Filibuster 2.0: How 41 Senators Control The Country Without Actually Filibustering

The House is a different animal entirely. While there is no filibuster and a simple majority is enough, the Democrats' majority really isn't that large when you factor in the Blue Dogs, who have to go against the party line on many issues to keep their seats. Most of those Blue Dogs represent conservative constituencies and they'll be booted out of office by a Republican firebrand in their next election if they vote like a party-line Democrat.

Is that Robert Byrd in that picture?

And this is the system that men of supposed intelligence have arrived at?

The rules should be a MAJORITY DECIDES ALL VOTES (save those which specifically call for more. Constitutional Amendments, etc.).

Under this inane system, one of the very things that is supposed to result in CONSEQUENCES - the misuse of POWER - is nullified artificially. If the majority party does not satisfy the electorate, they can CHANGE that majority party.

Under this inane system, NEITHER ruling group or groups can truly be held accountable, since majority rule is not the guiding hand.

I also made this suggestion a while back. I think in this one case, it might make sense to allow the filibuster to go forward and then make a big deal about it. I'm a little pessimistic about the American people lately, but there's one thing in our character that I think may come into play here- our sense of fairness. A filibuster SHOULD be a shameful thing, why not allow it to go forward and then point that out every waking moment while it lasts. Hire a bunch of smart, funny staffers to do a running "MST3k" of the floor feed, and watch it go viral. I think the hue and cry against the this parliamentary trick would, if the right spotlight were placed on it, grow to feverish intensity- whether or not folks want the bill passed.

Progressives, for the love of God, please stop obsessing over the rules! Hoist them by their own petard!

You need to sway the public, not argue like lawyers among yourselves. Most of the public doesn't even know that Republicans are abusing the filibuster at unprecedented levels.

That's your job to tell them, Harry Reid! And all the rest!

Flail the Republicans mercilessly with their obstructionism to solutions for the American people. They won't abide by election results!

Stop playing parlor games and get into this street fight! Turn the tables! Get a strong message and repeat it like crazy. Get on the TV shows, all of them. Speak up for the American people.

Stop arguing over arcane rules and tell the American people what is going on!

Regarding getting rid of the filibuster entirely... just think if the shoe were on the other foot and a "simple majority" could not, in any case, be stopped. I'd like to have at least some outlet to protect against this contingency.

The point is, the party that performs the filibuster should be prepared to face dire consequences.

With all due respect, the thesis of this article is a complete cop out. The point of forcing them to actually filibuster is to put on display for all the world to see what is going on. Sure they COULD just put one Senator on the floor while the rest go on vacation, but how long would that last? As you pointed out, Senators like to hear themselves talk, so I doubt they would ever shut up. I bet withing 48 hours Americans would be so sick of it the call would go out to end the filibuster and let the vote commence, and get louder with each passing day. We probably could have had a decent health care bill with a strong public option months ago, had Senator Reid used this tactic. We'll never know until we try it. What went on last month may have been close to an actual filibuster, but it wasn't. As anyone who has ever worked a graveyard knows, the most difficult hours of the day to get through are between about 3 am and 7 am. I see nothing in this article that convinces me a real filibuster cannot happen, only that the majority leader is insufficiently motivated to do so. At this point I almost hope Reid loses his reelection bid, so we can get on with the business of actually leading and governing, rather than "legislating."

Didn't it used to be the case that no other legislation could progress during a filibuster? That seems like a rule that would be a powerful disincentive to filibuster -- try explaining to the public that you're not passing any appropriations, etc. because keeping people with pre-existing conditions from getting health insurance is too important.

And I love the idea of starting it on about October 15. I doubt it would last a day or two at that point. I mean let's play hardball for chrissake. We are bringing poocketknives to a gunfight.

Finally there's some mention of the Nuclear Option. Look, if the Senate Dems don't have the stomach to give up the threat of filibuster, fine. But shouldn't they at least threaten it?

Though frankly, going nuclear on the filibuster would be a good thing, it would have been a good thing if Frist had pulled the trigger back in '05. The simple fact is, the degree to which the filibuster is being used now can only increase, there's simply no point in not using it if you're the minority party, and when Dems are the minority party again, they'll use it as well. The filibuster has been abused too much to ever again return to being the "extreme measure" it once was. If the Dems nuke it now, they'll get a lot of grief from the Becks and Limbaughs, and probably from the mainstream media as well. They'll look like bad guys who changed the rules for themselves when they had the opportunity. They'll be accused of pulling the dirtiest dirty trick in the history of the Senate.

