Balkinization  

Thursday, January 24, 2013

The Senate Filibuster Deal

Gerard N. Magliocca

Rarely has so much been given away by so few for so little. We can always hope that the Senate will exercise more restraint with respect to the filibuster, but don't count on that. The only people who will benefit from this are professors who write about Congress.

Comments:

What exactly do you think has been given away?
 

The rights of the majority?
 

Not a good week for Democrats. First, Frontline (properly) indicts the Obama administration for refusing to go after any Wall Street executives. Then this cave which bears all the marks of an inside job that was set from the beginning. This is why people refuse to vote. I wonder if the Democrats in Washington have any clue whatsoever how totally corrupt they look. How in league with the elite every bit as much as the Republicans and how phony their claims to be progressive they appear to be. How little they seem to care whether they look corrupt or not.

I would like to see almost the whole lot of them -- a few obvious exclusions -- cleaned out by progressive challengers in upcoming primaries.
 

Of course mls will also benefit from his defense of "The Tyrannosaurus of the Minority" at his blog.
 

Is this complicated? Reid has been in the minority, and fully expects to be in the minority again at some point, possibly as soon as two years hence. He doesn't want to get rid of a rule he'll be taking advantage of himself, just for short term advantage.

The activists can fantasize about rules changes which will bite you as soon as the wind shifts, the pros are in it for the long game.

Filibusters will be abolished under one of two circumstances:

1. The majority have a reasonable expectation of remaining the majority, (But not a supermajority!) for a long series of election cycles. But how do you get a situation where you're confident of remaining the majority, but don't have a supermajority?

2. The majority think the end game has arrived, and there ISN'T a long term anymore to worry about.
 

Will this modest change improve the image of Congress, or vice versa [after all, Congress has not hit ground zero as yet].

And in Brett's #2, is the end game a new Mayan-type prediction?
 

It only takes a simple majority to change Senate rules.

The Democrat Senate majority simply decided they did not want to give up the power of the filibuster in case the voters returned them to the minority say in 2014 or 2016.

No real surprise.
 

The "activists" include someone who was a legislative intern in the 1970s. The "activists" are aware of the fact that the Senate has changed hands over the last few decades.

The proposed reforms were not to "end" the filibuster. But, various senators, partially since it adds to their personal power and the institution encourages conservatism, opposed limited reforms. Likewise, though important, it simply is not a major issue for the public. Ask the average person, s/he probably is not aware you need 60 votes.

The filibuster has been used quite differently by one party in recent years, skewering the system. When this occurs, common law rules like that should change to balance things out. Long term, this will also benefit Democrats, in part since even in the Bush years, they simply did not use it like this.

So, even when they are out of power, they won't 'benefit' as much since (happily) they respect governing more.
 

"The Democrat Senate majority simply decided they did not want to give up the power of the filibuster in case the voters returned them to the minority say in 2014 or 2016"

This is a real possibility. Kerry's ego-centric move to Sec. of State might mean a GOP pick up by Brown in Massachusets. More importantly, the Dems gun control talk and measures is likely to go very badly for them in contests such as North Carolina, Colorado, West Virginia and South Dakota. The party is going to be branded as anti-2nd Amendment, and in off-Presidential elections that is very bad.

"Ask the average person, s/he probably is not aware you need 60 votes."

I really think the Democratic Party and Obama need to use their resources to make voters aware of these kinds of things. The anti-democratic plays the GOP is involved in now, gerrymandering districts so that they can get 1 million votes less nationwide yet still maintain the House and now working to get several blue states to divide electoral votes by congressional district, need to be pointed out by the Democratics until the GOP is shamed by public outrage to trying to actually win elections by getting more voters than their opponents.

"they won't 'benefit' as much since (happily) they respect governing more"

Given their philosophical stances it's not really surprising that the Dems might want to pass bills but the GOP's goal is to stop bills. A 'small government' party is going to measure success by bills stopped (unless those bills are cutting government, which rarely actually happens).
 

This comment has been removed by the author.
 

The Republican Party is not the Libertarian Party. If the House passed things and the Republicans controlled the Senate, would they similarly "small government" like stop things? Also, the use of filibusters apply also to nominations, including federal judges. Not being libertarians, Republican senators didn't filibuster executive friendly Bush judges and their current anti-Obama moves in that department are ideologically logical, but not simply a matter of "small government."

Also, why is Kerry "egocentric" for wishing to be Secretary of State? He has had a long career in the Senate with a foreign policy focus. He is well qualified and since leading Republicans support him, it would be a logical move to save valuable party resources.

