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The (Slim) Case for Preserving the Filibuster

A number of progressive scribes have recently restarted the debate over banning, or phasing out, the Senate's oft-abused filibuster power. (Ezra Klein's argument for burying the filibuster is found here.)

I'm not about to defend the nauseating eagerness of Republicans to filibuster at a record-breaking pace during the past two years. Nor am I prepared to defend the hypocrisy of now-Minority Leader Mitch McConnell's (R-KY) insistence on 60 votes to pass even uncontroversial legislation -- with the support of his Democratic counterpart, Harry Reid (D-NV) -- when four years ago McConnell was ready to deploy the "nuclear option" to eliminate any filibuster threat to Bush judicial nominees with questionable qualifications.

The filibuster's checkered history as a weapon of pro-segregation southerners seeking to block civil rights bills is also utterly indefensible.

Despite the filibuster's frequent abused for undemocratic ends, I was initially eager to defend the need to keep it alive in some form. Reducing the number of votes needed to remove a block on legislation, from 60 to 55, is one good idea on the table. After researching the history of meritorious filibusters, however, I was amazed to see how few instances there are of a successful stalling of just-plain-bad legislation.

The Democratic campaign during 2003-05 to block grossly partisan Bush judicial nominees, such as mining industry lawyer William G. Myers, represents the most obvious argument in support of filibustering. Three more examples of worthy filibusters (or threats of such) follow after the jump. If I've omitted any compelling reasons to preserve the filibuster, let me know ...

- A filibuster by Sen. Chris Dodd (D-CT) in 2007 averted the hasty approval of legal amnesty for telecommunications companies that aided the Bush administration's warrantless wiretapping program.

- A threatened filibuster by six senators from both parties delayed renewal of the Patriot Act in 2005 and prompted some restrictions -- small, but impossible to achieve without the filibuster power -- on the sweeping governmental search powers envisioned by that infamous law.

- Wisconsin Sen. Robert LaFollette, an anti-corporate Republican often described as Sen. Russ Feingold's (D-WI) progenitor in progressivism, held up a public lands bill in 1919 to protest what he viewed as a government sell-off of environmental resources to coal and oil companies.


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a successful stalling

A point made even sharper by the ultimate fate of even the four bright shining examples you cite--most of the harm was only delayed (cf. Dodd's finger in the dike).

One might argue that a more widely cast net might pick up instances of harms averted or ameliorated by the negotiations that occured in a universe of discourse which included the (threat) possibility of a filibuster, but I would not mourn its demise, the more so as I believe the anonymous hold is actually a tactical possibility only because of the possibility of a filibuster.

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Without getting into the merits of the cases you presented, for every 3 or 4 (or 50) cases you can identify as support for a filibuster from a Democratic viewpoint, there are just as many that would be deemed "worthy" from a Republican viewpoint.

The overall question is whether more than a majority of elected officials should be required to change the laws of the land, and I think there should be. I also think the current threhold, 60%, is about right. 67% seems too high a hurdle and 55% seems like fudging 50%+1.

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Co-sign. The people can make the filibuster moot by voting in more dems in 2010, which is the way it should be dealt with. What happens in 10 years or so when there is a new party opposing the dems and the dems try to over-reach. The party will have the filibuster. What happens in 20 years and the dems are out of power and the new party tries to over-reach, you have the filibuster. Just because the dems are riding high right now doesn't mean that we should change all the rules to make it easier on the dems. That is very short sighted.

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to change the laws of the land

Bear in mind, that at present it is not merely enough to have the assent of the representatives of a majority of the populace (ie, your bill passes the house); you must also get the assent of a majority of the states casting a yea or nay vote;(states who cannot decide, will manifest one senator for, one senator against).

Having tied that anchor onto the majoritarian principle, why should we (potentially) further empower the tiny number of people who live the twenty-one least populous states, by allowing their 40+ senators a veto on legislation?

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According to Wikipedia, as of July 1, 2008, the estimated population of the 50 states, the District of Columbia, Puerto Rico, and the other insular areas of the United States was 305,986,357.

Of that total, the most populous 29 states have 88.62%; DC, P.R., and the other areas have 1.43%; thus the least populous 21 states have 9.95% of the population, and the power to filibuster legislation supported by the other 90.05%.

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Superb point, Neal. And as a resident of one of those 21 tiny obstructionist entities, may I say it is way past time to remove this last vestige of the slave power.

Because the overwhelming power given to small states in the Senate is, like the three-fifths clause, designed specifically to make sure the slave states could stop anything the non-slave (northern, progressive, liberal) states tried to do.

It's no coincidence that the most famous use of the filibuster was its deployment in the late 50s and early 60s to stop bills to give civil and voting rights to blacks.

If Democratic Senators cannot come up with a better way to stop bad legislation, then we need better Democratic Senators.

