Balkinization  

Monday, January 09, 2017

Why do we still have the filibuster?

Sandy Levinson

The Senate has now been in session a week, and the filibuster remains untouched.  Why?  One possibility is that Mitch McConnell, the Senate Majority Leader, is a man of integrity who actually believes in the importance of safeguarding minority rights. I reject the plausibility of any such explanation:  There is no evidence that McConnell has any integrity at all;  he is a Republican apparatchnik whose sole and exclusive concern is the success of the Republican Party.  He correctly believed that it would not help the Republican Party to be seen as collaborating with President Obama, so he devoted the last eight years to making sure that Obama would be able to claim no accomplishments that required any cooperation from the Republican Party.  He guessed wrong on the 2012 election, but we ought to recognize that it was in fact a close call.  And it appears that the Republicans might have guessed right on what they could do, propagandistically, with regard to discarding Obamacare and riding it to victory in 2016.

And McConnell evidenced his full-scale partisanship by refusing to give Merrick Garland even the courtesy of a hearing.  (Does anyone seriously believe, incidentally, that he would have allowed Hillary Clinton, had she won without carrying the Senate, to name anyone to the Supreme Court? I NOTE FOR THE RECOFD THAT NONE OF THE DISCUSSANTS HAS SUGGESTED THAT MCDONNELL WOULD IN FACT HAVE DONE SO.  INSTEAD, ONE CAN BE CONFIDENT HE WOULD HAVE SUBMITTED TO TED CRUZ AND OTHER MAD-DOG REPUBLICANS WHO WOULD HAVE ARGUED THAT CLINTON WAS AN ILLEGITIMATE PRESIDENT AND DID NOT EARN THE RIGHT TO NAME ANYONE TO THE SUPREME COURT.)
Unlike some, I don't think that he violated the Constitution in doing so, not do I think it would violate the Constitution to leave the Scalia seat vacant for four more years.  I strongly hope that the Democrats filibuster anyone nominated by Trump and, at the least, force the Republicans to eliminate the filibuster for the Supreme Court.  If one wants to be generous to McConnell, one might concede that he genuinely believes that the country would be better off with a conservative Supreme Court, so it's not the same kind of partisanship as the abject refusal to cooperate with a sitting Democratic President for fear that he will profit electorally from any success.

So return to the question, why do we still have the filibuster?  Once one rejects any "principled" behavior by McConnell, as I think we must, then there are two other possibilities.  The first is that, as Washington told Hamilton, "you don't have the votes." I.e., there were at least three Republicans who, for whatever reason, were unwilling to do in the filibuster, even if, by definition, it will make it more difficult for the Republicans to pass their alleged agenda for the nation.  The presupposes, incidentally, that every Democrat would vote to retain the filibuster, so that there must be at least 51 Republicans to outvote the Democrats plus Joe Biden, who remains President of the Senate until January 20.  Perhaps that is the best explanation.  If McConnell were confident he had the votes, then why not use them?

But let me suggest another one.  McConnell doesn't want to eliminate the filibuster precisely because it would force the Republican Party to take full responsibility for governing.  He realizes that it would be insane, for example, simply to repeal Obamacare without a genuine replacement, which the Republicans simply don't have.  So it is far better to be able to blame recalcitrant Democrats for defeats of the Republican program (and allow unscrupulous Republicans to vote for idiotic legislation secure in the belief that it will not in fact get through the Senate) than to take genuine responsibility for the legislative program.  If one adopts this perspective, which I obviously think has something to be said for it, then it is the Democrats who should in effect be criticized for their insistence on maintaining the filibuster.  They are helping to keep providing the rope by which the GOP hopes to hang Democrats in the 2018 mid-terms and then the 2020 general election.  And, of course, if the filibuster is maintained, and if the Democrats win in 2020, as one might well predict they will, then it would in fact be impossible for the Democrats to succeed in passing their own programs, even assuming a miracle recapture of both the House and the Senate, given Republican obstructionism in the Senate.