Is it that they might lose a Senate seat? On the merits there, unlike last time, the Democrats have a much stronger candidate & more time to run the campaign & Scott Brown, already a one time loser, no longer a surprise. It is quite unclear if he even wants to run & if he did if he actually is their best option.

Poll data suggests the "gun talk" is actually quite popular particularly if they don't pass an "assault weapon" ban. Background check and other measures are much harder to demonize, especially since Newtown provides an emotional concrete event.

Query if Republicans might be the one weakened on this front, any attempt to use the issue providing a chance to show border senators' opposition to an assault weapon ban while support for sensible regulations while opponents can have the death of 20 children put around their neck. This might be deemed in bad taste in some fashion, but politics isn't beanbag.
 

"The Republican Party is not the Libertarian Party"

True, and it is not so much the actual Senators I'm talking about, but rather 'movement conservatives' and the Tea Party. They are not angered by a dysfunctional Senate because they see it as thwarting bills that would increase government (as to bills that might come up in a GOP controlled Senate to 'cut' government, most movement conservatives simply don't buy that seeing as how so many of these 'deregulatory' bills retain much regulation in their eyes and 'spending cuts' are often simply cuts in projected increases).

"why is Kerry "egocentric" for wishing to be Secretary of State?"

Because it could hurt his party. I hope you are right about his seat staying Democratic, but surely there exists other Democratic diplomats who could have taken the SOS seat and Kerry could have held that seat.

"Query if Republicans might be the one weakened on this front"

That's a reasonable view, but I think unlikely. There was no more skilled politician that pushed gun control measures than Bill Clinton in the 90's, focusing on 'cop killer' bullets and weapons and such. And the result? His party historically lost the House. In off-year elections gun rights proponents vote and are single issue, gun control proponents not so much.


 

You now limit your original statement which was "the GOP's goal" to "movement conservatives" or the like. Tea Party types repeatedly support more federal government when it involves conservative policy. But, regardless, that isn't what you said, whatever your meant.

As to Kerry, the first option was someone else and we saw how that went. If a strong candidate was not available and Scott Brown already losing to "Professor" Warren, the "egotistical" case would have been stronger.

Newtown wasn't there, even if some individual much less horrible crimes could be cited. If instead of some 'assault weapon' ban was at issue something more comprehensive as here, it could have gone differently. Likewise, Bill Clinton's attempt at health care went differently, in part because the approach was different.

Even some pro-reg types don't find "assault weapon" bans very helpful. OTOH, more so than there, some regulation has broad support and the NRA is coming off as a bit insane, including having ads targeting the President's daughters. Don't recall similar ads against Chelsea, but I might be misremembering.
 

Our yodeler posits:

"It only takes a simple majority to change Senate rules."

But he does not elaborate on whether a simple majority may do so at any time or only at the beginning of a "new" Congress.

Then our yodeler proceeds with his usual simplicity in complex matters and suggests that the Democrats' decision not to pull the plug on filibuster was from fear of losing their majority in 2014 or 2016. But if this is as simple as our yodeler says, what's to prevent a simple majority of GOP Senators from pulling the plug on filibuster in 2014 or 2016, whether at the beginning of each "new" Congress or any time in between?

No, the decision was not so simple as suggested by our Simple Simon yodeler. Perhaps in time we'll get a better idea of why it came out this way, like maybe the votes were iffy.

[Note: I had expected mls, our yodeler's apparent soul-mate, to challenge our yodeler's simplicity. But ....]

 

I'm back after a scroll through Daily Kos to point to a post there yesterday on our very own yodeler's mentor:

"Tom Tancredo loses bet, must become a pothead now."

Can our yodeler be far behind in the Mile High State (of mind)?
 

Shag- I hereby affirm that Bart’s statement, ie, that a majority can change the rules at any time, oversimplifies the situation. As does the December 12 letter to the Senate, which says that a majority can change the rules, but only at the beginning of a “new Senate.” Perhaps now that the Senate has acted, Professor Maggliocca will be willing to defend the various statements made in the letter.

I also think that Reid’s reasons for not using the “nuclear option” are more complicated than simply wanting to protect against the Republicans doing the same thing in the future. I think a lot of people, including law professors who like to give advice to the Senate, underestimate the collateral consequences of changing the rules on a party-line vote.

Consider the simplistic question of whether Reid “has the votes” to change the rules by a simple majority. That’s the not the only question that matters to Reid. He also has to consider how many of his votes will be reluctant or downright resentful, and whether they will turn around and say “I told you so” if the changes to the rules end up making the Senate even more dysfunctional than it is now.

