Filibuster: Exchanging Scripts Again

With the Democrats holding a slim majority in the Senate, Majority Leader Harry Reid is making noise about doing away with the filibuster, or reforming it in some way, to prevent the minority from blocking votes on legislation as long as they can get 40 votes to continue debate. So let’s set the wayback machine for 2003-2005, when Republicans had control of the Senate and Majority Leader Bill Frist was talking about invoking the “nuclear option” to get rid of the filibuster and the Democrats were throwing a fit about it. Like this:

Sen. Christopher J. Dodd, Connecticut Democrat, said it is a “huge mistake” to change the filibuster rule.

“This rule is important as well because it forces Democrats and Republicans to work together, to come to consensus. If you abandon this rule, then you’ll find even more partisanship, in my view, in the United States Senate,” he told interviewers on CBS’ “Face The Nation.”

Mr. Dodd “warned” Republicans that changing the rule could allow Democrats to stack the federal judiciary in the future.

“I wonder if people in some of the states in the South, for instance, are going to be terribly happy when a Democrat president, a Democratic president sitting there, virtually deciding for him- or herself who the federal judges will be out of that state, because you’ll no longer have to consult with the senators from those states, as you do today.”

And this:

Republicans say that Democrats have abused the filibuster by blocking 10 of the president’s 229 judicial nominees in his first term — although confirmation of Bush nominees exceeds in most cases the first-term experience of presidents dating to Ronald Reagan. Describing the filibusters as intolerable, Senate Majority Leader Bill Frist (R-Tenn.) has hinted he may resort to an unusual parliamentary maneuver, dubbed the “nuclear option,” to thwart such filibusters.

“One way or another, the filibuster of judicial nominees must end,” he said in a speech to the Federalist Society last month, labeling the use of filibusters against judicial nominees a “formula for tyranny by the minority.”

So far, at least, Democrats are refusing to forgo filibusters and say they will fight any effort by Frist to act unilaterally to end them for judicial nominations. They warn that it could poison the well for bipartisan cooperation on other issues in the upcoming Congress.

“If they, for whatever reason, decide to do this, it’s not only wrong, they will rue the day they did it, because we will do whatever we can do to strike back,” incoming Senate Democratic leader Harry M. Reid (Nev.) said last week. “I know procedures around here. And I know that there will still be Senate business conducted. But I will, for lack of a better word, screw things up.”…

Republicans counter that, even though the number of filibustered nominations is small, the Democrats are trampling on the Constitution by denying a straight up-or-down vote for even a single nomination. The Constitution, they note, requires two-thirds majorities for treaties, constitutional amendments and other specific matters but calls for only the “advice and consent” of the Senate on judicial choices, with no reference to any super-majority for confirmation.

Democrats disagree, arguing that the Constitution empowers Congress to set its own rules of operation and does not specify the size of a majority needed for judicial confirmations because the issue was to be left to the Senate to decide. “What about all these people who say they want a literal reading of the Constitution?” asked Charles E. Schumer (D-N.Y.), a member of the Judiciary Committee.

And this:

Democratic National Committee chairman Howard Dean says Republicans are fixing to “blow up 200 years of Senate history” just because they’re not getting their way on a handful of “radical” judicial nominees.

And this:

SEN. CHARLES SCHUMER: It would turn the United States Senate, everything all of us have worked for and worked in, into a legislative wasteland…

SEN. HARRY REID: In order to break down the separation of powers and ram through their appointees to the judicial branch, President Bush and the Republican leadership want to eliminate a 200-year-old American rule saying that every member of the Senate can rise to say their piece and speak on behalf of the people who sent them here.

Of course, the Republicans are being just as hypocritical. All those quotes were from 2003 to 2005, when the Republicans were railing against the filibuster and the Democrats were defending it. And in the mid 90s, of course, it was the other way around.

And they will exchange scripts again, undoubtedly. And partisans of both parties will have all kinds of excuses for why it’s totally different when their party does it – because, of course, the other party is evil and must be stopped and we are pure and must succeed. And the Republicans have done the same thing, of course, more than once. Here’s Sen. John Kyl, a conservative Republican from Arizona in 2005 grandly declaring that not only must such filibusters be stopped, but pledging to never, ever change his mind when a Democrat is in the White House:

“Republicans seek to right a wrong that has undermined 214 years of tradition – wise, carefully thought-out tradition. The fact that the Senate rules theoretically allowed the filibuster of judicial nominations but were never used to that end is an important indicator of what is right, and why the precedent of allowing up-or-down votes is so well established. It is that precedent that has been attacked and which we seek to restore….

