Procedural Reform

by John Holbo on April 2, 2009

Steve Benen complains about the filibuster. Yes, very true.

it’s hard to fix problems like this because objections to procedural stupidities are weak compared to perceptions of present partisan advantage. No one is going to fight for filibuster reform while in the minority. And fighting for filibuster reform while in the majority is always going to look partisan. How, then, do you get what ought to be a non-partisan no-brainer reform?

Would this work? Pass sensible procedural reform, but significantly post-date it? Abolish or significantly de-claw the filibuster, starting in, say, 2012? Presumably the Republicans aren’t planning on being in the minority forever. You could do the same for other procedural problems, like clogged confirmation pipes. Fixing problems several years from now is better than not fixing them ever, if that’s the only way you can do it (Then again, it may be that Republicans are planning on being in the minority forever.)

{ 25 comments }

1

John Holbo 04.02.09 at 2:38 am

I should add: I do realize that in the case of the filibuster it would be sufficient for the Senate to reform it’s own procedures and that this shouldn’t really require waiting until 2012 or whenever. If you are in the majority, and sanity is on your side, you ought to be able to prevail without waiting for 2012. Still.

2

nick s 04.02.09 at 2:39 am

Fixing problems several years from now is better than not fixing them ever, if that’s the only way you can do it

The same applies to the ‘natural-born citizen’ clause, which deserves to go: trouble is, the only time it becomes an issue (absent Birther lunacy) is when one party has a potentially attractive naturalized pol. When there’s no-one around, there’s no real impetus to push through the necessary amendment. Having it post-dated, or alternatively excluding anyone over the minimum age of 35 at its passing, is the way to do it.

3

Warren Terra 04.02.09 at 3:05 am

Hilzoy of Obsidian Wings had a very good post awhile back that taught me things I didn’t know about the rules under which the filibuster works, the most important of which is this:

As things stand now, only one Senator from the side mounting a filibuster has to give up the rest of his or her life in order to be present in the Senate. The rest of them can just catch up on their beauty sleep. The side that is trying to end the filibuster, by contrast, has to keep almost all its members around in case of quorum calls.

As Hilzoy suggests in her post, it could conceivably be possible to come up with a reform that still lets 40 senators block bills but at least costs those 40 senators, at least in terms of convenience.

4

StevenAttewell 04.02.09 at 3:15 am

You do it the same way they did it back in 1975 – you get a supermajority of people to vote to change it, you accept the fact that it’s going to be called a partisan power-grab, and then you move on.

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John Holbo 04.02.09 at 3:19 am

“You do it the same way they did it back in 1975 – you get a supermajority of people to vote to change it, you accept the fact that it’s going to be called a partisan power-grab, and then you move on.”

Alas, I’m not Harry Reid, Steven. Otherwise, I would take your advice.

But seriously. You would have this great harrumph of fake outrage. Republicans would filibuster the attempt to end the filibuster. (Come to think of it, I don’t know whether that would be possible for procedural reform votes, as opposed to legislation proper.) All the Republicans and all the Blue Dog Dems would perceive this move as a threat to their present power and interests and they would fight it tooth and nail. It would be a huge circus and distraction. It might well fail.

It might actually be better or the country to post-date the thing by 4 years just to get it done with less resistance.

6

bh 04.02.09 at 4:44 am

Aiding that harrumph, I’m afraid, would be the sentimental conservatism about institutions that cuts across party lines in the US.

So many alleged progressives here turn into Russell Kirk when discussing the filibuster, the electoral college, the Iowa Caucuses, etc.

7

musical mountaineer 04.02.09 at 6:03 am

Benen:

Without reform, necessary legislation on life-or-death policies may enjoy the support of the House majority, the Senate majority, the president, and most Americans, and still may not pass because a small Senate minority says so.

OMG we’re all gonna die!!!!1!!1!11!

Seriously. If it were up to me, these bloated old blue-faced buffoons (both parties) wouldn’t be able to do anything without a hypermajority of, say, 90 percent. Then you might see some real bipartisanship, debate, genuine efforts at persuasion and compromise instead of this idiotic posturing, and sensible government. As for “necessary…life-and-death” stuff, forget it. None of these clowns can handle anything like that. Iran will have nukes, the NorKs will have missiles, everyone will have hyperinflation and unimaginable debt, and (if you care about global warming, which I don’t) China will have a huge coal-fired economy; but Washington will still be a three-ring circus about AIG or UAW or whatever’s buying votes today. It would be no loss whatsoever if the legislature was completely paralyzed.