For a while.

And then it will fade away, and with the White House, and majorities in both houses of Congress, they'll be able to do some real legislating. They'll look like winners. And in the end, they'll build back any political capital they lost and then some.

Or they could *not* do it, and face a repeat of this year for every year that they've got the majority, because if there's one thing that Senate Republicans have learned, it's that obstructionism works.

And ye shall know the size of their balls by the power of their teabagging.

I don't see how you can discuss this issue without even mentioning the important rules change where it went from 2/3 of members present and voting to 3/5 of all Senators.

Under the old system, let's say the minority has 34 senators who want to block something, and there are 66 who want to pass it. In that event, the majority can push through a cloture vote if all the minority members aren't there. Which means that if you're staging a filibuster, you need to have your whole group easily available to reach the floor in time for a cloture vote, or else the majority can push it through in your absence - if even one senator is missing you can lose the cloture vote if the majority can get all its guys in place.

On the other hand, under the current system, all you need is one person on the floor at any time to withhold unanimous consent and the majority can't possibly get cloture, so long as you have 40 other senators not around.

Furthermore, in this instance it's up to the majority to maintain a quorum. If they don't, the one dude can just go home because the Senate can't proceed with business.

Under the old system, filibustering was something which was annoying for both sides, but in which the majority had an advantage - it was more onerous for the minority. Under the new system, the filibuster is more onerous for the majority, and there's basically no cost at all for the minority.

I think it took people a while to realize this, but this is really what has made the filibuster (or filibuster threats, I guess) omnipresent. Before, it took real work to maintain a filibuster, so there was no real way to keep a disciplined majority together to prevent cloture on the vast majority of issues. Now, there's no cost, so no obstacle to the minority filibustering everything.

True democracy means one person, one vote. Every citizen's vote is equal. The United States is not a democracy. Government was not set up that way. The House is as close to a democratically elected body as we can have, if districts are apportioned in a way that truly represent the populace. The Senate, with New Mexico having the same representation in the chamber as California, was already devised to offer a minority protection from a majority. Heaping the filibuster on this already non-democratic arrangement piles stalemate upon stalemate. The founding fathers wanted change, if it came at all, to happen slowly. Without a super-majority party caucus dedicated to an agenda, the filibuster makes change damn near impossible.

The argument that the Dems should retain the filibuster, because they may need it in the future when they are in the minority, does not hold water.

The only argument that holds water is, if your party has a majority vote in the House, a majority vote in the Senate, and holds the Presidency with a President that will sign legislation those majorities in Congress pass, then you got in that position for a reason.

The reason being, the American People put you in that position. And expect you to deliver.

Therefore, the will of the majority of the People should be allowed to proceed.

Whether that is a Republican Party agenda, a Democratic Party agenda, a Green Party agenda, or whatever.

The filibuster is simply an artificial tool used by Senators to make themselves and their chamber more powerful that they or it otherwise would be. And in a weird sort of way, it entrenches an already insanely corrupt two-party system.

Its wrong. On many different levels. And needs to go.

Give them time to grab their hair pieces and send them home.

Is some senator really going to sit on the floor, filibustering as quietly as a potato on one half of a tv screen while people are dying from lack of health care on the other? Get some popular anger going.

Nice piece on the filibuster but I don’t understand where the nuclear option fit into that (but do recall Cheney being a key).

So why not just attach the final HCR bill to one of the spending bills working their way through and pass it under reconciliation rules? To a great extent it is a spending bill. Yes, the GOP will scream bloody murder but after a week or so, will anyone really care? It’s hard to imagine anything worse than the status quo.

And Chris at the top does have a point. The Dems have historic majorities in both houses and appear completely paralyzed.

It's perfectly reasonable for independent voters to question Democrats fitness to lead. I'm a life long Democrat and I've been questioning this for a couple months now. I'm completely disgusted.

