End the Filibuster!

Obama Appeals Court Nominee Patricia Millett

Obama Appeals Court Nominee Patricia Millett

It is dangerous to play with tradition.   The Senate and House function on a set of time honored traditions and unwritten rules of the game. The filibuster is one of those traditions.   However, the poisonous partisanship in Washington, unprecedented obstruction by Republicans in the Senate, and the danger of creating eternal gridlock means its time for a change.

Senate rules adopted in 1806 created the potential for a filibuster by eliminating the ability to move the previous question.   The idea was that Senators should have as long to speak as needed before a vote.   The idea this would be used for obstruction was not considered.  In 1837 the first filibuster was used, but it remained rare until into the 20th Century.

After 12 Senators used their capacity to stop the Senate from voting on a bill by continuing debate (in 1917, to allow President Wilson to arm merchant ships), the Senate created a cloture rule, allowing 2/3 of those voting to end debate.   This still meant that a group could stop consideration of a bill, but it would have to have a broader base of support.

More importantly, a filibuster meant that a Senator or group of Senators had to keep talking; debate literally had to continue.  Once Senators stopped speaking on the floor, debate was over and a vote could be taken.   Strom Thurmond filibustered for 24 hours against the 1957 Civil Rights Act.   Usually filibusters ended on their own without invoking cloture.   When Senators filibustered the 1964 Voting Rights Act a cloture vote was held for only the second time since 1927.  Simply, the tradition of the filibuster is that it was rare and required Senators be present and continue talking.

The filibuster is rare by tradition; the current use is recent and dangerous

The filibuster is rare by tradition; the current use is recent and dangerous

By 1979 the rules had changed to allow 60 Senators to invoke cloture, but not requiring speakers to remain continuously on the Senate floor.  Unfortunately, both parties found this an easier to way to try to obstruct votes they didn’t like and the use of filibuster increased dramatically.   Mitch McConnell once infamously said it is the “rule of the Senate” that you need 60 votes to make a law.

Both parties abused the filibuster.  In a battle over judicial nominees Republican Senate Majority Leader Trent Lott threatened the “nuclear option” of simply making cloture a majority vote and ending the filibuster.   Vice President Cheney was ready to sit in as President of the Senate (a role the VP officially has) and rule that the filibuster cannot be used for judicial nominees.  Senators wary of changing rules and traditions avoided that via compromise.

Trent Lott and Dick Cheney threatened to eliminate the filibuster when the Democrats abused it.

Trent Lott and Dick Cheney threatened to eliminate the filibuster when the Democrats abused it.

In that case, the Democrats were abusing the filibuster and turning it into a tool to obstruct.  But the use of obstruction has grown to unprecedented proportions with McConnell (R-KY) as Senate minority leader.   It no longer is a rare and dramatic way to try to prevent a vote on something very emotional or controversial (a method that in the past usually failed) but has become a defacto rule that says without 60 votes nothing at all controversial can pass.

More importantly, it is being used to block the President from undertaking his constitutional authority to make appointments, including again to the judiciary.

Mitch McConnell once filibustered his own motion!

Mitch McConnell once filibustered his own motion!

Patricia Miller is one of three appointments to the DC Court of Appeals to fill vacancies.  Right now there are 8 Judges on the Court, four chosen by each party.  The Republicans fear that if President Obama names all three, the Court might rule in a more liberal fashion.   But that’s life – the President gets to choose the nominees and the Senate approves.   It’s directly from the Constitution.

Looking for a rationale for their clearly political motive to obstruct, they claim the Court does not have enough work for 11, or even 9 Justices.  But the court was just as “under worked” when they argued passionately to put President Bush’s nominees on the court.    Simply, the filibuster and current cloture rules have to go.

If the Republicans are allowed to abuse the filibuster in this way, to make it require 60 votes for anything to pass, and to use it to block Presidential appointments, the Democrats will do likewise.   They have in the past.    The current rule is a cause of dysfunction.

Though it will limit the Democrats at some point in the future, Reid must be bold enough to change the cloture rule now

Though it will limit the Democrats at some point in the future, Reid must be bold enough to change the cloture rule now

The only solution:  end the filibuster by making cloture a majority vote in the Senate.   That way everything gets voted on and a minority can’t cause gridlock to appease their base or stop the majority from passing controversial bills.   That way a President can execute his authority to make appointments without having well qualified choices denied due to politics.  Patricia Millett is very well qualified with strong bipartisan credentials.

The country right now needs to have a functional Washington.   The abuse of the filibuster in recent years by both parties has morphed it into something that is new and dangerous, not part of the Senate traditions.   So either go back to forcing Senators to keep talking until they run out of energy or desire, or adopt a new cloture rule requiring a simply majority vote.

 

 

 

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  1. #1 by thenewamericanlondoner on October 30, 2013 - 8:27 pm

    Whew. That’s a risky post-title. After all, the filibuster is an American tradition, peculiar to us that stirs us up to, well if not engagement, at least entertainment. And has often — correct me if I’m wrong — been seen as one of those important checks/balances. Still, your reasoning is sound. I’m convinced.