…a mandatory supermajority simply to govern.

Okay, suppose I grant that someone ought to be ruling the country with an iron fist governing. Well, who exactly? The legislature? No, just a subset thereof, you say. Ahem: 40% is no small minority, if the proposition is to prevent them from having any say whatsoever. These are elected officials we’re talking about, and their constituencies (who number in the millions) have to live with the laws, taxes, wars, etc. Are they to be denied representation just because the other team got to the magic number 51?

No, I’d say this novel use of the filibuster is about the only thing anybody’s doing right. Getting Republicans to cooperate shouldn’t be any more difficult than netting jellyfish, and if the Dems can’t do it, they deserve their frustration.

8

John Holbo 04.02.09 at 6:14 am

“Getting Republicans to cooperate shouldn’t be any more difficult than netting jellyfish”

I have to say: this is the single least plausible thing I’ve heard all week that wasn’t said by Glenn Beck.

9

StevenAttewell 04.02.09 at 7:15 am

John:
John:
I’ll be frank; I don’t think Harry Reid will have the votes to end the filibuster soon. At the best, it would have to wait until 2010, where Democrats can hopefully pick up enough seats to not only cross the 60 line, but also put us over 51 without Bayh’s little coterie of Blue Dogs (altho his coterie is very wobbly). It would also have to be done wieth the realization that you might lose at least a part of your majority, and that would make getting it done critical, because otherwise you’ll lose the ability to pass legislation for a long time.

And I agree you’d have a huge outcry – but you’d have that no matter how you structure it to seem reasonable. The people on the other side aren’t stupid, and they know from a very level-headed, realpolitik place that institutional reform of this nature will always be bad for them. They’re never going to cooperate under any circumstances, because they know that all other things being equal, veto points privilege the forces of conservativism rather than progressivism. Historically speaking, the filibuster has really been a right-wing element; Democrats were lousy at maintaining filibusters from 2000-6, we didn’t prevent Bush from passing anything except Social Security privatiation, he got his 2 Supreme Court nominees and enough of his judicial nominees. The best that “reasonableness” would offer is slightly less credibility for their outcry, but that’s poor coinage. We’ve seen how well it spends with the fight over the stimulus.

Ultimately, I’m a big believer in power as dynamics as opposed to currency. You don’t lose power by using it, as long as the results are popular; instead, you build power by changing the normal institutional mechanisms and habits and by changing the expectations and thinking of the people who work within them. So yes, there would be a hue and cry – but without a filibuster, how exactly are Republicans going to obstruct you from moving on, changing the story of the day and passing a whole bunch of popular legislation, and then confronting the “partisan power grab” argument two years down the road?

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StevenAttewell 04.02.09 at 7:16 am

* Should only be one John there.

11

jacob 04.02.09 at 7:56 am

If you ask me, the best way to end the common threats of filibuster would be to actually have filibusters. If Republicans had to actually stay awake all night reading the telephone book and remembering the procedures for them to retain control of the floor so no one could call the question, there’d be a lot fewer filibusters.

In the 1940s and ’50s (and later?) ending the filibuster was a major plank in the civil rights platform, because Southern Democrats used it to block antilynching (and other civil rights and progressive) legislation. But even then, one didn’t need 60 votes to get through any piece of legislation, because it was a pain in the ass to do it. Bring back that pain in the ass, and you’ve fixed the problem.

Moreover, the advantage to this solution is that it can be done instantly, since all it is is calling the Republicans’ bluff. No change of the rules required.

12

salient 04.02.09 at 11:26 am

If you ask me, the best way to end the common threats of filibuster would be to actually have filibusters. If Republicans had to actually stay awake all night reading the telephone book and remembering the procedures for them to retain control of the floor so no one could call the question, there’d be a lot fewer filibusters.

To be clear, the filibuster as shown in Mr. Smith Goes To Washington is not the filibuster of the real world. As the rule stands, there’s no need for anyone to do any of this in order to maintain a filibuster. They can if they want, for dramatic effect. Or they can just say “I observe the absence of a quorum” umpteen thousand times.

So, to require an “actual” filibuster along what you describe would require a change in the rules. If we assume we do have the necessary Senators are ready and able and willing to change the rules, why bother with trivial change like “you must actually keep speaking” ?