To be sure, an added amount of truly dreadful legislation would be passed in the absence of the filibuster, and the Republicans could pack the Supreme Courtt (as they can do with the "inferior" federal judiciary, given the absence of a filibuster there) should anything happen to Ginsburg, Breyer, or Kennedy.  No doubt most Democrats think it important to be able to block the worst GOP excesses.  I join in that hope, but what I really want is for some honorable Republicans--and I continue to believe that there are some such in the Senate--to be forced to join with Democrats in saying no to the craziness of the Trump-Ryan Administration.  If there are no longer any honorable Republicans, then we need to think about even more serious responses, including secession.

In any event, as Heather Gerken so well put it, we are in the eye of a hurricane.  The US is in a struggle for survival as a nation worth cherishing, and we must think and behave accordingly.  Democrats must be far more calculating than is our/their wont.  The refusal of McConnell to call for eliminating the filibuster is in fact a poisoned chalice and should be recognized as such.  The Democratic Party should become a full-scale Party of Opposition (taking its lessons from McConnell over the past eight years) and doing whatever it can to make it obvious to one and all, especially the pathetically deluded Trumpistas who believe that he or the GOP really care one whit about the fate of the working class, that the GOP is in control and should be assessed on what it does with its power.

Perhaps I am wrong in my analysis.  But I will be intrigued by the reasons that any discussants give for the Republican failure to eliminate the filibuster.

[UPDATE:  ANY REMAINING ILLUSIONS ABOUT THE INTEGRITY OF MITCH MCDONNELL SHOULD BE DISPELLED BY HIS INSISTENCE THAT THE SENATE RUSH TO CONFIRM ALL OF TRUMP'S NOMINEES TO THE CABINET EVEN IN THE ABSENCE OF TRADITIONAL INFORMATION ABOUT POTENTIAL CONFLICTS OF INTEREST, ETC.  AS THE TIMES HAS NOTED, EVERY PRESIDENT SINCE GEORGE H. W. BUSH HAS HAD AT LEAST ONE NOMINEE GO DOWN BECAUSE OF INFORMATION DISCOVERED IN THE RUN-UP TO CONFIRMATION.  MCCONNELL IN 2009 INSISTED ON SCRUPULOUS ADHERENCE TO THE RULES.  NOW, PERHAPS HAVING BEEN BOUGHT OFF BY THE NOMINATION OF HIS WIFE TO BE SECRETARY OF TRANSPORTATION, THOUGH ONE SUSPECTS HE WOULD BE ADHERING TO THE REPUBLICAN VERSIN OF THE FUHRER PRINZIP EVEN IF HE DIDN'T HAVE THE FAMILIAL INCENTIVE TO DO SO.  IN ANY EVENT, I FAIL TO UNDERSTAND WHY ANY DISPASSIONATE ANALYST WOULD RESPECT HIM AS A PUBLIC SERVANT.]




Comments:

Reid had already announced that, if Hillary had been elected, he would eliminate the filibuster for Supreme court nominations to fill the seat. Democrats had already eliminated it for lower appointments, so this threat has to be taken seriously.

Under these circumstances it is pointless for Republicans to preserve the filibuster for their own use in the minority. The moment they need it, it will be abolished. We all know that: The party that attempted to turn the electoral college using death threats will not blink at simply eliminating the filibuster.

And yet, it's not yet gone. The simplest explanation is that there are at least 2, possibly 3, Republican Senators who have already privately told McConnell that they would defect in the event of an effort to end the filibuster. I can even name two of them for you: McCain and Graham; Both have a history of aiding the Democrats when the chips are down, both are violently opposed to key and popular aspects of Trump's agenda. Preserving the filibuster is the only hope they have of preventing it from being effected, because it will certainly be able to muster 50 votes, even with them voting against it, because it IS a popular agenda, and many of the Democrat Senators are vulnerable in 2 years, and from states where Trump won handily.

