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May 28, 2005

Filibuster post mortem

Mark Kleiman is absolutely right:

What I'm sure of is that the deal makes no Constitutional sense.

Either the Constitution allows filibusters to block judicial appointments, or it forbids such filibusters. (It seems to me impossible to distinguish between judicial-nomination filibusters and other filibusters in Constitutional terms, but that's a separate question.)

If the Constitution allows such filibusters, then the threat of the "nuclear option" was an illegitimate threat. A concession made to ward off an illegitimate threat isn't a compromise; it's an act of appeasement.

On the other hand, if the Constitution forbids such filibusters, then it's the Democrats who were exacting concessions by threatening unlawful action, and the Republicans who caved in to that threat. [...]

What makes me saddest is that no one seems to care what the Constitution actually says on the subject. That's not a healthy situation for a constitutional republic.

We'll never defuse the nuclear option unless we discredit it. Otherwise, the threat will persist indefinitely. The latest deal is a temporary reprieve. Now that Frist has raised the issue, there's no going back. It doesn't matter how stable the current coalition is, or whether Frist can be trusted.

What matters is that the public doesn't realize that the nuclear option is illegitimate. This isn't a catch-as-catch-can situation. It's not like there's a legitimate loophole that the Republicans are entitled to exploit if they can. Quite simply, the nuclear option is cheating.

The Republicans can't go nuclear without breaking Senate precedents. Departing from a precedent doesn't sound like a big deal, but it is. Disregarding a precedent in bad faith is as serious as violating a Standing Rule. In the Senate, many of the most important rules are precedents.

The Republicans can't go nuclear unless they're willing to flout at least one well-established precedent. To eliminate the judicial filibuster with 51 votes, the chair must stage a mini-coup by usurping the right to rule on a constitutional point of order that the entire Senate is entitled to vote on. Or he can force an immediate up-or-down vote on that point of order. But the chairman can't force that vote unless he rules that this procedural question isn't open for debate, even though precedent says it is.

In the first scenario the chair simply rules the 2/3 majority rule is unconstitutional. When the Democrats appeal, the Republicans move to table. Moves to table aren't debatable, so there's an immediate vote on the point of order. If the Democrats' appeal is tabled, the chairman's ruling stands with 51 votes.

In the second scenario, the chair allows the Senate to vote on the point of order, but he prevents a debate on the Senate floor. Precedent says that the point is debateable, but the chair won't allow debate. If there's no debate, the Democrats can't filibuster against the point of order. So, the Republicans will destroy the Standing Rule by a simple majority.

Either way, if the Republicans succeed, a new precedent will have been set. From that point onwards, everyone will have to respect that precedent unless they're prepared to stage a counter-coup. That's why everyone's assuming that the judicial filibuster is gone for good if the Republicans deliver their nuclear strike. Precedents are serious business for anyone who cares about the rule of law or the Constitution.

The PR problem is that it's not intuitively obvious why the nuclear option is cheating. It's a real challenge to explain what's wrong in a soundbite. Republican rhetoric focuses on whether the filibuster itself is constitutional. The implication is that if it's not, they're entitled to use any means at their disposal to get rid of it.

Democrats' best bet is to focus on the tactics that the Republicans would have to use to change the rules. Nobody seriously believes those tactics are legitimate. It's pretty clear that the filibuster is constitutionally optional, seeing as the Senate gets to make its own rules. It would be perfectly okay to eliminate the filibuster by a 2/3rds majority vote, but the Republicans are resorting to cheating because they don't have the support they need to change the rules.

We've certainly got our work cut out for us. We should spend our borrowed time wisely.


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Excellent post, and it expresses what I have been so frustrated with since the whole subject began. In my opinion the press, if it has any value now, has to step in and provide the information the public needs to judge this issue. That, unfortunately for the Republicans, would mean the press would skewer the Republican position. But, the press can't do that, because they live in abject fear of the repercussions the GOP would impose on them, and because the owners of the press don't want any anti-GOP news published. So, it really comes down to the sad fact that we no longer have the "free press" that the Constitution refers to.

Unless moderates from both sides of the aisle continue to hold to that agreement and buck the party leaderships... all that the deal did was delay the inevitable.

Even McCain echoed what Reid said earlier on a talk show a couple of nights ago. He said, "they claim that they would only apply the nuclear option to judges, but they know that that's not true it would soon be on legisaltion of all types."

I carry the Constitution around in my purse, just in case I run into any rightwing fuckface. It's actually a slim volume, and I like to familiarize myself with it from time to time.

The constitution says nothing about filibusters; what it says is that the Senate can make their own rules of procedure, and in general, the rules that the Senate follow are the classic "Rules of Order" or Parlimentary Procedure.

BTW -- there was a filibuster at the Constitutional Convention, that's how far back (actually farther) the filibuster tradition goes.

What I can't understand is why it would only take a majority vote to change the rule. I thought it required a 2/3rds vote to change the rules. Maybe I'm missing something here? And why can't they filibuster the filibuster rule change? I mean, theoreticly they can, as far as I can tell.

