Getting things through the Senate

William Kristol, Editor of the Weekly Standard, from his column in the Washington Post following the President’s speech to Congress

For Obama’s aim is not merely to “revive this economy, but to build a new foundation for lasting prosperity.” Obama outlined much of this new foundation in the most unabashedly liberal and big-government speech a president has delivered to Congress since Lyndon Baines Johnson. Obama intends to use his big three issues, energy, health care and education, to transform the role of the U.S. federal government as fundamentally as did the New Deal and the Great Society.

Conservatives and Republicans will disapprove of this effort. They will oppose it. Can they do so effectively?

Perhaps — if they can find reasons to obstruct and delay. They should do their best not to permit Obama to rush his agenda through this year. They can’t allow Obama to make of 2009 what Franklin Roosevelt made of 1933 or Johnson of 1965. Slow down the policy train. Insist on a real and lengthy debate. Conservatives can’t win politically right now. But they can raise doubts, they can point out other issues that we can’t ignore (especially in national security and foreign policy), they can pick other fights — and they can try in any way possible to break Obama’s momentum. Only if this happens will conservatives be able to get a hearing for their (compelling, in my view) arguments against big-government, liberal-nanny-state social engineering — and for their preferred alternatives.

David RePass wants to call the Republican bluff.  If they want to implement the delaying tactics and as Kristol says, “slow down the policy train” Harry Reid should let them try.

To reduce deadlock, in 1917 the Senate passed Rule 22, which made it possible for a supermajority — two-thirds of the chamber — to end a filibuster by voting for cloture. The two-thirds majority was later changed to three-fifths, or 60 of the current 100 senators.

In recent years, however, the Senate has become so averse to the filibuster that if fewer than 60 senators support a controversial measure, it usually won’t come up for discussion at all. The mere threat of a filibuster has become a filibuster, a phantom filibuster. Instead of needing a sufficient number of dedicated senators to hold the floor for many days and nights, all it takes to block movement on a bill is for 41 senators to raise their little fingers in opposition.

Historically, the filibuster was justified as a last-ditch defense of minority rights. Under this principle, an intense opposition should be able to protect itself from the tyranny of the majority. But today, the minority does not have to be intense at all. Its members have only to disagree with a measure to kill it. Essentially, the minority has veto power.

The phantom filibuster is clearly unconstitutional. The founders required a supermajority in only five situations: veto overrides and votes on treaties, constitutional amendments, convictions of impeached officials and expulsions of members of the House or Senate. The Constitution certainly does not call for a supermajority before debate on any controversial measure can begin.

And fixing the problem would not require any change in Senate rules. The phantom filibuster could be done away with overnight by the Senate majority leader, Harry Reid. All he needs to do is call the minority’s bluff by bringing a challenged measure to the floor and letting the debate begin.

I have to say that it has long puzzled me that a majority is 60 votes, not 51.  RePass concludes

It also happens to make a great deal of political sense for the Democrats to force the Republicans to take the Senate floor and show voters that they oppose Mr. Obama’s initiatives. If the Republicans want to publicly block a popular president who is trying to resolve major problems, let them do it. And if the Republicans feel that the basic principles they believe in are worth standing up for, let them exercise their minority rights with an actual filibuster.

It is up to Mr. Reid. He can do away with the supermajority requirement for virtually all significant measures and return majority rule to the Senate. This is not to say that the Democrats should ride roughshod over the Republicans. Republicans should be included at all stages of the legislative process. However, with the daunting prospect of having to mount a real filibuster to demonstrate their opposition, Republicans may become much more willing to compromise.

Jean Edward Smith concurred with RePass in his entry on the New York Times blog 100 Days.  Writing on March 1 he pointed out the racist modern history of the filibuster.

In the entire 19th century, including the struggle against slavery, fewer than two dozen filibusters were mounted. In F.D.R.’s time, the device was employed exclusively by Southerners to block passage of federal anti-lynching legislation. Between 1933 and the coming of the war, it was attempted only twice. Under Eisenhower and J.F.K., the pattern continued. In the eight years of the Eisenhower administration, only two filibusters were mounted. Under Kennedy there were four. The number more than doubled under Lyndon Johnson, but the primary issue continued to be civil rights. Except for exhibitionists, buffoons and white southerners determined to salvage racial segregation, the filibuster was considered off limits.

But with the enactment of major civil rights legislation in the 1960s and ’70s, the issue of equality for African-Americans faded from the Senate’s agenda, and the filibuster shed its racist image.

It was during the Clinton years that the dam broke. In the 103rd Congress (1993-1994), 32 filibusters were employed to kill a variety of presidential initiatives ranging from campaign finance reform to grazing fees on federal land. Between 1999 and 2007, the number of Senate filibusters varied between 20 and 37 per session, a bipartisan effort.

The routine use of the filibuster as a matter of everyday politics has transformed the Senate’s legislative process from majority rule into minority tyranny. Leaving party affiliation aside, it is now possible for the senators representing the 34 million people who live in the 21 least populous states — a little more than 11 percent of the nation’s population — to nullify the wishes of the representatives of the remaining 88 percent of Americans.

So this is a challenge to Harry Reid:  Call the Republicans’  bluff, call William Kristol’s bluff and make them filibuster legislation proposed by a President that the latest polls show has a close to 70% approval rating.

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