But, so long as the filibuster remains, they can expect Trump's agenda to be substantially obstructed. Often without having to get their own fingerprints on the obstruction, which is the way they like it. Nor will either of these two cave to public pressure; McCain is old enough to retire, and Lindsey Graham is widely hated in South Carolina, and must anticipate that, if Trump is a success, he will lose the primary in 2020.

It will be extremely difficult for McConnell to round up a Democratic defector, as this will be a party loyalty vote. Two points at which you can expect the attempt to abolish the filibuster to occur.

The first is right after Jan 20th. At that point, Pence will be available to break a tie, and if there are only 2 Republican defectors, McConnell will be free to proceed.

The second is after Democrats have been publicly abusing the filibuster, and many Democratic Senators face intense pressure from their home states to defect.

And you WILL abuse the filibuster; You've gotten yourselves into the trap of thinking legitimacy derives from agreeing with you, rather than winning elections, and can not bring yourselves to admit that, for the next two years, the Republicans are entitled to run the government. The party that threatened electors with death in an attempt to overturn the election, and which is torturing mentally disabled people on Facebook, won't blink at mindlessly filibustering popular measures.

You can't do otherwise. To do otherwise would be to concede that the Republicans are actually entitled to do things you don't like, and you don't really believe that.
 

I had this conversation with a top Republican Senate staffer shortly after the election. He said McConnell plays the long game, unlike Reid, and would not give in to any short term pressure to eliminate the filibuster.

Preserving the filibuster enhances McConnell's power. It gives him more options to kill or reshape things from the administration or the House that he doesn't like. It gives him a way to blame Democrats for things he doesn't want to do or to share blame for things that are unpopular. It gives him something to hold over Schumer's head if minority obstructionism goes too far. It wins him points with Senate institutionalists. It gives him a way to favorably contrast his leadership with his predecessor. It will make it more difficult for Senate Democrats to eliminate it if and when they retake the Senate.

It is also, of course, illegal to eliminate the filibuster (using the "nuclear option"). http://www.pointoforder.com/2016/11/28/the-filibuster-the-nuclear-option-and-the-rule-of-law/

We may assume that McConnell, being a bad man, doesn't care about that. Unfortunately, we have to make the same assumption about most senators, law professors, and others who should know better.

We should be more worried about that.
 

I continue to believe that there are some [honorable Republicans] in the Senate

This is delusional, but I do agree with your view that the Dems need to understand how an Opposition party actually works. The Rs showed them the way -- "my offer is nothing". I'm pretty angry that they've shown no signs of recognizing this, nor of taking more immediate steps such as a total boycott of the inauguration, the failure to declare Trump's presidency as illegitimate ab initio, etc.

Pace mls, Trump has no agenda. Steve Bannon does, and some parts of his agenda might well be popular. However, Bannon's agenda and Paul Ryan's don't overlap entirely. Ryan's agenda is wildly unpopular. Voters are likely to be furious with what Paul Ryan wants to do, unless Trump can sell that agenda by scapegoating people of color and other minorities (which Trump is quite good at). Congressional Rs therefore need Trump, but they want him only on their own terms. That's where the fault lines are and where the Dems need to cut.
 

To clarify, when I said Trump has no agenda I meant "no public policy agenda". He does have the agenda of looting as much money as he can. Thus far it seems that that's the trade-off Paul Ryan is willing to make in return for acquiescence to his Randian agenda.
 

Why would they touch the filibuster?

Until the Democrats actually show some actual ability to cause trouble, it is not like Republicans have much of a reason to be concerned. And, they need a majority to end it at least. Mark Field's "delusional" comment might be a tad unfair, but even it it's not, there are a few Republicans that at least are wary about just letting Trump have his Republican enablers to have simple majority rule. Democrats would obviously be wary to unilaterally disarm.