The filibuster is the last vestige of slave power. Get rid of it.

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The problem with the filibuster began when Senators no longer had to really filibuster. Originally to carry out a filibuster someone had to hold the floor and talk. Now all they have to do is declare a filibuster. holding the Senate floor for days really underlines the obstruction taking place.

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You beat me to it, Paul1950. When was the last time an obstructionist was made to take to the Senate floor and read from the DC phonebook for 24 or 48 hours straight? When the population at large (and not just the political junkies) realize how obstinate and unreasonable their position is as a result of the cable news channels and the broadcast news shows getting ahold of it, and that they are gumming up the government to block needed reform, then their electoral fate will be sealed in the next election cycle. Optics can be a powerful thing.

Their feet need to be held to the fire. If you let McConnell just threaten to filibuster w/o making him and his cronies actually do so, they'll just be emboldened and do it every time piece of legislation. Their bluff needs to be called. My understanding growing up and studying such things in school was that the filibuster was supposed to be reserved for extraordinary circumstances, not employed on every piece of garden variety legislation. Let them make complete asses of themselves motivated by purely political purposes while the country runs off the rails. That sideshow won't last very long.

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Oh Ceiling Cat, give me patience. At best, the "can the filibuster" talk smacks of the same dangerous combination of hubris, impatience and legitimate grievance that led to FDR's disasterous court packing scheme.

Beyond that, the "its never really stopped that much bad stuff" crowd is discounting the atrocities that never made it to the Senate floor in the first place because of the certainty of a filibuster. Think back to 2004. Go take a look at some of the mouth-foaming insanity that was oozing out of DeLay's sty on a daily basis that never even came up for a vote for in the Senate because the certainty of a filibuster would have made it a waste of limited time and then tell me the filibuster doesn't have its uses. At the very least, the mere existance of the filibuster causes the Senate majority to pick its battles.

Beyond what's provable by reference to what DeLay's House actually passed, think of the kind of full blown crazy DeLay, Frist and Cheney could have enacted if they'd really gotten on an unimpeded roll. Imagine the cable asshats of 2004-05, breathlessly and uncritically reporting their brilliant serial successes in enacting their daring agenda to transform America, each new success in enacting counter-factual derangement into law creating momentum for the next in their step-by-step reduction of the nation into just another putinized kleptocratic one-party authoritarian craphole.

Am I the only person whose memory stretches back more than a month? Does no one still remember the dark desparate years of 2002-2006 when the nation seemed to be descending into thuggish theocratic madness and so many of us were genuinely wondering whether the Republic was doomed? Am I the only person who remembers earnestly wondering whether emigration was going to become the only remaining choice for a sane human being in this country?

Have we so soon forgotten the days when things were so crazy that Buscheney having given Haliburton a no-bid to draw up plans for "emergency internment camps"--purportedly for a hypothetical sudden influx of illegal immigrants but obviously adaptable to the internment of anyone the Republicans might want interned in an "emergency"--legitimately gave rise to concern for the future?

We are not going to be in the majority forever. Even if the Republican Party collapses, something new, which will envelope much that was old, will take its place and and we good liberals may once again may be thanking our stars we have at least one stick left to impede the march of folly.

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Or alternately, we good liberals could be glad we have one stick left to impede the new Progressive Party's march of folly.

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I shudder to think of what kind of damage the newts and delays of the country could have caused absent the filibuster. Or the further nazification of the country under the king. It really is amazing how short sighted people are. I do not want the senate run like the house. It would be a disaster. Like washington said the senate is like the saucer that the boiling tea of the house is put in to cool, or something like that. No, the filibuster is totally necessary, as are the other arcane rules of the senate. Figure out a way around them and get compromise, like was done on the stimulus. If the people don't like the compromises, in two years they can elect more senators to override the filibuster. Simple solution.

Incidentally, what does the reference to ceiling cat mean? I don't get that.

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If you're not already ensnared in the timewasting insanity that is lolcats, its probably for the best.

But it really is kind of the quintessential case study Internet subculture thing. Its like one day, you're living your life in complete blissful ignorance of it and, the next, boom, its like "damn, these pictures I get in the emmail from time to time turn out to be part of this whole big thing and I knew nothing about it till now? What's up with that"

Plus, I'm obviously a sucker for cat humor.

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You're evil.

I didn't know about lolcats.

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What TCFKANCS said.

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Exactly. Thanks for saving me some typing - now I can resume my regularly scheduled lolcatting.

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Thanks for this moment of sanity.

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"- A threatened filibuster by six senators from both parties delayed renewal of the Patriot Act in 2005"

Aren't they all "threats"? As I understand it, the minority doesn't actually have to filibuster, but simply threaten to. I have read other articles that try to sell the theory that a senator could conceivably vote for cloture but not vote for the bill itself... yadda yadda yadda, that is complete crap with the current system of letting 40% decide they will say the word filibuster & that equals "Filibuster". There is a big difference between "saying" you will hold out without breaks for as long as it takes reciting the dictionary if necessary, and actually doing it!