    Having said that, it worked for Wendy Davis, didn’t it?

  2. #2 by SShiell on October 31, 2013 - 2:34 pm

    I seem to recall the current rules for the filibuster being put in place during a time when the Democrats were in power in the Senate. And it seemed to work well enough for them when the GOP had ascendancy. Now, not so much fun for the Dems.

    It also seems important for there to be some level of Bi-Partisanship in government. One party rule is not so much fun – like in the House (as far as the Dems are concerned). It also seems to me that should the Dems retake the house with the filibuster rules changed, then there would be no limit to what a single party could do. No checks. No balances. Sorry, no sale!!! I kind of like some checks and balances in place, even when they are against my leanings.

    Also, I don’t recall you having problems with the filibuster when the GOP had a majority in the Senate. Seems I recall you voicing support at the time when the Dem leadership was shouting to the heavens about the glories of checks and balances and such (remember when the Dems preached that dissent was patriotic – now not so much). But now when the Democrat/Obama agenda is being caught up short you sing a far different tune.

    • #3 by Scott Erb on October 31, 2013 - 2:44 pm

      The filibuster (as the post notes) was almost never invoked until cloture rules were changed. Now it’s being used so often that it creates dysfunction. I would not oppose going back to the original rule, but as it is, it doesn’t work. The GOP could have the majority in both houses and the Presidency in 2016. A rule change ultimately would prevent both parties from blocking the other.

      You are being dishonest when you try to assign me positions in the past I did not hold. Yes, dissent is patriotic, not abuse of the filibuster.

      Also, the filibuster has NOTHING to do with checks and balances. That refers to different branches of government checking each other. The filibuster as it now stands is an abused rule in the Senate that needs to be done away with, and then the Senate can vote. So I hope Harry Reid (who has minority leader did defend the filibuster – and abuse it) decides to just ram a rule change down the Senate GOP’s throat. Then both parties will be done with this dysfunctional practice.

      • #4 by SShiell on October 31, 2013 - 9:23 pm

        So you agree that it is a dysfunctional practice? Funny. You said nothing when the Dems were using it against the GOP. But then I would not expect you to do anything that would in any way upset the Progressive apple cart you are so enamored with.

        Cheers.

  3. #5 by Scott Erb on October 31, 2013 - 9:56 pm

    No, I disagreed with it even when the Democrats were using it. I have been in favor of either going back to the old filibuster rules or making cloture votes by a majority for a long time. You really shouldn’t assign me positions I do not and have not held, SShiell. That’s your fantasy, not reality.

    • #6 by SShiell on October 31, 2013 - 11:19 pm

      OK, tell you what. Instead of leaving you there wriggling on the hook, I’ll give you a chance to “unhook yourself”. Give me a link to an entry where you have blasted, abused, corrected, or even just plain disagreed with the Democrat’s use of the filibuster back in the day when they were the minority power in the Senate. Should be pretty easy to do. You have been blogging for some time and/or making entries on this and other forums for quite a number of years (I know that for a fact). So it should be easy enough for you to show me where I am wrong since I “assign me positions I do not and have not held, SShiell.”

      Link us up and show me where I am wrong. No quotes mind you. Quotes can be made up. Not that you would so stoop – but just to be on the up and up, give us a link. Prove me wrong.

      I’ll wait.

      • #7 by Scott Erb on November 1, 2013 - 2:49 am

        You have the burden of proof. You make a claim that I supported the filibuster when the Democrats used it. You need to show a link. You can’t, because there is none. Note: I do not tolerate personal attacks on this blog, against me or any commentators (I will not tolerate personal attacks against you either). You would be advised to talk about the subject at hand rather than people. You are making false claims about me and then challenging me to prove your claims to be false. That is irrational. Taunting and personal attacks are not tolerated in my comments, but challenging and provocative comments are welcome. Focus on substance, not the individual. Re-write your comments in that way and they will be welcome. I love disagreements, but it shouldn’t get personal.

      • #8 by SShiell on November 1, 2013 - 5:07 am

        Not once did I get personal. This was not a personal attack – You simply made a statement and I challenged it. For a person so intent on furthering the progressive cause, it was an easy assumption that you would and did support the filibuster when employed by the Democrats. And like I said, it is an easy fix – or is it.

        Still Waiting.

  4. #9 by Scott Erb on November 1, 2013 - 7:01 am

    SShiell – you made a false claim about my position in the past, and you couldn’t back it up. Then instead of honestly admitting you couldn’t support it, you did a weasel job and tried to say I should prove it not true. Apologies are a sign of strength – I teach that to my kids – you should apologize for making a personal claim you could not support and which was wrong. If you can’t, that speaks to your character.