As to the argument that the end of the filibuster would give Republicans no deniability and full responsibility for governing is scary, there is probably something to that. This is so especially given their rhetoric repeatedly promotes unpopular things. But, I'm more inclined to think obstructionists are as or more likely to be the reason. Republicans figure they won't have power forever. Minority blockages worked pretty well for them. And, there are various Republican senators who want to obstruct the majority even now in various cases. So, the filibuster is likely to be retained.
 

Sandy, I have only skimmed your post and the comments and will get back to them later. I've missed your posts at this Blog and pick up on other writings by you. I'm glad you're back and trust you are in good health at a time when you are needed. I'll have more to say later as I go through my daily geezer rituals. But just a short culinary note on the filibuster.

Years ago near the State House on Boston's Beacon Hill there was a restaurant that became a lunch destination for political types - and tourists - called "FILL-A-BUSTER" with affordable prices and ample portions. While the filibuster at the State House did not seem to be that significant back then, or now, this venue was a reminder of two important things in life: Bon Appetit! There's a lot to chew on.
 

Regarding what motivates McConnell, I wonder if and when there was "pillow talk" (surely not a pillow fight?) about his spouse being considered for a Trump cabinet position, whether before or after Nov. 8th. During the campaign McConnell was careful not to alienate Trump to the same extent as other Rs such as Romney. So there is a possibility of McConnell having a familial conflict of interest. Perhaps President-elect Trump has not weighed in with McConnell on the matter of the filibuster. Perhaps mls' "Deep Throat" R Senate staffer has expressed views on this.
 

Sandy:

Where did the idea come from that the Senate is supposed to defer to presidential court nominations unless they are incompetent, criminal or insufficiently progressive (Bork)? Choosing judges is functionally no different than passing a spending bill. Like the House initiates spending bills, the president nominates judges. In both cases, however, the Senate has to agree and is a coequal partner in the choices being made. Whether the Senate's motivation is partisan, ideological or both is irrelevant.

We have the filibuster because the establishment of both parties generally desire the power sharing arrangement of a functional minority veto. The political class would rather retain some degree of power nearly all the time and get little done, than to occasionally gain total power to enact their preferred policies.

2017 will be a perfect example of this principle at work. The voters obviously do not cherish your preferred progressive state, firing over 1,000 Democrats who imposed it on them and reducing them to a 1928-level rump party with little purchase outside of large blue cities. The only remaining tool the Democrats have to stop the voters is the filibuster.

Unless you have retired to a cave without access to the outside world to gnash your teeth over the electoral college victory of Donald Trump, you would know the GOP Congress is hardly reticent about governing. Trump is reportedly preparing a mass reversal of Obama regulations imposed outside of the standard rule making process. The House has the Obamacare repeal, the mass reversal of regulations imposed since last July and corporate tax reform teed up for quick passage. The Senate has already enacted the budget bill which serves as the vehicle for the Obamacare repeal and the other reforms are not subject to the filibuster. The GOP is also discussing individual tax reform and some sort of infrastructure bill this year.

BTW, there is nothing insane about killing off Obamacare without a replacement because the status quo ante was far superior to the current government misdirected health insurance system. In any case, the GOP has offered a variety of rather good replacement reforms for years now. (My favorite is to make insurance portable across state lines, effectively reversing the vast majority of state insurance mandates and lowering insurance premiums) Some of the GOP ideas are likely to pass in exchange for keeping the parts of Obamacare which poll well.
 

It' been hinted that Senate Majority Leader McConnell has been in contact with Trump's team with respect to Trump's To Russia with Love theme and his nominees for his Kremlin-Kleptocracy-Kabinet. First off McConnell rejected the proposal by certain Republican Senators for a special committee to investigate hearings on Russia's attempts to hijack the presidency for Trump. Second, McConnell insists that confirmation hearings will begin on schedule even though nominees have failed to provide complete information to OGE as required by law, despite the fact that national security issues are at stake with many of the nominees, with McConnell telling the Democrats to "Grow up" even if Democrats have more reason to complain than did McConnell when he was not a grown up in 2009 with Pres. Obama's nominees.