I also think that, very often, people confuse Parlamentary Procedure with the practice of Capital "D" Democracy. The confusion being the signifigance of "majority rules." If majority rules, then one election should suffice, and that's that. Why test public opinion again? The idea of repeated elections is more democratic, because that way it's more of a taking turns sort of thing, and more of the people/demos get a chance at the process. Lani Guiner, for those of you who remember, was critized for this distinction, and was denied the opportunity for high office over the controversy involving her views on this very issue. The right doesn't do nuance, as Bush so fondly reminds us.

well, two things - one, I agree that the whole thing was political kabuki, and really meaningless - it was the usual trumped up outrage allowing them to do exactly whatever the hell they want no matter what. In the case of those seven 'moderates' it served them with the opportunity to tell Karl Rove and Bill Frist and George Bush exactly who runs the Senate and who doesn't. They can't really back out now, because there are an awful lot of people who want to destroy them if they move out of the protection of the "center" and they've lost the base.

The problem with the illegality of that move is that I don't think they would have gotten the Supreme Court to hear it. They don't, as far as I know, do procedural rules in the Senate, and likely they wouldn't have volunteered to. If the Republicans had done this, they would have gotten away with it.

I really think we dodged a bullet here.


Excellent analysis, although I disagree with the normative assumption that the filibuster is worth saving...

The constitutionality question on both sides is so much smoke. What we have is a naked power struggle being played out in the press. The Constitution assigns certain responsibilities to the Legislature but is intentionally vague about the details, preferring to let the Senate work out the details for itself. What the Senate has done over the past 200 years is work out a series of rules and procedures which are in the nature of gentlemen's agreements, are maintained by the collective will of the Senate and can exist only on a foundation of trust. That foundation of trust has been seriously diminished during the reign of Bush. Whether the filibuster is maintained seems to me to be of relative unimportance. What scares the bejeebus out of me is that if the filibuster is successfully attacked, then the tacit prohibition against violating rules and procedures has been compromised. Will this lead to a domino collapse of the fragile structure in the Senate and thus to a collapse of order? I think the rise of the moderates is our best hope against this, and I am certainly watching this development with great interest.

Lindsay, I think you miss the point of the text you excerpted. That seems to be about the constitutionality of the filibuster, while you seem to addressing the propriety of the procedures necessary to ban filibustering. The excerpt seems consistent with a position that it would be OK to break the law to end filibustering, because it suggests the main issue is whether filibusters ought to be allowed.

We need the filibuster, especially in these times. Without it, we're doomed to mob rule and might makes right style power plays. I prefer my power plays to be more subtle, as in the filibuster. Let's be clear here. Let's not overthink/overanalyze/overdeconstruct this.

The Neocons want to rule... not govern by consent and they are trying to dismantle all of the checks and balances in the Constitution and the Bill of Rights. The filibuster is one of those tools that serve as a check on the party in power.

Look what they are doing right now with the new and improved Patriot Act. This is from Bob Barr's website:

"This expansion of government powers has resulted in a significant groundswell from across the political spectrum - resolutions opposing the Patriot Act have been passed in 367 communities in 43 states including four state-wide resolutions. These communities represent approximately 55.2 million people who oppose sections of the USA Patriot Act."

So in spite of a gound swell of opposition from both the right and the left on a national basis what do they do?...

The GOP leadership holds "secret" meetings, expands its powers and totally ignores the fourth amendment in the Constitution as well as the Bill of Rights.

Like thieves in the night... in secret so the public won't know they are trying to destroy the checks and balances that have kept us a free democratic republic.

Murky, I don't think the two questions can be separated. The Constitution is neutral on filibusters. The nuclear option is based on a constitutional point of order. Rulings on constitutional points of order should be based on what the Constitution says, not some prearranged political contract.

The Republicans know that their constitutional argument is spurious. They also know that Cheney will rule in their favor regardless of what the Constitution says. As Mark says, this level of disregard for the constitution is worrying in an allegedly constitutional republic.

The Republicans could make any constitutional claim against the cloture rule, no matter how crazy, and Cheney would rule in their favor because he's in on the nuclear plot. Frist could say that the cloture rule violates the 345th Amendment, and Cheney would back him up. It's a set up.

Of course, the mechanics of the filibuster are also illegitimate because they can't be executed without breaking the rules.

O.K. I see you're right. I was seizing too hard on the one sentence "If the Constitution allows such filibusters, then the threat of the 'nuclear option' was an illegitimate threat" but his point is that he'd like to see the constitutionality resolved (nuclearly or otherwise) and thinks the compromise suggests that at least some senators don't. I don't think either you or I believe that's a proper inference from the compromise, because everybody knows that constitutionality would not be "resolved" by going nuclear. The compromisers moved to stave off an exceptionally biased decision on the constitutionality of judicial filibustering. Perhaps this is because they care very much whether it's truly constitutional.

Jeez Louise, it's (the filibuster) not "constitutional" it's procedural...or rather, it's extra-constitutional.

To be realistic, for people on the left, there's a stark contrast between what's at stake structurally here and what's at stake politically. The political benefits and dangers are clear in terms of a radical Rightwing series of appointments to the judiciary with no moderating influence at all (it's really just about whether that influence will be there or not--not whether the appointments happen).