There SHOULD be a filibuster in a society that DOES NOT believe in straight majority rule. And this country DOES NOT BELIEVE in straight majority rule. We believe in protecting the rights of minorities and that belief is one of many things that allowed us to elect our first legitimate president in my lifetime (33 yrs).

That does not mean that the minority to should be allowed to hold the rest of us hostage. If the filibuster remains as easy to implement as it is now, then it will continue to be abused; as it is now. 60% is perfect, but only if the 40% (or 1%) obstructionists are having to piss there pants to exert there will.

And, for those of you with a short memory; obstructionist is not necessarily a bad thing.

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i don't think the filibuster needs to go. what's happened over recent years is the willingness to use it for comparatively trivial disagreements. it's become a tool of obstruction in recent years, and that's not what it was meant for.

the easiest solution is to call their bluff every time republicans threaten to filibuster. what needs to happen is that they need to pay a price every time they try it...but now, even the mere threat of a filibuster is enough to get weak kneed dems to cave, so in fact they never actually have to stall good legislation, they just have to threaten to.

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Paul1950 has the solution to the Filibuster problem--make it a real filibuster.

Remember, the filibuster is not a result of history--it's the result of the lack of history. When the Senate first convened in 1789, it did not adopt a rule as to how to cut off debate, and the first Cloture Rule was not adopted until the early 20th Century. It was not intended to require a super-majority for passage even of controversial matters, but to allow for actual debate and deliberation.

This was essentially destroyed in the mid-1970's when the Senate adopted the two track system, to allow legislation that was not being filibustered to go forward while the filibustered legislation stopped. This was actually the doing of the majority (then-Senate Majority Leader Mike Mansfield (D-MI)). If the majority were to force the opposition to talk a bill to death while other, important legislation, was waiting, the political pressure would start to build up. The practical pressure would build up too--middle of the night quorum calls, losing out on weekend trips home, etc.

Past filibusters required real political and personal committment. Modern filibusters just come with an unexplained note at the bottom of the CNN Ticker--"Obama seeking necessary 60 votes to pass stimulus measure."

An end to the two track system would extract a real price for filibusters, bringing an end to the ridiculous ones.

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Michael Joseph Mansfield (March 16, 1903–October 5, 2001) was a Democratic United States Senator (Class 1) from Montana, 1953 – 1977, and the longest-serving Majority Leader of the United States Senate, serving from 1961 to 1977.

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And also, for the million and oneth time, it wasn't just the filibuster that was a problem with the stimulus bill. Senate rules adopted in the 90s require 60 votes for all bills that increase the deficit. It was not just about getting some Republicans to vote for cloture and then letting them cover their asses by voting against the bill. We also had to get at least two of their votes (plus the votes of all the quasi-Dem grandstanding assholes like Ben Nelson) on the record to pass the thing.

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One of this country's founding principles was to fervently protect the rights of the minority. Even if we disagree with the minority, we must always respect their right to their opinion (no matter how loony it may be) and their right to be represented. Still America here, folks. Even after the hellish last 8 years believe it or not.

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Do we protect the rights of minorities by requiring that the President be elected by 60% of the electoral college? Surely we should do so, since we respect their opinions. And, shouldn't we require all votes in Congress be by 60% majorities, in order to protect the rights of minorities? But, why 60% and not 70% or 80%? Is it only the 41% minority whose rights must be respected?

Sorry, there really is zero logic in requiring super majorities for votes in Congress. We protect the rights of minorities by allowing them the exact same voting rights that we in the majority have.

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Trashing the filibuster is so damned Republican! As someone said above, if you don't like the odds, then vote more Democrats into office.

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I don't think that the political landscape at this point in time or in the near-term future is particularly suitable for abolishing the filibuster, whatever the merits of that change. Also, don't be surprised to see a lot of Democrats getting cold feet about reform when such cold feet are 'called for' in terms of elite agenda.

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I am completely unmoved by the argument that we can't eliminate the filibuster now because someday the Republicans will be back in charge. This is so typical of American liberals. We can't have a real left-wing third party because it might help the Republicans. We can't try to move the Democrats to the left because it might not work. Apparently we can't do anything that does not leave the power structure exactly as it is.

We can't act from fear all the time. Political victory requires risks. Yes, eliminating the filibuster might help the Republicans sometime. But it will also help the Democrats -- right now. Without the filibuster, the Democrats could make transformative changes. Without it, they will always be constrained by the Blue Dogs or the Ben Nelsons and will have to deal with morons like Susan Collins.

