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A history of the Filibuster, Cloture, and Senate Rules (or: We don't need a 60-vote supermajority. We need Senate Leadership that has some balls)

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  • Jerry Policoff
    We keep hearing about how nice it would be if the Democrats held 60 seats in the Senate because they would then be able to prevent the Republican minority from
    Message 1 of 2 , Dec 4, 2008
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      We keep hearing about how nice it would be if the Democrats held 60 seats in the Senate because they would then be able to prevent the Republican minority from blocking Democratic legislative initiatives.  First of all, that magic “60” is really meaningless because it assumes Democrats and Republicans always vote as a united block.  In fact, many Democrats often vote with the Republicans on key issues, and it is really impossible to invoke “cloture” unless at least a few Republicans join with the Democratic majority to “cut off debate.”  But moving past that fact, our current “silent filibuster” rule is only the most recent evolution of filibuster and cloture rules in the Senate, and the Senate can, and often does, change its rules.  It requires a simple majority vote to do so.

       

      Based on the nonsense that emanates from the Senate Leadership and the corporate media one would think that the current rules are an ancient Senate tradition that we dare not tamper with for fear of offending the spirits of our Founding Fathers.  In fact, there is nothing in the Constitution about the filibuster.  The concept grew out of the tradition that members of the Senate had the right to “unlimited debate,” (debate in the House of Representatives has been limited for nearly two centuries) when legislation was being considered.  This tactic allowed a small minority of Senators (or even one Senator) to literally talk a bill to death. 

       

      In 1917 the Senate adopted Rule 22 that allowed the Senate to end a debate (or a “filibuster”).  The first time this rule was invoked was not in the early days of our Republic, but in 1919 when it was used to kill a filibuster against the Treaty of Versailles.  Still, the filibuster remained an effective, if rarely utilized, tool because of the difficulty required to get two-thirds of the Senate to vote for cloture.  In 1975 the Senate again changed its rules, reducing the cloture requirement from a two-thirds vote to three-fifths vote, and sanitized the process by requiring that 41 Senators need only state an intention to filibuster in order to block legislation.  These are the rules in place to this day.  Are they set in stone?  No.  In fact you may recall the Republican threat only three years ago to invoke the so-called “nuclear option” which would have in effect banned “filibusters” on judicial nominations and allowed a simple majority to confirm George W. Bush’s appointments without fear of the Democrats blocking them.

       

      So is the victory of Saxby Chambliss in Georgia really any obstacle to the Democratic dream of a “filibuster-proof” majority?  Not really.  An Al Franken victory is still very much a possibility, perhaps even likelihood in Minnesota.  With 58 or 59 (if Franken wins) Democrats in the Senate it will not be all that difficult to come up with 60 votes for cloture even if some Democrats are in opposition to the legislation in question.  But how is this for a “radical” suggestion?  How about changing the rules? 

       

      It would be an easy matter for the Senate to change the rules so that only 55 votes were required for cloture, but that would inspire a firestorm of criticism that would not be easily overcome.  Instead, why not make the filibuster “visible” and “unsanitary” once again?  Why not once again require Senators bent upon blocking legislation to stand up in front of those C-Span cameras and talk the bills to death?   I can’t help but wonder how many Senators would be willing to rush to that podium before the eyes of the world and their constituents to so publicly obstruct the legislative process.

       

      It is quaint to see Harry Reid lament the ability of a 41-vote minority to obstruct important legislation, but he has the power to obstruct the obstructionists by simply shining the light of C-Span cameras upon them.  They will still be able to block legislation by mustering the same 41 votes, but now they’ll have to do it in the open with the cameras rolling.  60 Democrats in the Senate would not guarantee freedom from filibusters, but you can bet your ass we’d pass a lot more legislation with 58 Senators and this simple rule change.  Of course the gutless Democratic Leadership prefers “invisible” obstruction to upsetting the Republican minority, so resign yourself to 41 Senators continuing to kill many pieces of progressive legislation. When that happens I, for one, will blame the Democrats, not the Republicans.