So perhaps McConnell is between the proverbial rock and the hard place on the filibuster with the incoming Trump Administration. President-elect Trump's tweets may have had impacts on McConnell and Speaker Ryan. And "pillow talk" may be keeping McConnell awake nights.
 

It seems as if Brettbart (aka the "unBreit") are Konrades in arms for the Kwik-Kabinet-Konfirmations without complete vetting as Trump's nominees are surely qualified because they can afford Vettes. Brettbart might dig into that pile of nominees looking for a populist reflecting the Rust Belt/Appalachia Trump base.
 

Shag alluded to a Bond film, which is produced by Albert Broccoli.

Do we have a new "broccoli horrible" here besides the PPACA mandate one?
 

"The voters obviously do not cherish your preferred progressive state, firing over 1,000 Democrats who imposed it on them and reducing them to a 1928-level rump party"

Let's consider that this happened in the same period in which 'the rump party' has won more popular votes in 6 of the last 7 presidential elections. That statistic alone is a testament to how fundamentally broken via built in undemocratic features (electoral college, gerrymandering, the Senate, etc). our system is.

"with little purchase outside of large blue cities"

Which, just incidentally, happens to be where a majority of We the People, who in theory run this country, live. Again, the system is fundamentally broken.
 

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Mr. W:

Obama, not Bill Clinton, reduced the Democrats to an urban rump party.

Blue cities do not provide a majority of the electorate. A majority of the national vote elected the the GOP Congress and GOP state governments.

Earning a supermajority of votes in CA, NY and MA with a libertarian drawing nearly 4 million normally GOP votes will get you plurality (not majority) bragging rights and a GOP government.

Our system is working as designed to keep a handful of large cities and states from controlling the national government.
 

It is also, of course, illegal to eliminate the filibuster (using the "nuclear option").

So, you've given up on being a living constitutionalist, and become a textualist/originalist, instead? Because you must understand that the technique Reid used in the 'nuclear option' was just living constitutionalism applied to the Senate rules: Interpreting the law you don't change the text of to mean something different, (And contrary to what it says.) despite the fact that the text is unaltered. It's how the interstate commerce clause became the commerce clause, it's how the necessary and proper clause, (A limitation on Congressional power!) became the "elastic" clause. It is, virtually uniformly, asserted by liberals to be a legitimate approach to laws you lack the numbers to change.

There was method to Reid's madness, of course. He could have straightforwardly abolished the filibuster by declaring that, in as much as the Constitution grants each chamber the power to make its own rules, and doesn't specify a supermajority for that task, the attempt to make rules that require a supermajority to change is futile. That the Senate is at any time entitled to change its rules by majority vote. (The principled, and I think correct, position.)

But to do so would clearly so empower Republicans to do the same, and explicitly so.

Instead he used a procedure Republicans generally abhor, bad faith interpretation. And so sought to craft a parliamentary weapon only Democrats could, or anyway would, use, because Republicans would find it repugnant. So far he's been successful in this ploy, but it does rest on the assumption Democrats are more unprincipled than Republicans.

A safe assumption, generally, but it only gets you so far.
 

I'm a living constitutionalist? When did this happen?

I doubt there was much method to Reid's madness. At the end of the day, he wanted to change the rules he wanted to change, and he realized the rest of the Senate didn't care enough about the legality to make it worth coming up with a justification. This is beyond living constitutionalism, though the analogy is there (see my post When Harry Met Liz).
 

هل تبحث عن شركة متخصصة فى مكافحة الحشرات نحن نقدم لكم افضل شركة مكافحة حشرات فى الدمام كما انه تقدم خدمة متميزة ايضا وهى تنظيف المنازل والمجالس والفلل والقصور وسبب تقديم هذه الخدم انه تهتم بالاناقة والمنظر الخلاب والصحة العامة خدمات شركتنا كاتالى شركة مكافحة حشرات بالدمام
شركة تنظيف بالدمام
شركة تنظيف مجالس بالدمام

 

Regarding the presidential vote in Trump's home town, Trump is probably screening Neil Simon's "Brighton Beach Memoirs" as solace. Of course Brighton Beach has changed since Simon's days and did not have its current financial prowess.
 

