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View Diary: President Obama endorses filibuster reform (212 comments)

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  •  Protect the interests of the minority n/t (0+ / 0-)

    LG: You know what? You got spunk. MR: Well, Yes... LG: I hate spunk!

    by dinotrac on Thu Oct 28, 2010 at 05:57:51 AM PDT

    [ Parent ]

    •  Really? (0+ / 0-)

      Because the actual history of the filibuster is that it arose by accident, from the elimination of the previous question motion in 1806.

      The previous question motion allowed a simple majority to vote to end debate in the original Senate. But since the original Senators were such gentlemen, they never even dreamed of requiring any sort of supermajority to protect the interests of the minority just to get to a vote -- or even to start debate. They eliminated the motion from the rulebook because it was almost never used.

      The filibuster, it's often claimed, is used to protect the interests of the minority. But that's not the reason it's there.

      Besides, what right has the minority got to prevent something from being debated? From what foundational tenet of American democracy does that arise? It certainly runs counter to everything else the founders ever wrote on the subject.

      The minority already has the right to offer a motion to recommit on every bill, giving them the opportunity to offer the final amendment brought to the floor. Having the last word on every bill? That's pretty good protection if you ask me.

      •  Yes, really. (0+ / 0-)

        As to the reason it's there, that's one of those tomato to-mah-to things.

        Yes, it sprung from elimination of an earlier rule, but was codified with the cloture rule in 1917 -- requiring a 67 vote supermajority.

        Like Ivory soap, the unexpected sometimes turns out to be good and useful.

        LG: You know what? You got spunk. MR: Well, Yes... LG: I hate spunk!

        by dinotrac on Thu Oct 28, 2010 at 06:38:46 AM PDT

        [ Parent ]

        •  Well, let's talk about that. (0+ / 0-)

          Because in 1917 they didn't require a 67 vote supermajority. They required 2/3 of those present and voting, and there were only 47 states in the union at the time. That means there were 94 Senators, which in turn means that cloture could be invoked with as few as 32 Senators -- or 2/3 of a quorum.

          The rules on cloture have been changed several times, the latest major revision coming in 1975, when the threshold was lowered to 3/5, but was counted as 3/5 of Senators "duly chosen and sworn," meaning that even in they were absent, they counted toward the total. That's where the current 60 vote requirement comes from.

          That says to me that there's a lot less tomato/to-mah-to here than you think. In other words, it's not about originalism or any foundational commitment to the "interests of the minority." Now there's something you certainly won't find anywhere in the Constitution, if you're into that sort of argument.

          What's more, the founders were pretty clear about what they thought about the needs of the minority. The "tyranny of the minority" was apparently something they knew a great deal about, having just scrapped the Articles of Confederation for that very reason.

          •  Yes, you're right. (0+ / 0-)

            I should have said a 2/3 supermajority.

            My bad, but the point is correct: the original cloture rule was more stringent than the current rule --- and --- still represented an easing of the rules under which we managed to open up the West (also known as driving the natives from their lands), fight the Civil War, manage 40 acres and a Mule, enact a number of important amendments -- including those that otlawed slavery and brought former slaves into legal equality, etc,etc.

            And -- hmmm! Where did I mention the founders?

            Don't think I did.  As you (and everybody else in the world) correctly point out, the filibuster is not in the Constitution. It is a creation of Senate rules.

            But guess what?
            That's ok.
            The founders intended for the Congress to pass laws, and intended for it to make the rules that govern its behavior.

            So -- it's not like they are circumventing the Constitution. They exercised their Constitutional prerogative to institute rules that served a purpose they found useful.  

            LG: You know what? You got spunk. MR: Well, Yes... LG: I hate spunk!

            by dinotrac on Thu Oct 28, 2010 at 07:17:11 AM PDT

            [ Parent ]

            •  More stringent? (0+ / 0-)

              I don't think that's necessarily the case. Two-thirds of those present and voting isn't always more stringent than three-fifths chosen and sworn.

              No, you didn't mention the founders. But I don't think I have to wait for you to do it in order that I be allowed to.