No change of the rules required.

This is a false statement.

Historically speaking, the filibuster has really been a right-wing element; Democrats were lousy at maintaining filibusters from 2000-6, we didn’t prevent Bush from passing anything except Social Security privatiation, he got his 2 Supreme Court nominees and enough of his judicial nominees.

Amen. This can’t be said often enough. I have a hard time believing the filibuster is any kind of Potential Force for Awesome Good. The filibuster has a rich history of blocking progressive legislation, and no substantial history of blocking regressive or reactionary legislation.

13

Liam Hegarty 04.02.09 at 11:30 am

I agree with Jacob. Actual filibusters might also encourage some of the ancient senators to retire as they won’t have the requisite strength to pull a Jimmy Stewart.

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Steve LaBonne 04.02.09 at 12:56 pm

So many alleged progressives here turn into Russell Kirk when discussing the filibuster, the electoral college, the Iowa Caucuses, etc.

When you think about it, the US is an INCREDIBLY conservative country. We can’t even have reasonable currency (bills of different sizes / colors, $1 and $2 coins) or the metric system, let alone real reform of hidebound governmental institutions like the Senate, because so many Americans- yes, even self-styled “progressives”- are so goddamn allergic to change of any kind. I wish I knew what causes this and what to do about it.

15

Bloix 04.02.09 at 4:19 pm

“And fighting for filibuster reform while in the majority is always going to look partisan. ”

I don’t believe this is the real problem. I believe that the real problem is that there are many “moderate” Democrats – that is, Dems on the take from major corporate interests – who like the filibuster, because it makes them important. If you need only 51 Dems to get something passed, who cares what Ben Nelson wants? But if you need 60, then it’s crucial to please Ben and eight others who can extract big concessions for their paymasters.

16

Matthew Kuzma 04.02.09 at 4:43 pm

You haven’t heard about the secret “permanent minority” strategy? It’s also called the F-street project.

But seriously, I feel like I’ve heard of people successfully doing this in the past.

17

Sebastian 04.02.09 at 4:44 pm

“Or they can just say “I observe the absence of a quorum” umpteen thousand times.”

Filibusters haven’t been tested in the youtube era. It wouldn’t take many youtube successes to kill routine fillibusters if it was standing in the way of something important so long as you actually made the Senators do something to filibuster.

18

Steve LaBonne 04.02.09 at 5:15 pm

I have precisely the same impression as Bloix. And keep in mind that Harry Reid is himself ideologically closer to Ben Nelson than he is to the majority of his caucus.

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Bloix 04.02.09 at 10:49 pm

You can read a list of the Democratic senators who like the filibuster here:
http://tpmdc.talkingpointsmemo.com/2009/04/26-democrats-climate-change-should-be-filibustered.php

20

jacob 04.03.09 at 12:56 am

Salient-

I’m confused. How is saying “I observe there is no quorum” umpteen thousand times different from reading the telephone book, in that it requires an actual investment of time and energy, around the clock? I’m think less of Mr. Smith Goes to Washington than Strom Thurmond’s Civil Rights Act filibuster (filibusters? I can’t remember anymore).

My point is actually less about the sheer physical difficulty of staying awake and active for so long (though that’s part of it) but that the way things are done now, if a cloture motion fails to get 60, the storyline is just “oh, well, that’s how things work in the Senate.” If people have to actually continue debate for a while, the storyline can become “Republicans are putting a vast amount of heroic effort into stopping x, y, and z good things.”

21

salient 04.03.09 at 1:26 am

I’m confused.

Confusion is understandable (and I mean that without any sarcasm). I highly recommend this link for a brief explanation of the differences.

That article even explains why Thurmond’s burst of protest is a bad example (his fellow Senators let him go on for awhile, it was all theatre to humor him, but it wasn’t a necessary component of a filibuster. It’s weird; I refer you to the linked article:

As both Reid’s memo and Dove explain, only one Republican would need to monitor the Senate floor. If the majority party tried to move to a vote, he could simply say, “I suggest the absence of a quorum.”
The presiding officer would then be required to call the roll. When that finished, the Senator could again notice the absence of a quorum and start the process all over. At no point would the obstructing Republican be required to defend his position, read from the phone book or any of the other things people associate with the Hollywood version of a filibuster.