OK fine BUT...what are we going to do to show the country that the
Republicans are just blathering. I kind of like the 'potato' metaphor.
Right now, the GOP goes on the Sunday shows and says 'WE have a plan and
those nasty Dems won't let us TELL you about it!' OK we ram an issue
down their throats, have them filibuster and say WHY they don't like it
and WHAT they'll do to fix it OR they do the potato thing...but it's all filmed by CSPAN.

"Late Update: As one of our readers points out, it would indeed be possible to amend the Senate's cloture rules without a two-thirds vote. But as Ritchie notes, it would require the vice president to make "some drastic rulings" that "would change the whole nature of the institution." And so far, neither party seems to have the stomach for that."

I'm glad you updated but there's nothing "drastic" about it. They already did it once!

That's what happened in 1975. They simply changed the rule, with 51 votes. Biden could do this and only needs a simple majority to pass.

The principle here is that past senates can't have more power than current senates. The 1975 Senate said 60, but the 2010 could say 55.

Now, we might fear that the GOP would then be able to pass all kinds of crap when they have 51 votes. But they could easily do this themselves, and probably will at some point.

Simply put, the 60 vote barrier is unlikely to stand. Dems might be too cowardly to change it, but GOP is brazen enough and the usual IOKIYAR rules say that they can do it but not Dems.

Dems are being cowardly if they hang onto this stupid rule. Although, that said, to blunt criticism, I'd wait until December. Then ram everything though.

California faces a similar obstacle to governing because the people in their stupidity voted to require a 2/3 majority to pass any budget, and much worse, a 2/3 majority to raise taxes, but a 50% majority to lower taxes. This automatically ratchets taxes down over time, while the budget process is totally stalemated. We now have an drive underway to amend our state constitution to prevent this, http://www.californiansfordemocracy.com/ so I hope any Californians here will join and help pass this amendment. We need an amendment to the US Constitution that specifically calls for a congressional majority vote on everything.

It was only a couple years ago that we were thankful to have the filibuster.

One last comment: as we have seen with the impeachment of President Clinton and the invasion of Iraq, Congress and the President can do anything they like, it's just a matter of political will. There is nothing stopping the Democrats from killing the filibuster, either for good or just for one vote. They are just not strong willed enough to do it. They simply lack the political will.

Of course, one could always make the likes of John McCain and Jim DeMint filibuster all night long for 100 days. If nothing else, Americans would be forced to understand the absurdity of a filibuster by watching this spectacle.

We'd be better off with no Senate at all. They have too much power. One senator can put a hold on any legislation, any presidential nominee, and can do so in secret. One senator can block the will of the people.

Since we're stuck with the Senate, I think the best way to fix the filibuster issue is to limit it in number per session, per party.

In the NFL, you get a set number of "challenges" per game, so you have to use them wisely. Figure out the right number for the Senate, award that to each party per session, and watch the logjam unravel.

This would also have the effect of allowing for better legislation and less watering down of bills. Get enough votes for a simple majority, don't worry about pleasing the crazies, and make positive change possible again.

"And majority leaders typically wouldn't even want members of the minority to filibuster, Ritchie explained. Why give them that platform?"

This is beyond risible. If the minority party would have had to actually filibuster something - at least back before Obama had squandered his credibility - the image would have been of a bunch of mumbling morons obstructing the will of the public.

Gladly give them the platform to sound like idiots.

Democrats don't want to see Republicans use the filibuster, if they did, the public would exert pressure to get more done. I hate to admit it, but our Congress is purely window dressing. You nor I, have anything to say when it comes to governing our country. If the Oligarchy doesn't allow it to happen then it will not happen. If you want evidence, just think back a few short months ago to the Cramdown legislation. Handily defeated with multiple democratic votes, how many homes could have been saved if the banks had to negotiate in Good Faith with those homeowners?

There is another strong reason that the majority is reluctant to force the minority to actually filibuster - if they did, in retaliation the minority could )and would) grind the Senate to a halt procedurally, not just on HCR.

Senate rules require a fair amount of cooperation to just keep things moving day to day, including the use of unanimous consent for most routine items. In effect, the entire operation requires agreement between the parties to NOT enforce the letter of the rules they operate under.