The structural point gets lost a lot though, which is that if you reframe the argument that the filibuster is illegitimate in this instance, you can build towards some other significant changes that would make the process of changing things in the United States much easier (for whatever political ends) like reforming the electoral college, eliminating filibusters altogether, and changing the redistricting process, and altering the makeup of the Senate to be more representative.

Let's be real about the use of history here--filibusters used to take a group of 1--then it was one third--now it's 2/5. They're a reason among sevearl as to why things move so slowly in the U.S. (in addition to more important factors like the composition of the Senate, the hideously slow amending procedure et. al.). The system is designed to be slow, and looking back on the Constitution for all the answers is inherently conservative.

All that said, I recognize that what Frist and the Bush Administration are doing is a highly opportunistic move (along the same lines as invoking the human rights argument in Iraq) to further their particular political agenda and has nothing to do with creating a more democratic society. The point, though, is that in arguing with them, there are better ways to do it than to defend the "character of the Senate" or arcane rules or invoking those features of the Constitution that, taken overall, have essentially served to slow down the pace of social change in the U.S.

In other words, the problem with the compromise may ultimately be that the Senate Democrats who participated were more motivated by preserving the Senate's prerogatives and existing nature than a sense of accountability to their constituents. This may or may not serve us well in the short run, but it's hardly a solution.

The filibuster is a knife that cuts both ways. Now that the Dems The Minority (personally I'd rather they acted as the Loyal Opposition) we need the filibuster. It's a fact jack. It's the last card in the deck. Sorry about the mixed metaphors.

It's the last card in the deck

Since history tends not to end, there's not ever a last card. Only different ends and different strategies and tactics for getting there.

So you're saying I need a different metaphor?

I think its almost irrelevant whether or not its constitutional because its not subject to judicial review. There is no judicial body to overturn the nuclear option.

That's because, according to the Constitution, the Senate can make their own rules. I guess that means that they can break them too. But it ought to be noted as such. When you change a rule in the middle of a game, you're really breaking the rules. The Dems should be screaming at the top of their lungs that the GOP are breaking the rules. Why aren't they? It's a simple soundbite and concept to grasp.

"In other words, the problem with the compromise may ultimately be that the Senate Democrats who participated were more motivated by preserving the Senate's prerogatives and existing nature than a sense of accountability to their constituents. This may or may not serve us well in the short run, but it's hardly a solution."

Actually, the founders intended the House to be highly reactive to their constituents and the Senate was designed to actually slow down the process and force compromise and preserve the voice of the minority party. It was conceived that way to, as was the Electoral College, to avoid the "tyranny of the majority" so that the rights of all would be protected, avoid extremist movements, and most importantly avoid civil war.

And yes I can site you chapter and verse from the Federalist Papers, the writings of Hamilton, Jefferson, and Madison to that effect. I've also done that on threads on this site ad nauseum and can do so if you wish. As for me... I always knew that there would be trouble when I found out that they stopped mandatory civics classes about how our government operates and why things exist in it.

The filibuster is but one of many seemingly archane, but essential procedural rules that operate in the Senate that are essential "check and balance" on the party in power. They did know human nature and that "absolute power corrupts absolutely" so this is why all of this bizarre stuff exists. That is why they say cute little things like "liberty and justice for all."

The Electoral College is another one. Each state gets two senators and for good reason. Why should California, the most populated state tell Rhode Island or Texas citizens what laws they can have, or conduct business, or just have a larger voice. If they believed that simple majority rule was a good thing, elections would be winner take all and George Bush wouldn't be President. The population of the blue states is actually larger than the red states and a redesign of the rules would make for... what they feared... civil war as the slavery issue did. By giving every state equal weight in the process they hoped to provide the glue that binds us into a union.

They also knew that they couldn't forsee every possible situation and provided methods to change the rules of operation in the Senate. Unfortunately for the GOP they will have to break about half a dozen of the rules to change the rules. Senator Kennedy's website gave a very accurate breakdown of them.

The Republican Senators who joined in the compromise like McCain and ones who spoke out against the Nuclear Option, like Spector... were the senior Senators who were around when the GOP was in the minority and they knew from experience what it feels like and the danger of the minority lacking a voice.

They also the meaning of "advise and consent" and why the founders didn't just let the President pick the justices and that would be it. They are meant to be a "check and balance" on the Executive branch and not a "rubber stamp." Which is funny because a group of republican and democratic senators just requested a meeting with the President to "advise" him as to future judicial nominees and they were told in so many words to go piss up a rope. All of which has not been reported in our non-existent "free press."

All true Flint, however, I could live without the electorial collage...because, theoretically, now with computers, we really can count evey vote (it's no longer cumbersome.) And we're still only voting for representatives anyway.

Also true... but they could also rig it the way they did in Florida. That NASA programmer did testify before the House that the GOP paid him to write a program to fix the evoting machines if Florida and he has passed a polygraph test now.

Security wise... the internet isn't either. How many banks and major database companies have been hacked in the last 60 days?

Also true. But I'm the type of person who always gets a reciept at the ATM.

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