My friends argue that Republicans may want to filibuster a future Democratic President’s nominees. To that I say, I don’t think so, and even if true, I’m willing to give up that tool. It was never a power we thought we had in the past, and it is not one likely to be used in the future. I know some insist that we will someday want to block Democrat judges by filibuster. But I know my colleagues. I have heard them speak passionately, publicly and privately, about the injustice done to filibustered nominees. I think it highly unlikely that they will shift their views simply because the political worm has turned.”

Yes, he and his colleagues spoke passionately, publicly and privately, about the injustice of judicial filibusters. But now that Obama is ready to take office, the worm has indeed turned for Kyl. He appeared at a Federalist Society event in Phoenix a mere 2 days after the election and here’s what was reported from that meeting:

“Jon Kyl, the second-ranking Republican in the U.S. Senate, warned president-elect Barack Obama that he would filibuster U.S. Supreme Court appointments if those nominees were too liberal.

Kyl, Arizona’s junior senator, expects Obama to appoint judges in the mold of U.S Supreme Court Justices Ruth Bader Ginsburg, David Souter and Stephen Breyer. Those justices take a liberal view on cases related to social, law and order and business issues, Kyl said.

“He believes in justices that have empathy,” said Kyl, speaking at a Federalist Society meeting in Phoenix. The attorneys group promotes conservative legal principles.

Kyl said if Obama goes with empathetic judges who do not base their decisions on the rule of law and legal precedents but instead the factors in each case, he would try to block those picks via filibuster.”

And here is Jon Kyl now that Reid wants to get rid of the filibuster:

Sen. Jon Kyl (R-Ariz.) followed McConnell on Tuesday called it the “nuclear option” and a violation of Senate rules, which he said normally require a two-thirds majority vote for rule changes.

“To suggest a nuclear option by which a mere majority of the body can amend the rules, is itself a violation of the rules,” Kyl said. “It’s an assertion of power, but as the old saying goes, might does not make right.”

None of these people are speaking out of anything remotely like principle. It’s all about political power. The filibuster, as currently configured, should be done away with. At the very least, you should have to do a real filibuster and speak on the floor for hours and days on end. That would require some commitment and make them far more rare and difficult. But I don’t want to hear any of these frauds pretending to be acting on principle. They’re not.

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  • TGAP Dad

    I remember the 2005/6 senate fight over the filibuster. As I recall, the repubs were getting nervous about their hold on congress, and were pushing hard for unpopular things like social security privatization.

    Today’s republicans, in their not-if-Obama-says-so zeal have gone ape shit with the filibuster, to the extent that they can’t even get a nominee for federal judge confirmed. Today’s filibusters aren’t even really filibusters in the traditional sense; they are just the threat of a filibuster, in sort of a “I deem thee filibustered” sense, and it withers on the vine. I think some limited reform would certainly be welcome. Limited because, someday, Mitch McConnell may be senate majority leader. But I think it’s fair to make them choose which fights they want to go all in on, rather than incurring no cost for keeping all legislation hostage. Some of the things I’ve heard floated, like bringing back the actual speaking filibuster (memories of Strom Thurmond urinating in a bucket while keeping a toe in the senate chambers here), limiting anonymous holds, sound like reasonable first steps.

  • baal

    do want:

    “a real filibuster and speak on the floor for hours and days on end”

    This version of the filibuster is historically relevant and offers an opportunity for interesting idiotic statements from senators speaking off the cuff. We’d also get to see who is putting the brakes on the system.

  • anandine

    One confounding problem is that currently a vote to impose cloture takes 2/3 of the whole senate, so even if we made them speak, the Republicans could rotate, while the Dems have to all be there, or the Reps could enforce adjournment. I think it was Kevin Drum who suggested changing to requiring them to actually filibuster and changing the rule to 2/3 of senators present. That way, the filibustering party would have to keep its senators on the floor the whole time.

  • Loqi

    I see “empathy” is a new Republican trigger word. It seems appropriate that they wouldn’t want any judges with a sense of empathy, since none of the Senators have one.

  • Nihilismus

    With the House and Senate controlled by separate parties, now is one of the best opportunities to do away with the filibuster. The Republicans could give up the filibuster and be confident that they could still block liberal legislation from passing the House. Of course, only the Senate is involved in approving Presidential nominations (including those for judges), so the Republicans probably won’t do it.

