and obviously watch what transpires, but – as I just noted in a final comment in my diary, before the thread closed – the recent close focus on its operations (perhaps aided by watching the House try to reform itself) might just have jolted the Senate out of its decline and fall, at least temporarily.
If Senators continue to build on the momentum of this week’s discussions and decisions – the most consequential of which, I think, is probably the informal agreement between Reid and McConnell (who presently pull most of the strings in the Senate), and between their Rules Committee proxies (Schumer and Alexander) – and begin to slowly reassert their own authority again as individual Senators, as opposed to Party pawns, I think there’s a real chance we’ll see some genuine reforms in Senate practice this year.
Meaning: More democratic (simple-majority) public debate and amending on the Senate floor, and thorough committee consideration and democratic amending of proposed legislation before measures reach the floor.
The upshot could be a dramatic decline in the optional filing of cloture motions by the Democrats – meaning a return to simple-majority regular order, for the most part – without the need to resort to forcing debating filibusters. That would be very positive, all around, I think, and would start to reestablish former Senate patterns. It would, however, still leave unaddressed the growing problem of the suspended Senate Chamber – meaning that, when there is a controversial measure at hand, instead of forcing debating filibusters when opposing views can’t be resolved, they’ll likely be defaulting back to supermajority cloture thresholds, without debate, imposed by Party leadership, in lieu of thrashing it out on the floor, where it belongs.
Nevertheless, if we’re lucky, we may just have the beginnings of a “cure” in the Senate. Here’s hoping, anyway, while we wait to see whether the cure spreads, stagnates, or proves to be a mirage.
and so they could have and still may, without any rule change or “constitutional option.” it has been by choice of of the majority part not to do so. and as it’s not the senate rules that currently prevent legislation by simple majority, a rule change is not a cure for that.
my bold.
upon reflection i think you’re right, especially regarding the line i highlighted. and lets’ comment above seems to me a good example. iirc, lets has previously argued that the delay of a filibuster debate is what he objects to — not that current rules prevent legislation by simple majority. and yet, still today, “simple majority” is used as the fundamental issue supposedly requiring, and justifying, a rule change.
there is so much financial power, in the form of campaign finance and the revolving door, outside the legislative branch that i’m not so hopeful change will come from within the legislative branch — unless a countervailing force (as in people power) is created.
but then i haven’t been watching congress recently and so am in no position to judge recent potential changes.
p.s. thanks for the outline of your more recent posts. i will try to add them, and in other ways update my reference list… even if for only my own reference, i find it useful.
I don’t think there’s any doubt about the inordinate, negative influence on Congress of organized financial power today (whose malevolent designs and designers the ‘hidden Party hand’ of the Backroom Senate helps shield from public view). So I agree that it seems unlikely that true reform will come entirely or even mostly from within the Legislative Branch. But obviously any positive insider-generated change that we get is very welcome and one less hurdle to clear. With, I trust, continued pressure from the outside, the insiders of the 112th Congress may yet surprise us on that front – if not with regard to the increasing corruption of our federal campaign finance system by Global Corporate, at least with regard to how and where legislation is compiled and deliberated upon in both the House and Senate (even if only after the lobbyists have been given the first crack at it).
[Clarification: I misplaced a word in the midst of one sentence in the "Dear Colleague" paragraph in comment 71, which unnecessarily confuses a key point. The sentence should read: "That, as we both know, was an effort that went deep into the weeds to essentially try to prove a negative, based on what seemed clear positive evidence that no Senate rule change
betweensince the last real Senate filibuster (or since that late 1930s movie was made) had foreclosed that option to a Senate majority (provided, as subsequently became apparent, that the Majority Leader’s make-believe quorum call isn’t suspending Senate business and thus blocking that option)."]From 72 & 73:
That’s putting it, with elegant simplicity, in a nutshell. Exactly.