Reid also knows that if he uses the “nuclear option” (which is what the media will call it regardless of whether you agree with the term) there will be plenty of wags who will label everything bad that happens thereafter as “nuclear fallout,” whether it is related or not.

Even if we assume that there would be no significant blowback to changing the rules, and that the Senate would settle in easily to being a majoritarian institution, this isn’t necessarily such a good thing from Reid’s perspective. He now has to change his entire political calculus because he can no longer blame Republican filibusters for everything that doesn’t get through the Senate (some of which he may prefer not get through, such as gun control) and he won’t be able to share the blame for things that do get through that don’t turn out so well.

 

Thanks, mls. There are very few really simple problems in constitutional law especially with political overtones. I did wish to see an actual speaking filibuster rule adopted, especially since my minimal cable commitment now includes C-SPAN. A little Senate comedy in the course of a filibuster is preferable to Judge Judy and the other TV "judges."
 

"You now limit your original statement which was "the GOP's goal" to "movement conservatives" or the like."

I'm not sure this limits it much, few GOP pols are going to put themselves against movement conservatives right now.

"Tea Party types repeatedly support more federal government when it involves conservative policy"

Of course there is some cognitive dissonance in the Tea Party's "small government" philosophy, but it is still the explicitly stated philosophy. They perhaps don't realize how obstructionism might limit programs they want to see enacted, but that just isn't driving them right now.

"Likewise, Bill Clinton's attempt at health care went differently, in part because the approach was different."

Obama's health care approach largely cost the Dems the House in 2010. Clinton did talk about comprehensive gun control, it was he that put in the Brady Bill as well as his assault weapons ban. People who are not sympathetic to the NRA saw them as over-extreme then too, but these are single issue and devoted voters who turn out in off-year elections. 2014 could be bad for the Dems...
 

Shag:

Nothing prevents a new GOP Senate from changing rules to eliminate the filibuster, except the same desire to maintain this power if they return to the minority keeping the Democrats from eliminating the filibuster today.

The filibuster is popular among Senators because it is practically impossible to lose power under this rule.
 

Our yodeler's:

"The filibuster is popular among Senators because it is practically impossible to lose power under this rule."

is one of the reasons Sandy Levinson has "Second thoughts" on "Constitutional Faith."

So our yodeler joins mls in "The Tyrannosaurus of the Minority" club, indeed a club!
 

Here's BREAKING NEWS from TPM on our yodeler's mentor:

"Tancredo Backs Out Of Bet To Smoke Pot!"

Damn, I was looking forward to a "joint" appearance of our yodeler with his mentor, now all up - but not in smoke. But the good news for our yodeler is more DUI defense work with ganja for recreational use in the Mile Hight State (of mind).
 

Shag:

What makes you think I support the filibuster?

Where Sandy and I disagree concerning the Senate is that I think a geographic allocation of seats in one chamber of Congress is a good idea to keep urban states from dominating rural states, while Sandy wants a proportional parliament.

FWIW, I would replace the filibuster with a rule mandating a certain length of debate for each bill.
 

The answer to our yodeler's question:

"What makes you think I support the filibuster?"

is how he "filibustered" for most of the eight years of Bush/Cheney in their support, including especially on WMDs.

Perhaps on the Senate filibuster, we may be in agreement with a speaking filibuster with time limits. If so, so be it. If no, then so be it as well.


 

It only takes a simple majority to change Senate rules.

The Democrat Senate majority simply decided they did not want to give up the power of the filibuster in case the voters returned them to the minority say in 2014 or 2016.

No real surprise.


Bart has lurched uncontrollably into the truth here.
 

I don't know about that. There are Democratic senators now who like the filibuster power since it gives them power, even when it blocks Democratic legislation. It isn't just about being in the minority. They were in the minority a few years back. They didn't use the filibuster that much to really check Republican power. The reforms here wouldn't have even ended it.
 

Joe: They were in the minority a few years back. They didn't use the filibuster that much to really check Republican power.

Clinton was their president even though he shrank government after 1994 and Bush was expanding government for the first time in a generation. There was little for the Senate Democrats to oppose.

If the voters lend the Senate and the White House back to the GOP and the Republicans attempt to even slow the growth of entitlements, the Democrats will use the filibuster in a heartbeat.
 

This comment has been removed by the author.
 

This is a real possibility. Kerry's ego-centric move to Sec. of State might mean a GOP pick up by Brown in Massachusets. More importantly, the Dems gun control talk and measures is likely to go very badly for them in contests such as North Carolina, Colorado, West Virginia and South Dakota. The party is going to be branded as anti-2nd Amendment, and in off-Presidential elections that is very bad.
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