Remember when Tom Coburn single-handedly forced the reading of Bernie Sanders' single payer amendment? Typically the Senate would agree to forgo such time-consuming and unnecessary activities. But that can unravel at any time. That is just one of hundreds of such tactics that the minority could use to retaliate against a majority that chose to restrict the use of a filibuster, or to call the GOP bluff by making them take the floor. In doing so, they could bring a complete stop to almost all other Senate business (as opposed to the dysfunctional tortoise pace at which they now operate).

That is why when Frist proposed it, it was termed the "nuclear option" - because it was understood that it would invite Democrats to use all of these parliamentary tools as well.

It might be satisfying (and possibly even politically useful) to make the Republicans take to the floor and conduct an actual filibuster if they are so determined to stop health care. But as a practical matter, it would make it virtually impossible for the Senate to accomplish anything else all year -- a new jobs bill, passing a budget, approving nominees, etc. Perhaps it would ultimately shame the Republicans into backing down because of public reaction -- but with this crew in this environment, I doubt it.

It is clearly time for the Senate to revisit the rules that make it impossible for them to function as a real legislative body -- the Republicans' misuse of the filibuster is a clear violation of the spirit that underlies the entire approach to Senate rules -- but I fear that attempting to do it unilaterally in the middle of a contentious session would do absolutely no one in the country any good unless were are certain that public opinion would rise up against Republicans for their obstructionist tactics (and that certainly hasn't happened yet).

Seems kind of a shame the Gang of 14 stopped the Nuclear Option in 2005, isn't it? We could have traded a much better HCR bill (with passage) for a handful of Republican life-time judicial appointees. Seems a fair trade to me.

I think Frist's 2005 approach has laid the blueprint for HCR and the fillibuster: set a date for the final passage (of a compromise bill); if the vote of cloture isn't passed, apply the Nuclear Option and eliminate the filibuster entirely; pass HCR bill by simple majority.

This will force the Republicans (or possibly some- Snowe, Collins?) to either play ball via Gang of 14 approach or resort to the Dems threats of '05 of shutting down the Senate in response. Either way, HCR passes and if Nuked, the Republicans resort to shutting down government in response this will be the story going in to November (Repubs shut down government over Dems passing Helath Care- doesn't sound too good).

Either way, as others have pointed out already, the filibuster seems destined to be eliminated. Not in 2005, if not now, then probably when next the Republicans gain control of the Congress and Presidency and want to push through their pet legislation. So it seems we might as well eliminate it in favor of HCR. Seems a worthy cause.

This is just an argument for giving up ... So what if they don't have to stay up all night talking. So what if only one Republican has to be there to keep it going.

This is a media war. Make them Fillibuster! The media will pick up on this as the greatest event ever ... if they speak, so be it, the conversation will be in public and they will have to talk about something in public ... if they don't speak, great, the dems will have a platform to speak. Regardless, Dems will be able to castigate their rivals for blocking due process, and they can go on all the Sunday shows and demand "an up or down vote" and disparage their colleagues as cowards for not allowing the vote to go forward ... instead of being labeled as the ineffective cowards that they apparently are ...

Besides the big example that always gets help up of a fillibuster is the civil rights act ... and guess what. In the end, the fillibuster failed ...

It's theater .. the sooner democrats figure that basic fact out, the better off we will all be.

Even if a filibuster succeeded at least the American voter would finally be educated on what a filibuster is. Then the Republican Party obstructionists would get the blame they so richly deserve for Health Care failure.

I think that, since the Senate is not a continuing body, it adopts new rules during its opening session every two years. If this is indeed so, the rules on cloture can be changed at that time. Once the rules are adopted, a two thirds vote is then required to change them.

Just wanted to repeat, for emphasis, a post by trblmkr above:
"If you believe, as I do, that Senate Republicans find they "must" oppose all Democratic initiatives not because of a profound difference in political philosophy but due to a cold electoral calaculation, then we should support Obama in his newly donned populist mantle.
"Expose the Republicans' cynical strategy by bringing populist banking legislation forward not in one big bill but one statute at a time. Create daily headlines showing tea baggers just how misdirected their anger is."

People have been lied to and whipsawed so much that I think most Americans just 'blank out' the talk, especially if it sounds complex. Hence the appeal of the "clear message" (lies) of Fox, Palin, etc. But ... what is even easier to comprehend that lies and spin, no matter how simplistic? A vote. Everyone understands voting and if the votes are actually *held* they can put faces to the votes and hold them accountable for the result of their votes.