    Maybe the parties can do something similar to what they did with the “fiscal cliff”. Maybe they can pass a rule now that does away with the filibuster, but which doesn’t take effect until after the next senatorial elections. There would be no pain now, and each side would be betting that they will win the majority next time.

    As a replacement to the filibuster, which was supposed to encourage compromise and better thought-out legislation, perhaps the Senate could pass a rule that allows 40 senators to impose a one-time month-long delay on a pending bill or nomination, giving time for the minority to present their arguments and for everybody to visit their constituents and view polls. After that, an up-or-down vote would be required.

  • otrame

    Reminds me of how hard the Repubs fought to get a line item veto. When the law finally passed, Clinton was in the White House. You could hear the screams all the way down here in South Texas.

    Of course it became moot when SCOTUS knocked it down, but it was fun watching.

  • Michael Heath

    anandine writes:

    One confounding problem is that currently a vote to impose cloture takes 2/3 of the whole senate

    In 1975 a Democratic majority Senate reduced the cloture number to 60 votes from two-thirds of a quorum.

    This why the ailing Senators Byrd and Kennedy made it so difficult for the Democrats to pass bills even when they had 60 caucusing Senators, since those two were frequently absent. That and the fact a handful of Democratic Senators were conservatives whose loyalty was to the conservative movement rather than the Democratic caucus; where they also suffered no repercussions for filibustering their own caucus. Those conservative Democrats were Senators Pryor and Lincoln of Arkansas, along with Nelson of Nebraska and Lieberman of Connecticut.

  • xmnr

    I’ve said this before, but I agree with #1 above:

    1. Eliminate anonymous holds – if you want to be the one to stop a nomination or a piece of legislation, great, but your name goes on it. I’ll buy that’s it is a principled stand, but not if it is anonymous.

    2. Retain the filibuster, but make the party holding things up to actually perform the act, not just threaten to do so. Again, it’s not really the actual act that I want, it’s the loss of anonymity. If you claim that the legislation or nominee is so bad that they don’t deserve a vote from the full senate, so be it, but get up there and actually filibuster it, Mr.-Smith-Goes-to-Washington style

  • Ichthyic

    btw, while it’s absolutely true hypocrisy reigns on both sides of the political fence wrt to changing the filibuster rules…

    there is a HUGE difference in the level of obstructive tactics when the repubs are the minority as opposed to dems.

    …or hadn’t anyone noticed the repubs chucking a sandpit spaz every time Obama tried to do ANYTHING over the last 4 years?

  • Ichthyic

    …compare that to how the dems reacted to W’s first 4 years in office.

    go ahead, I’ll wait.

    *twiddles thumbs*

  • cptdoom

    There is another huge difference between the majority parties in the mid 00s and now. The GOP was threatening to end filibusters altogether – at least for judicial nominations – so that they could cram more fundie flat-earters into the judiciary (after blocking as many of Clinton’s nominees as they could). The Democrats are now talking about returning the filibuster to its historical roots – including 2/3 votes and/or actual speeches to make a filibuster occur – to end Republican obstruction of any and all legislation (the number of filibustered bills has skyrocketed). The Democrats never abused the filibuster under Bush II in the way that the GOP has abused it under Obama.

  • paul

    but get up there and actually filibuster it, Mr.-Smith-Goes-to-Washington style

    Are you proposing a bladderocracy?

  • jakc

    I’m hard-pressed to think of examples where the filibuster was put to good use. Was it used to block the Patriot Act for example? No. In the 1950’s for example, the filibuster was used by a small number of southern senators to block civil rights legislation. Strom Thurmond’s famous 24-hour filibuster of the weak 1957 civil rights act is perhaps the closest thing to Mr Smith’s movie filibuster but unlike the unrealistic ending in the movie, Thurmond’s one-man effort failed. We have a romantic view of the fillibuster, but it has usually been used to achieve bad ends. It isn’t enough to return the filibuster to its historic uses; in the case of civil rights, appproximately 20 senators were able to delay civil rights for many, many years. The filibuster is a bad idea which ought to be abolished.

  • I’d like to think there’s some way of dealing with the issue that would be fair over the long term. The problem is as you say: nobody wants to deal with it except when it’s working against them. Having said that, the massive filibuster abuse the GOP engaged in definitely means something needs to be dealt with.