       

       

       

      Jerry Policoff

       

    • Jerry Policoff
      We keep hearing about how nice it would be if the Democrats held 60 seats in the Senate because they would then be able to prevent the Republican minority from
      Message 2 of 2 , Dec 4, 2008
      • 0 Attachment

        We keep hearing about how nice it would be if the Democrats held 60 seats in the Senate because they would then be able to prevent the Republican minority from blocking Democratic legislative initiatives.  First of all, that magic “60” is really meaningless because it assumes Democrats and Republicans always vote as a united block.  In fact, many Democrats often vote with the Republicans on key issues, and it is really impossible to invoke “cloture” unless at least a few Republicans join with the Democratic majority to “cut off debate.”  But moving past that fact, our current “silent filibuster” rule is only the most recent evolution of filibuster and cloture rules in the Senate, and the Senate can, and often does, change its rules.  It requires a simple majority vote to do so.

         

        Based on the nonsense that emanates from the Senate Leadership and the corporate media one would think that the current rules are an ancient Senate tradition that we dare not tamper with for fear of offending the spirits of our Founding Fathers.  In fact, there is nothing in the Constitution about the filibuster.  The concept grew out of the tradition that members of the Senate had the right to “unlimited debate,” (debate in the House of Representatives has been limited for nearly two centuries) when legislation was being considered.  This tactic allowed a small minority of Senators (or even one Senator) to literally talk a bill to death. 

         

        In 1917 the Senate adopted Rule 22 that allowed the Senate to end a debate (or a “filibuster”).  The first time this rule was invoked was not in the early days of our Republic, but in 1919 when it was used to kill a filibuster against the Treaty of Versailles.  Still, the filibuster remained an effective, if rarely utilized, tool because of the difficulty required to get two-thirds of the Senate to vote for cloture.  In 1975 the Senate again changed its rules, reducing the cloture requirement from a two-thirds vote to three-fifths vote, and sanitized the process by requiring that 41 Senators need only state an intention to filibuster in order to block legislation.  These are the rules in place to this day.  Are they set in stone?  No.  In fact you may recall the Republican threat only three years ago to invoke the so-called “nuclear option” which would have in effect banned “filibusters” on judicial nominations and allowed a simple majority to confirm George W. Bush’s appointments without fear of the Democrats blocking them.

         

        So is the victory of Saxby Chambliss in Georgia really any obstacle to the Democratic dream of a “filibuster-proof” majority?  Not really.  An Al Franken victory is still very much a possibility, perhaps even likelihood in Minnesota.  With 58 or 59 (if Franken wins) Democrats in the Senate it will not be all that difficult to come up with 60 votes for cloture even if some Democrats are in opposition to the legislation in question.  But how is this for a “radical” suggestion?  How about changing the rules? 

         

        It would be an easy matter for the Senate to change the rules so that only 55 votes were required for cloture, but that would inspire a firestorm of criticism that would not be easily overcome.  Instead, why not make the filibuster “visible” and “unsanitary” once again?  Why not once again require Senators bent upon blocking legislation to stand up in front of those C-Span cameras and talk the bills to death?   I can’t help but wonder how many Senators would be willing to rush to that podium before the eyes of the world and their constituents to so publicly obstruct the legislative process.

         

        It is quaint to see Harry Reid lament the ability of a 41-vote minority to obstruct important legislation, but he has the power to obstruct the obstructionists by simply shining the light of C-Span cameras upon them.  They will still be able to block legislation by mustering the same 41 votes, but now they’ll have to do it in the open with the cameras rolling.  60 Democrats in the Senate would not guarantee freedom from filibusters, but you can bet your ass we’d pass a lot more legislation with 58 Senators and this simple rule change.  Of course the gutless Democratic Leadership prefers “invisible” obstruction to upsetting the Republican minority, so resign yourself to 41 Senators continuing to kill many pieces of progressive legislation. When that happens I, for one, will blame the Democrats, not the Republicans.

         

         

         

        Jerry Policoff

         

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