I wish Pelosi would hold an up and down vote on the Senate bill in the house -- maybe she doesn't have the mass of votes necessary, but why don't we get to know how the individual *we* elected to the House was prepared to vote for or against it?

If they would simply CALL the votes - in both the House and the Senate -- you might find a good bit less purely partisan behavior .... and a much more informed public, voters far more aware of what their representatives are doing "in their name" I thought that's how a representative democracy was supposed to work, come to think of it.

Make. Them. Filibuster! It is the only way to stop the madness. Americans understand absurdity. Rahm's family sells fantasy. CSPAN shid be he perfect forum. It's just too damn inconvenient for the Ds right now, I guess.

The rule requiring 2/3 to change a rule is the one that's genuinely unconstitutional. I mean, if that's constitutional, why not a rule that no rule can ever be changed at all? One Senate can't bind a future Senate in that way -- because the Constitution makes the Senate the sole authority on its rules. And that means the Senate that's actually in session, not some long-ago Senate that no longer represents anybody.

I disagree that this article explains why the threat of a filibuster has been mistaken for an actual filibuster. It's old, it's archaic, it's customary: it's all bullshit.

None of the reasons cited are even remotely valid. Bill Clinton approval ratings responded very, very positively when he stood up to Gingrich's obstuctionism --- and the same is true of the filibuster. IF an Senator holds back the nation's business for petty, immoral or unjust purposes, the electorate obviously susses that out and responds accordingly.

So when Ritchie says "Senators like to talk, actually," ... "And it's not really a punishment to make them talk. Especially with television in the chamber." //

Plus, Ritchie said, several majority leaders believed that these "all-night talk-a-thons weren't doing anybody any good."

An actual filibuster is an opportunity for jackasses like Joe Lieberman and John McCain to display just how incredibly irresponsible their judgment really is. The fact that Democratic majorities let them off the hook, rather than insisting they DO filibuster, shows that Harry Reid colludes with the Tom DeLays of the world PRECISELY so that Dems can feign helplessness and the 'bipartisan' or 'centrist' (read: neoliberal or right-wing) agenda can go foreward totally unimpeded by common sense or majority rule votes.

You have to be naive and dishonest not to understand that allowing 'filibustering', without actually filibustering, is just a way to go along with the minority while reaming your own base right out there in the open: 'I was so helpless with my 59 votes, and their 41 votes were so big an strong, I just swooned before the brutes had their way with me.'

Note just how Orwellian, disingenuous and just plain factually incorrect Ritchie really is:
"Ritchie said, mostly because majority leaders realized that "they don't winn by letting the minority talk forever." Majority leaders don't win by actively letting the minority WIN at the mere suggestion of a filibuster, either, do they? Further, majority leaders win political points by watching fools filibuster popular, necessary and enlightened policies.

Let the neanderthals take a stand on minor points and politically untenable positions, and Republicans will be commiting political suicide before the sun rises.

But that would mean playing to win -- and Dems don't want to win. They want an excuse to lose. They want to deliver Republican policies despite their Democratic base. THat's why the threat of filibuster is used and ceded to as if it were the real thing.

To force a filibuster would be to win the legislative fight, and Dems don't want to win. They're playing to lose.

Frumin is wrong, and Marshall is wrong. We have every reason to force a filibuster. Dems don't force it, because the tactic would work and it'd make liberal/progressive legislative power capable of, you know, legislating.

It's not rocket science. It's not the higher math. It's pretty fvckin obvious.

Wasn't the last real filibuster over the Civil Rights bill, which PASSED?!?! That fact makes the whole of this article, not credible because it is based on the idea that a real filibuster will never work, so it's not even worth trying.

In a comparison likely to offend both parties, Fox News host Bill O'Reilly compared the South Side of Chicago to Haiti during a January 23rd stop on his "Bold Fresh Tour," accompanied by Glenn Beck.

President Obama is constantly pushing government as the solution to every problem, O'Reilly argued, despite there being no evidence to support this idea:

And I'm going, I don't know how that's possible. If you've ever been to the South Side of Chicago, I mean, it's a disaster. Alright? It's like Haiti. it's like -- I've been to Haiti a couple times, and I support some charities there, but Haiti just never gets better no matter how much money you put in there because they don't have a system.