It's how the interstate commerce clause became the commerce clause

The word "interstate" does not appear in that clause. It's "commerce ... among the several states".

it's how the necessary and proper clause, (A limitation on Congressional power!) became the "elastic" clause.

The N&P clause is listed as one of the powers of Congress.
 

Mark:

The N&P Clause is an enabling provision which grants Congress the power to legislate to exercise the preceding enumerated powers. The provision does not create a general police power.
 

"I doubt there was much method to Reid's madness."

I'm not sure what sort of "method" is required here.

As to "legality" or something, the Constitution says:

"Each House may determine the rules of its proceeding"

Like in other cases, we can formulate special penumbras and emanations (a concept I'm fine with when applied correctly), but don't see the problem exactly with them deciding to do so as they did. I realize, from past discussions, mls formulated such "rules," but note too that others (Mark Field included, probably) have argued that the filibuster itself seems to violate constitutional norms. The Constitution sets up certain things for supermajority vote.

I don't think it is unconstitutional or anything, but if it is overused, it is horrible policy with results that do cause constitutional problems. The "living constitutionalism" of all of this is somewhat unclear (fwiw -- I think LC is the right way to interpret the Constitution & think it is how it "originally" was set up to be applied] though some things Republicans are doing now violate longheld norms and the filibuster itself developed over time.

As to "Reid," one person doesn't change the rules of the Senate. Some Democrats were wary, but -- to remind -- the Republicans were playing hardball, including blocking people simply to change the law [making it hard in at least one key case to carry out the law in question], because they didn't like the number of slots in a key court, for various gratutious reasons that repeatedly led to supermajorities actually confirming the person etc.

The ending of the filibuster for executive appointments below Supreme Court resulted in judges and others being confirmed that helped and will continue to help the Democrats and the execution of the law in general. It is still present for the Supreme Court and most importantly legislation. So, the Democrats (for now) still have a weapon to use.

Yes, the Republicans now get to have an easier time confirming lower court judges and other appointees. But, in the Bush Administration, the filibuster was of rather limited long term value to the Democrats in that fashion. Plus, on principle, it has issues. Finally, if the Dems actually played hardball enough for it to really hurt, I think the Republicans very well might have ended it.
 

A "long game" here would also be applied differently by each party in certain respects. The long game of Republicans cared a lot less about actual governing than the Democrats. So, the Democrats passed PPACA. The Republicans now want to "repeal and replace" it. This is unsavory in my view but the net result is likely to still be more than was there in the first place.

The Democrats were lucky to have for a limited amount of time sixty senators there. But, if they had 59, the filibuster could have resulted in a lot less, much easier to simply remove. The "long game" there would be to govern when they had the power & not allow excessive bottlenecks to block them since they fear future Republican Congresses will govern.

A minority party like the Republicans with a more anti-government (in respect to certain things at least) would have a different "long game." Again, the Democrats are not totally disarmed even now, including able to filibuster legislation and hoping in a few cases at least to pick up a few Republican senators (who, e.g., already are worried about simply repealing ACA).
 

note too that others (Mark Field included, probably) have argued that the filibuster itself seems to violate constitutional norms.

Yes, I have argued that the filibuster violates a fundamental principle of republics, namely majority rule. I think I also suggested that the Constitution implicitly suggests that majority rule will apply in all cases other than those specifically described (inclusio unius, exclusio alterius).

That said, the Senate itself violates the principle of majority rule just in its construction, so I'm less concerned about the filibuster than I might be if the Senate were representative. If I haven't suggested it before, one way to address both problems might be for the Senate to pass a rule requiring filibusters to have support from Senators representing 50% of the nation's population (each Senator counting for half the population of his or her state). Whether that's Constitutional is an interesting question, but I don't see how anyone could enforce a determination that it's not.
 

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