In particular, calling roll takes time. So, noting the absence of a quorum would be an occasional act, and would not be very strenuous. Furthermore, another Senator could step in and note the absence of a quorum. All in all, the procedure would be wearying to the party attempting to call a vote (because they need to keep calling roll whenever it is requested), not the opposition (who just needs to periodically request a roll call).

As for whether forcing this issue is a good idea, I leave you to read the description of a filibuster in that article, and think about how the news networks would cover it. Republicans Saving the Nation from Socialism, etc.

22

james 04.03.09 at 1:43 am

It may be possible to remove the filibuster. This can be done by vote in the Senate. Removing the natural born citizen clause requires an actual constitutional ammendment. I don’t see that happening. Neither party has an advantage in advocating for that.

23

musical mountaineer 04.03.09 at 3:02 am

…implausible…

Wow, I feel so…dismissed. I suppose it’s fair enough, since what most commenters here call “progressive”, I call “bad”. But I’m still willing to pitch in if I can.

Look: most Republicans (by which I mean the elected ones, not the proles) are not exactly titans of intellect or integrity. In fact, the big-name Republicans are all “progressives” in principle (though obviously not “progressive” enough for some people). Just as important, they’re all politicians, which means they’re voluntarily disconnected from anything you or I would recognize as reality. For them, Politics The Game is everything. Suppose the Earth was on course to fall into a black hole; these people would think of nothing but what political advantage might be gained in the circumstances. (I hasten to add that I don’t quite believe this; but it would be foolish to quite disbelieve it either. The world of political ambition is a world without limits in law or psychology.)

Now, say you’re the president. In nominal opposition to your “progressive” agenda are some number of Republican senators, who understand little and stand for less. You need only persuade about one in five to support any given subset of your agenda, and you win the day. You have ample means to bribe, coerce or deceive them, and no scruples on either side. So it should be no more difficult than netting jellyfish.

If it still proves difficult or impossible, you must be a planet-sized, flashing-neon tragic loser. Even a lowest-quintile Republican senator (heck, even your fellow Democrats) can’t help but notice how your hubris and incompetence blot the sun from the sky, and threaten destruction to anyone foolish enough to align with you.

That’s about the only plausible explanation.

24

musical mountaineer 04.03.09 at 3:02 am

…implausible…

Wow, I feel so…dismissed. I suppose it’s fair enough, since what most commenters here call “progressive”, I call “bad”. But I’m still willing to pitch in if I can.

Look: most Republicans (by which I mean the elected ones, not the proles) are not exactly titans of intellect or integrity. In fact, the big-name Republicans are all “progressives” in principle (though obviously not “progressive” enough for some people). Just as important, they’re all politicians, which means they’re voluntarily disconnected from anything you or I would recognize as reality. For them, Politics The Game is everything. Suppose the Earth was on course to fall into a black hole; these people would think of nothing but what political advantage might be gained in the circumstances. (I hasten to add that I don’t quite believe this; but it would be foolish to quite disbelieve it either. The world of political ambition is a world without limits in law or psychology.)

Now, say you’re the president. In nominal opposition to your “progressive” agenda are some number of Republican senators, who understand little and stand for less. You need only persuade about one in five to support any given subset of your agenda, and you win the day. You have ample means to bribe, coerce or deceive them, and no scruples on either side. So it should be no more difficult than netting jellyfish.

If it still proves difficult or impossible, you must be a planet-sized, flashing-neon tragic loser. Even a lowest-quintile Republican senator (heck, even your fellow Democrats) can’t help but notice how your hubris and incompetence blot the sun from the sky, and threaten destruction to anyone foolish enough to align with you.

That’s about the only plausible explanation.

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StevenAttewell 04.03.09 at 3:27 pm

Musical Mountaineer:

I don’t know where you get the idea that Congressional Republicans are progressives. Democrats and Republicans at the moment have quite stark ideological differences, and “moderate” Republicans are a dying breed under threat of being primaried out (see Specter, Arlen),

I don’t buy the argument that they’re all non ideological hacks – that certainly doesn’t explain why Judd Gregg would do what he did, or why Arlen Specter would do what he did, or why Ryan’s budget called for the privatization of Medicare and the freezing of non-discretionary spending for five years. I think the strongest your case would be is that Republican politicians are non ideological hacks who recognize that the primary voter base is so ideologically committed that they couldn’t get re-elected if they indulged their hackiness by taking bribes from the opposing party.

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