  5. #10 by SShiell on November 1, 2013 - 8:17 am

    I researched your “claim” that you have been supportive all along of “making cloture votes by a majority.” After an exhaustive search through this and another blog that you frequent, here’s what I found:

    From 15 October 2008; http://www.qando.net/details.aspx?Entry=9498
    Your comment in its entirety as it regards cloture: “It takes a majority to pass most bills. In the past, filibusters were used to try to prevent a vote. To make it easier to overcome filibusters, the rules were changed essentially moving the requirement to end a filibuster from 67 to 60, and not requiring long unending speeches. Lately, both parties have been abusing the filibuster often by not allowing important bills to come to a vote without getting 60 votes to end debate. But anyone who says you need sixty votes to approve a bill is objectively wrong. Once the vote is made to allow a bill to come to the floor, one who voted yes to having the vote can still vote no on the bill itself. And that bill does not need sixty votes to pass. Get it? Thank god you don’t teach.”

    As many times as cloture was discussed in that “other” blog (QandO.net), this is the only comment of note that I discovered. Nor did I find any such comment in your current or previous blog – where those files were available. And nowhere in the comment above do you mention your desire to go back to the “good ole days” of the traditional filibuster. To be fair you do, in this instance, admit both parties of “abusing the filibuster rule” but that is as far as you went – there.

    But then again, to be fair, I do not know all of the forums where you may have provided comments or opinions. That should be easy for you to provide, if it is as you claim that you have previously been vocal about your position.

    For myself, I have provided due diligence in this matter. I have found a position you have taken in the past regarding the filibuster but it is lacking what you clam that “I have been in favor of either going back to the old filibuster rules or making cloture votes by a majority for a long time.” This is no longer a claim. I have backed my position up, can you?

    Apologies are indeed a sign of strength – when they are warranted. I don’t provide an apology just because one is demanded of me. Apologies are given when they are deserved. Prove to me you are deserving. Prove me false and I will apologize. That is unless you think your protestations alone are all that is needed in which case you, and anyone else who thinks that is all that is needed, can pound sand. Nothing personal.

    • #11 by SShiell on November 1, 2013 - 8:59 am

      We could go round and round on this all day. I cannot prove what you have not written. So, there may be an elegant way out of this – Merely state that what you claim has been your position all along but you had just not provided written comment to that effect. That is, if it is true . . . .

  6. #12 by Scott Erb on November 1, 2013 - 9:09 am

    SShiell, just apologize for making a false claim and be done with it. You’re the equivalent of a cop who goes to a house and says “I think you robbed the store the other day. I have absolutely no evidence for it, but you need to prove you didn’t do it.” The quote you provide above supports my point – I opposed abuse of the filibuster in 2008. I opposed making it 60 votes to pass anything as being contrary to what the filibuster was traditionally about. You have supported my position, and I thank you. Now, in the past I’ve said something unfair to you, you complained, and I apologized. Show the same kind of honor please.

    • #13 by SShiell on November 1, 2013 - 11:58 am

      I made no false claim. You said “I have been in favor of either going back to the old filibuster rules or making cloture votes by a majority for a long time.” I took exception. Nothing in the comment I provided said anything about a “majority.” To you that may be splitting hairs, but to quote someone somewhere, “Words Matter.” In order to get an apology from me, show me you deserve one. So far, not so much. Until you provide proof of your statement, pound sand.

      • #14 by Scott Erb on November 1, 2013 - 12:20 pm

        Choose honor over weasel words. Everyone can see what you accused me of. You know there is no evidence that I was fine with the filibuster when the Democrats used it, and you made that claim. You could say “OK, I made an assumption and I have nothing to back it up, sorry.” Or you could say something to the equivalent of “it depends on what the meaning of is, is”. Your choice. I’m OK either way – your choice reflects more on you than it does on me.

  7. #15 by SShiell on November 1, 2013 - 2:10 pm

    Recently Bob Costas, the sportscaster, took time from as sports event to go on a rant about the Washington Redskins. The rant was about how the name “Redskins’ was a slur and degrading, and etc., etc. I found his argument disingenuous at best and BS at worse. Why? He had been a sportscaster for 30+ years and in all that time he had used the name Washington Redskins hundreds of times and not once in all those years did he question the effect of the name. he then continued the broadcast and the name and logo was used dozens of times.

    I have lived in the DC general area for over 20 years and in every one of those years there has been more than one protest, sit-in, or march against the team for the use of the name. This has been an issue for all of these years and then some. And not once in all of those years did Costas say a word about it. I found his new found horror at the name “Redskins” to be laughable to say the least.

    The same with you, Erb. For years the filibuster rule has been with us. As you show us in your piece, it use to be 67 votes and was changed to 60. As you yourself state, and I acknowledged, both parties have abused it. But you wait until now, when the Democrats are in the majority and being discomfited by the current rule, to all of a sudden have enough of a problem to say “End the Filibuster!”

    When challenged you fall back on “Well, I was against it long before I was against it” BS line. I called you out on it and for that you claim you honor has somehow been besmirched? Or that I have sacrificed my own honor by doing so? Grow up, Erb. If this is what you call a violation of one’s honor, you don’t know the meaning of the word.

  8. #16 by Denise on November 11, 2013 - 3:03 pm

    Good to see you’re still at it, Erb. Hope that all is well.

    Denise

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