Filibuster

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What does Chuck Hagel have to do with Benghazi?

I wish someone would explain to me what someone who was not even a government official at the time has to do with Benghazi?  Is Chuck Hagel just leverage?  Believe me, the Obama Administration could show live action footage of the event as it unfolded and the Republicans still wouldn’t be happy.

According to Politico

One Armed Services Committee member, South Carolina Republican Sen. Lindsey  Graham, has made clear that he considers Benghazi and Hagel to be one issue —“no confirmation without information,” he said Sunday, threatening to block both  Hagel and CIA nominee John Brennan. Graham is demanding more details from the  administration about its response to the Benghazi attacks, particularly the  direct involvement of President Barack Obama.

And then you have James Inhofe.  Again from Politico

A spokeswoman for Sen. Jim Inhofe (R-Okla.) confirmed to POLITICO that he wanted  to drag out the confirmation process for the former Republican senator from  Nebraska.

Inhofe’s threat continued GOP brinksmanship that got under way on Sunday when  Republican aides first said that some senators might walk out of a meeting that  included a vote on Hagel. Inhofe and another top Republican on the committee,  Sen. John McCain of Arizona, both said Monday they would not walk out, but  Inhofe repeated his vow to press the battle against Hagel.

It appears very much as if the Republicans have forgotten that they are a minority in the Senate.  If Chair Senator Carl Levin calls for a committee vote, it will be along party lines which he didn’t want.  But I don’t think there will be any bipartisan agreement there.  According to the New York Times, Levin

…called Monday for a committee vote on Tuesday afternoon on the nomination of former Senator Chuck Hagel to be the next secretary of defense.

The committee action has been postponed for the past week over evolving demands from Republicans for new documentation on Mr. Hagel’s past statements, personal financial records and even a sexual harassment allegation involving two former staff members, but not Mr. Hagel himself. As action has drawn closer, Republican opponents to a former Senate Republican colleague have threatened filibusters and even a walkout from the committee.

Once Hagel’s nomination reaches the floor, vote counters believe that there will be 60 votes to break any attempt at a filibuster.  Maybe Majority Leader Reid need to reconsider his agreement with Senator McConnell since I don’t think it is going to work.

But Mr. Levin’s decision to call for a public discussion and vote, starting at 2:30 p.m. Tuesday ahead of President Obama‘s State of the Union address, indicated that the chairman still believes that Mr. Hagel has enough support to be confirmed. Committee aides say they have no indication that any Democrats or Senate independents will oppose him, putting him at 55 votes to start. Two Republican senators, Thad Cochran of Mississippi and Mike Johanns from Mr. Hagel’s home state, Nebraska, have pledged their support, and at least four Republicans have said they will oppose a filibuster.

And I still want to know what Chuck Hagel has to do with Benghazi, Senator Graham.  I think we all know that this really has to do with the fact that Hagel is not a war hawk and will figure out a way to cut the defense budget.

Photograph Brendan Hoffman for The New York Times

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How to filibuster your own bill

I think that Mitch McConnell has just helped out the Senators who are looking to reform the Senate rules.

This is from the Washington Post

In a bit of parliamentary squabbling common only to the United States Senate, the chamber will not be voting Thursday on President Obama’s proposal to largely shift responsibility for raising the debt ceiling from Congress to the White House.

Senate Minority Leader Mitch McConnell (R-Ky.) proposed an immediate vote on the idea Thursday morning, as a way to highlight potential Democratic unease with the idea.

This afternoon, Senate Majority Leader Harry M. Reid (D-Nev.) called that bluff, asking to proceed to immediate vote on the measure. But he asked for an up-or-down vote, allowing the Senate to skip to a final vote by which the measure could be approved on a simple 51-vote majority.

McConnell countered the measure should require a 60-vote majority, as most votes do in the Senate.

“What we’re talking about here is a perpetual debt ceiling grant, in effect, to the president. Matters of this level of controversy always require 60 votes,” McConnell said.

Reid objected to the 60-vote threshold. “What we have here is a case of Republicans here in the Senate once again not taking yes for an answer,” Reid said. “Now the Republican leader objects to his own idea. So I guess we have a filibuster of his own bill.”

Go, Mitch!

It really is time to go back to majority votes except on treaties.