  • jakc:

    If anything it’s a double-edged sword. Yes, it’s been used in that way, but it can be used for good as well. It’s only really become a problem as people — mostly the GOP — become less and less willing to play ball.

  • jakc

    @ BrianX

    Outside of “Mr. Smith Goes to Washington”, name a time when the filibuster has been effectively used for good. It could be used for good, but frankly, for the most part, it never has been used for good

  • Michael Heath

    jakc writes:

    I’m hard-pressed to think of examples where the filibuster was put to good use. Was it used to block the Patriot Act for example? No.

    The Bush tax cuts were filibustered, forcing to the Republicans to pass them through the budget reconciliation process. That’s why they started expiring a year or two ago.

  • jakc

    The Bush tax cuts that were passed? And then extended by Democrats in 2010 (no doubt to avoid a Republican filibuster if only part of the tax cuts were extended?) So, the filibuster, so far, failed to prevent the tax cuts, and given the impending doom of the world in December 2012, may never have any effect.

    Unlike say the successful filibuster to keep the US out of the League of Nations. Or the generally successful filibusters to prevent the Senate from passing the passing Civil Rights legislation, legislation that was passed only after southern senators hoped that giving Lyndon Johnson a victory on civil rights (however weak the 1957 bill was) would make him an acceptable presidential candidate to northern Democrats. (And for all we can rip on LBJ, he did seem to have a real commitment to civil rights. The southern segregationists like Richard Russell thought – wrongly – that LBJ really agreed with them and was just being cagey, elsewise, they might have filibustered that bill too.)

    Not to belabor this point too much longer but even if we give credit to the filibuster – and surely part of the credit goes to the Byrd rule here, not the filibuster – it, so far, hasn’t been much of a victory. The most you can fairly say is that the threat of a filibuster forced negotiation. Ultimately too, it isn’t clear to me that the Bush tax cuts couldn’t have been made permanent under a budget reconciliation bill, a bill not subject to filibuster.

  • Ichthyic

    So, the filibuster, so far, failed to prevent the tax cuts, and given the impending doom of the world in December 2012, may never have any effect.

    there’s you, always finding the silver lining.


  • Amphiox

    No one ever changes a corrupted or broken rule, especially one with a long tradition, on principle.

    You can look not just at politics, but also the history of sports as well.

    Almost always, it is changed when abuse of that rule becomes so egregious and so flagrant, that changing it becomes an act of convenience and self-interest. When things or so self-evidently broken that the parties invested in the rule have no choice but to change it, for their own self-preservation, or face the wrath of the usually nameless and silent masses who are ultimately in charge (the electorate for politics, the fans for sports).

    What is different this time compared to all the other times is that the abuse of the rule, by the Republicans, has reached utterly unprecedented, and visibly, nakedly unprecedented, levels.

  • dogmeat

    To be fair to the Democrats, even at their worst, they never came close to how the Republicans have abused the concept of filibuster. Their maximum use of filibustered occurred 58 times in a two year congress (1999-2000), the Republicans shattered that record in a single year. Starting in the 110th senate, the Republicans set, broke, then broke again, their own records for use of filibuster. I agree that the arguments are hypocritical, but I think the hypocrisy is tempered a bit by the outrageous abuse of the power.

    On the other hand, I blame the Democrats for allowing the filibusters used to be procedural rather than forcing the Republicans to actually set up their thermos and fruit and start-a-filibusterin’. I think they could have defused this whole thing had they actually started scheduling the Republicans to filibuster and then used the media to honestly present the Republican’s obstruction. That’s why I think Reid was a good minority leader but a terrible majority leader.

  • Ichthyic

    Their maximum use of filibustered occurred 58 times in a two year congress (1999-2000), the Republicans shattered that record in a single year. Starting in the 110th senate, the Republicans set, broke, then broke again, their own records for use of filibuster.

    man, I had to twiddle my thumbs almost a whole day waiting for that.

    I knew someone would finally turn out the numbers.


  • lpetrich

    Yes, I want a return to the talk-talk-talk-talk-talk sort of filibuster. The current state of that parliamentary maneuver is like the fake war between Eminiar VII and Vendikar in ST:TOS “A Taste of Armageddon”. The war is fought by some computers which calculate damage and casualties. Anyone who gets listed as killed has to go into a disintegration chamber, because failure to do so would provoke a real war.

    I had long thought that that scenario was very farfetched, but we have a real-life version of it in what the filibuster has become.