              What you mentioned was the reason the filibuster exists, which I've said was actually historical accident, and you've said was to protect the interests of the minority.

              That sounded to me like you almost certainly believed that there was some actual and proactive thinking behind its creation. "Protecting the interests of the minority" would be something requiring premeditation of some sort, at least if it's actually a reason for something's existence.

              So whose premeditation was it?

              I haven't said they're circumventing the Constitution, either, speaking of invoking the "who said that?" rule. But I have discussed it elsewhere in the comments, so I'll repeat what I said there. If it's within the Senate's constitutional prerogative to establish rules that permit filibusters, it's within their prerogative to eliminate it. Which calls into question just how serious a tenet the "protection of the interests of the minority" really is, if it's something that can be gotten around so easily.

              Now, on a slightly different point, although the Constitution reserves for each house the right to adopt its own rules of procedure, the question of whether or not the Constitution permits the entrenchment of those rules, allowing past Senates to bind future ones, is very different.

              One of the arguments of those who believe the filibuster is unconstitutional is that the ancient prohibition against legislative entrenchment means that the combination of Rule XXII (cloture) and Rule V (continuance of the rules) creates a paradox that's incompatible with Article I, Section 5 (the right of each house to adopt rules of procedure). The practical effect of the paradox right now is that 98 out of the 100 current Senators have never had an opportunity to vote on whether or not they wish to continue the operation of what's become the single most important and restrictive rule the body has.

              In other words, their question is, if each house has the constitutional right to adopt its own rules of procedure, why is the 111th Senate forced to operate under the cloture rules of the 94th Senate?

              •  Strange argument when you consider that the (0+ / 0-)

                rules around filibuster have been changed at least twice -- once in 1917 to codify them, and once in 1975 to change them to the 60 of the duly sworn.

                However arcane the procedures may be, sounds like the Senate, if it really wanted to, could change the rule.

                So far, it hasn't really wanted to.

                LG: You know what? You got spunk. MR: Well, Yes... LG: I hate spunk!

                by dinotrac on Thu Oct 28, 2010 at 08:16:25 AM PDT

                [ Parent ]

                •  Is it such a strange argument? (0+ / 0-)

                  It's actually the foundation for the argument that underlay both of those historical changes, and some in between.

                  The reason they were able to make those changes is precisely because the Senate recognized the inherent paradox, and reform proponents were able to use that to force opponents to accept changes as an alternative to leveraging the logical extension of that recognition to eliminate the filibuster entirely.

                  They didn't change the rules because everyone came to the realization that they really, really wanted to work together. They changed the rules because pointing out the paradox enabled reformers to force a choice between that paradox erasing the filibuster, or adopting instead the genteel fiction that they were adopting changes under the existing, entrenched rules. In exchange for opponents agreeing to change their votes on reform, proponents agreed to waive their right to ending debate with a simple majority vote. That's how those changes were implemented.

                  The problem entrenchment presents, however, is that it creates this additional, artificial and troublesome layer to a procedure that's supposed to belong to the Senate to exercise as a matter of constitutional right. If you examine the full history of cloture reform, you'll see that it often took decades not just to get the votes needed to make the change, but just to refine the parliamentary procedure to the point where the request was properly put to the chair so that reform proponents could leverage what's supposed to be their constitutional right.

                  That's a pretty difficult position to have to defend. That it should take the Senate twenty years of trying just to figure out its own convoluted procedure for making a rules change?

                  •  Difficult and slow does not equal impossible or (0+ / 0-)

                    unconstitutional.

                    The founders weren't opposed to the idea that some things shouldn't happen in a hurry.

                    Constitutional amendments requires a 2/3 majority in Congress (OK -- you could gather up a constitutional convention and bypass Congress, but you'd still need 2/3 of that) and then ratification by 3//4 of the state legislatures.

                    Sounds hard and slow to me.

                    Even judicial appointments -- federal judges serving for life -- could be viewed as one Senate (they confirm) imposing its will on subsequent Senates who can't remove the judges to install their own favorites.