Photograph:  AP

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Talking in the Senate

Back in 2010, I wrote about the filibuster in a post called “Puppies, Cats and Filibusters“.  In it I argued for the talking filibuster.  It didn’t seem at the time that there was any real move to do away with it totally, but making someone actually show up and explain why while holding the floor and appearing on C-SPAN seemed reasonable.  It has only taken a few years, but it looks like Harry Reid and a number of Senate democrats are moving toward a similar solution.  I am still waiting, however, for a clear explanation of how exactly the change could be accomplished.

Here is what I understand so far.  It usually takes 67 votes to change Senate rules, but there is a mysterious thing called the “nuclear option” where the rules could be changed with only 51 votes.  We know there are 53 Democratic senators and 2 who will caucus with them at least one of whom (Saunders, VT) should be voting with Reid on this.) So there are probably enough votes if there is some party solidarity.  But how does that “nuclear option” work?  That is the question.

The New York Times had this

Senate Republicans have refused to let scores of bills go forward in recent years, often because Mr. Reid will not allow the party to put amendments on those bills. This practice is deplored by the minority in both chambers, but only in the Senate can bills be stopped through the minority protest. Mr. Reid would like to limit what procedural motions are subject to filibusters, and to force senators to return to the practice of standing around forever, reading the phone book or what have you, if they choose to filibuster a bill before its final passage.

“If a bare majority can proceed to any bill it chooses,” said Mr. McConnell, deeply angry, “and once on that bill the majority leader all by himself can shut out all the amendments that aren’t to his liking, then those who elected us to advocate for their views will have lost their voices in this legislative process.”

Mr. Reid countered that the filibuster was “not part of the Constitution.”

“It’s something we developed here to help get legislation passed,” he said. “Now it’s being used to stop legislation from passing.”

And Ezra Klein explained McConnell’s objections this way

McConnell is referring to the Democrats’ proposal to change Senate rules with 51 votes rather than 67. But his outrage isn’t particularly convincing. As Senate whip, McConnell was a key player in the GOP’s 2005 effort to change the filibuster rules using — you guessed it — 51 votes. As he said at the time, “This is not the first time a minority of Senators has upset a Senate tradition or practice, and the current Senate majority intends to do what the majority in the Senate has often done–use its constitutional authority under article I, section 5, to reform Senate procedure by a simple majority vote.”

Now, Reid, at the time, was steadfastly opposed to changing the rules with 51 votes. He condemned the idea as “breaking the rules to change the rules.” So McConnell isn’t the Senate’s only inconsistent member on this point. But the fact is that McConnell was right the first time: The reason that Republicans believed they could change the rules with 51 votes in 2005 and Democrats believe they can do the same today is that they can.

So I guess it really is a constitutional not nuclear option to change the rules by a simple majority.  And the changes being proposed are pretty modest.  Basically you could only filibuster final passage of a bill, not bringing it to the floor at all.  The Republicans seem to want to amend bills and I think this is OK, but there has to be acaveat that any amendment must be related to the actual substance of the bill.  Room for some compromise here?

But if you want to know what this is important at all think about all the judges being held up, all the bills that don’t come to the floor of the Senate because someone (and we currently don’t have to know who) decides they want something to come to a vote.

This is from the Washington Post.

In order to overcome a filibuster — when a political party attempts to block or
delay action on a bill — the Senate can invoke a procedure called cloture. Sixty
votes, or three-fifths of the Senate, is required for cloture regardless of
whether all senators are present and voting. If cloture is passed, a time limit
is placed on the debate, ultimately ending the filibuster. Read related article

*The minority party of the 107th Congress changed multiple times. Source: United States Senate. The Washington Post. Published on November 27, 2012, 8:35 p.m.
So we do have a problem here.  The question is whether it can be fixed or if the Senate will continue to be dysfunctional.  I would actually look forward to seeing John McCain or Tom Coburn or some other Republican Senator on C-SPAN holding forth at length explaining opposition to a measure.  Then we could all call our own Senators in either support or opposition.  Could be fun.
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Puppies, Cats and Filibusters

Last night Rachel Maddow did this weird segment launching her contest to come up with a word that is less boring that filibuster.  Her theory being that the process won’t change until people understand what it is and they won’t understand it until we come up with a word that doesn’t put everyone to sleep.

Rachel explained this while running unrelated video of a puppy who kept falling asleep in a large pan of water.

So I tried an experiment.  Peter, one of the cats, was asleep on the end of the sofa.  I called his name.  He woke up and looked at me.  I told him I wanted to have a conversation about filibusters.  He promptly closed his eyes and went back to sleep.  Coincidence?  Probably.  I didn’t say the magic word, “food”, for one thing.  But it was kinda cute.