If the idea of being able to ram through progressive legislation with 51 votes doesn't appeal to you, then what about the principle at stake? What principle of democracy says that the minority dictates terms to the majority? It's completely ridiculous. We should get rid of the filibuster now, and get rid of the Senate as soon as possible. The rights of minorities are protected by the courts. All the Senate does is let a tiny percentage of the country make things worse for everybody. The filibuster just exacerbates that problem.

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Amen, ditto and thank you, Skybolt. Extremely good point about how much the crutch of the filibuster may have contributed to Democratic cowardice and inertia.

Good question for Democratic candidates for Senate: How will you pass good progressive legislation and stop bad wingnut legislation without the filibuster?

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KY & Skybolt -

Your superficial understanding of the structures of governement are astounding. Utterly astounding.

Essentially, what you're calling for is the dismantling of the parts of the government that slow you down from your political objectives. Kinda like, hmmm... Hugo Chavez, or um, Vladamir Putin, or... oh, I've got it: Bush/Cheney/Rove!

Y'know, there's no way I can possibly give you the thorough history lesson you clearly need in this kind of format. But let's just start with one thought: one of the greatest fears of the founders of our nation was not tyranny of the minority over the majority, but tyranny of the majority over the minority. This is why all kinds of balances were put in place to slow the majority down and to make sure the minority has a voice at all times. Some examples of this are having an equal number of senators from each state (so small states remain relevant/have a voice), and, yes, the filibuster.

The real issue here isn't the fillibuster, it's what "tonnyb" (below) is talking about. It's the D's (Ried's?) unwillingness to force the R's to actually perform a true fillibuster. The R's threaten a fillibuster, and the D's cave completely. If they'd just do a little political jujitsu, and allowed the R's to fillibuster for real, the whole thing would unravel. That the D's allow the R's to push them around like this - by choice! - is what is completely ridiculous.

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Wow, it sure doesn't take much to astonish or astound you. I mean, talk about hyperbole. I think that a small minority of people should not be able to set policy for the entire country, so I'm like a dictator. Seriously? You don't want to win? You hold certain political beliefs, but would rather not see them become laws? You'd rather the other side prevent you and the majority of Americans from getting what they voted for? If so, why are you wasting your time? If you want to lose, don't play!

For two hundred years, people have been working to expand the reach of democracy in this country despite the limits put on it by the sainted founders. The fact is that the system the founders built protects economic power above all else -- we've expanded political power over the last two hundred years in spite of the system they designed, but economic power is still quite concentrated in the hands of a tiny elite. The filibuster helps maintain this state of affairs.

In any case, stating what you think the founders had in mind is not an argument. You've done little to actually make a case for the filibuster. As it stands now the filibuster is part of our political sclerosis. It is allowing a minority to block positive change. That it could also be used to block negative change is really beside the point. You would give up the ability to make needed changes out of fear that the Republicans might run the Senate again? Are they any liberals who are unwilling to settle for what the Republicans will let them have?

We have a bill of rights and state and federal courts to protect the rights of minorities. The Senate is, and was intended to be, an anti-democratic roadblock. That's all. It's not there to protect minorities; it's there to protect men like the founders from everyone else. There's an oligarchic institution rotting at the middle of our democracy, preventing the people's will from being carried out, and that's ok with you?

And, finally: the small states? Please. Someone should have more power because they live in South Dakota? As a New Yorker, I'm tired of being an unequal citizen in this country. There are more New Yorkers than Kansans; therefore, New Yorkers should be more powerful as a group in the federal government.

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I'm not against boldness nor am I for incrementalism when boldness is called for, but cramming massive change down people's throats before you've gotten them ready for it is how you create backlashes that wipe out everything you wanted to accomplish and then move the other way for decades.

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How about starting out with eliminating the non filibuster filibuster. Lets have these guys up 24 hours night and day defending the indefensible. That might move things in the right direction.

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"The filibuster's checkered history as a weapon of pro-segregation southerners seeking to block civil rights bills is also utterly indefensible."
Mastered by KKK leader Robert Byrd D-WV

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The number one reason there is reluctance on both sides of the aisle to change the filibuster rule is POWER. And not the power of the minority caucus; the power of ONE.

The 60 vote supermajority, combined with no actual requirement to perform endless debate, makes each "individual" Senator that much more powerful. This isn't about caucuses and agendas, it's about the power of any individual Senator to delay or modify legislation.
Each of them likes that power and will be very reluctant to give it up and become just another member of a caucus.

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Hateful and counterproductive as it may seem, the filibuster does serve a valuable purpose. It is a check on the exercise and abuse of power by a majority party, be it Rep or Dem, to force moderation in policy rather than allow whatever majority exists to run wild in creating law and policy. Can you imagine what W and Dick, along with their senate collaborators, would have done, or tried to do, if they hadn't faced the reality of filibuster from the Dems?

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