I’ve written about the filibuster several times in the past and despite what Harry Reid seems to want to do (which is nothing) something has to happen.  Did everyone hear President Obama mention many things which have passed the House and not the Senate during his State of the Union Address?  And it is sad that the Senate has to be threatened with recess appointments before they begin to confirm nominees.

Of all the suggestions, I think the best is not changing the 60 vote rule itself, but instituting the old talk until you drop rule.  No more going on to other business.  No more going home.  If you call for a filibuster, be prepared to talk.

Come on, Senate Democrats.  Stop looking like sleepy cats and puppies.

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Doing business in the Senate

I’ve written before about the need to end the filibuster and I called for an end to the process.  But last night I was reading through a very interesting discussion on politico.com’s Arena and I think I have changed my mind.  Instead of ending the process entirely, the Senate should change its rules to make its use very rare.  There are lots of good ideas expressed, so if you are interested, use the link and read through the entries. 

Tom Korologos (billed as a Republican strategist) argued for keeping things as they are pointing out that it takes super-majorities of the Senate to override Presidential vetos and ratify treaties, but I disagree that those are the same thing and those are in the Constitution and are not just Senate rules.  The point being that there should be some situation requiring a super-majority, but not every bill.  There is something wrong when every piece of legislation coming before the Senate requires a 60 vote cloture to even proceed to debate.  So what to do?  Here are some ideas.

Theada Skocpol suggests

Much of this is happening by Senate custom and party rules — interacting with ideological and regional extremism — not because of the Constitution. The Senate and the Democrats should make changes that they will have to realize could work in the other direction at a later time. Filibusters should have declining margins as time passes, reducing the supermajority needed to proceed to a vote from 60 to 57 to 55 — and maybe even down to 53 or 50. Minorities should be able to force delay and protracted debate, but not block government action altogether.

I like Bernard I. Finel’s ideas

The American political system already contains a great number of veto points, so a supermajority requirement in the Senate is neither necessary nor conducive to good public policy. That said, I could see a case for the rare use of a filibuster in extreme circumstance. But I’d like to propose two modifications. (1) A filibuster should actually tie up Senate business completely. The party responsible for the filibuster should have to speak from the floor throughout the process, and should as a result take the blame for shutting down the legislative process and, indeed, in some cases shutting down the federal government. The cost-free filibuster we have now is simply too tempting to use for purely obstructionist purposes. (2) Maybe, like the challenge flag in pro football, each party could have a limited number of filibuster opportunities per legislative session. That would keep it an option for important issues, while not allowing the minority to be obstructionist across the board.

Christine Pelosi also agrees with the make them talk idea.  Let’s make Senator’s who want to filibuster be like Jimmy Stewart in Mr. Smith Goes to Washington. 

To these ideas I would add that even if the filibuster is maintained, let’s not allow it for Presidential nominations.  Maybe Supreme Court, but not the lower courts and certainly not for cabinet members.  And there shouldn’t be “holds” allowed for those nominees.

Lanny Davis is all for abolishing the filibuster and wants to file a lawsuit that it is unconstitutional.  I think that might be going a little far but I do agree that

For Democrats: The filibuster is good when they were in the minority and they blocked numerous judicial nominations of President Bush, requiring Republicans to get 60 votes for cloture in order to obtain an “up or down” vote by majority rule. But the filibuster is bad when they are in the majority and the Republicans are insisting on 60 votes before they can have an up-or-down vote on health care. Yes, one was about judicial nominations. The other about health care. But as my law school professor used to say, “that’s a distinction without a difference.” The principle is the same — the constitution requires only majority rule — and so do Democratic principles. The Democrats ignore that principle that an up-or-down vote should be allowed, with majority rule governing, when they are in the minority, but insist on it when they are in the majority.

For Republicans: They sanctimoniously threatened a constitutional challenge and the “nuclear option” — ignoring Senate Rules to force up-or-down votes without 60 votes and cloture — when they were in the majority and insisted on the “up or down” vote for President Bush’s judicial nominees, and accused the Democratic Senators of being “obstructionists” when they were filibustering. (Indeed, that argument in large part defeated then Minority Leader Tom Daschle in his reelection race). But, shamelessly it seems, now that they are in the minority, Republicans have suddenly forgotten about the principle of majority rule and the need for an “up or down vote,” and now they are obstructing a vote on health care and requiring 60 votes to have it.

Can both parties at least admit to their double standard on majority rule vs. the filibuster?

Amen, Lanny.

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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.