                    And, of course, the Senate is designed to be the "go slow" body, less subject to the whims of public sentiment than the House.  They serve longer terms than even the President, and weren't even directly elected until the 20th century.

                    So, I guess I'm not impressed by "It's too hard and takes too long".

                    LG: You know what? You got spunk. MR: Well, Yes... LG: I hate spunk!

                    by dinotrac on Thu Oct 28, 2010 at 09:12:56 AM PDT

                    [ Parent ]

                    •  Well, I don't actually say it's unconsitutional. (0+ / 0-)

                      Constitutional amendments do require a 2/3 majority in Congress.

                      Tell us why.

                      And yes, the Senate is said to be designed to be the "go slow" body. (Though the filibuster takes the "go" part out of it.) Tell us how.

                      You begin to, by mentioning that the terms are longer, and by mentioning that Senators once were not directly elected.

                      But all the things you mention in support of your argument are explicitly laid out in the Constitution. Yet the end part of your argument is that there's constitutional support for this latter day invention that was somehow overlooked by the founders, then wisely "added" by accident later on, which led to the invention of a process of obstruction not actually discovered for another 40 years, at minimum.

                      It's really not all that hard to find out what the founders really thought about the minority veto. Hamilton was pretty explicit about it. It was the reason he advocated abandoning the Articles of Confederation and adopting the Constitution.

                      So, I guess I'm not impressed by "well, it's sort of in the Constitution," when in fact eliminating the minority veto from Congress was the chief purpose of adopting the Constitution.

                      •  Chief purpose of the Constitution? (0+ / 0-)

                        Wow. Learn something new every day.

                        And there I was thinking the weakness of the central government and difficulty of collecting revenue played a role.

                        LG: You know what? You got spunk. MR: Well, Yes... LG: I hate spunk!

                        by dinotrac on Thu Oct 28, 2010 at 10:44:30 AM PDT

                        [ Parent ]

                        •  Well, happy birthday. (0+ / 0-)

                          You never bothered to ask why the Articles of Confederation produced a weak central government that couldn't collect revenue?

                          Really?

                          Because it's pretty well universally understood that those failures stemmed not only from the poor design of the Articles' framework, but from the requirement for a supermajority (in fact, unanimity) in order to adopt any changes to them in order to address its deficiencies. It's what led Hamilton to write in Federalist 22:

                          To give a minority a negative upon the majority (which is always the case where more than a majority is requisite to a decision) is in its tendency to subject the sense of the greater number to that of the lesser number. Congress from the non-attendance of a few States have been frequently in the situation of a Polish Diet, where a single veto has been sufficient to put a stop to all their movements. A sixtieth part of the Union, which is about the proportion of Delaware and Rhode-Island, has several times been able to oppose an intire bar to its operations. This is one of those refinements which in practice has an effect, the reverse of what is expected from it in theory. The necessity of unanimity in public bodies, or of something approaching towards it, has been founded upon a supposition that it would contribute to security. But its real operation is to embarrass the administration, to destroy the energy of government, and to substitute the pleasure, caprice or artifices of an insignificant, turbulent or corrupt junto, to the regular deliberations and decisions of a respectable majority.

                          And more succinctly:

                          It is often, by the impracticability of obtaining the concurrence of the necessary number of votes, kept in a state of inaction. Its situation must always savour of weakness--sometimes border upon anarchy.

                          It was why they abandoned the Articles.

                          •  Yes. Unanimity. (0+ / 0-)

                            I suppose it could be characterized as a supermajority run wild, but, given the amendment procedure, it can't be said that the founders were completely opposed to the idea.

                            For that matter, I wonder if Bill Clinton (not to mention Andrew Johnson) might not have been thankful for the 2/3 supermajority required to convict an impeached President?

                            The big issue with the filibuster is that it has become routine, in part because the mere whisper of "filibuster" has the same effect these days.

                            LG: You know what? You got spunk. MR: Well, Yes... LG: I hate spunk!

                            by dinotrac on Thu Oct 28, 2010 at 01:05:28 PM PDT

                            [ Parent ]

                          •  Yes. Unanimity, or... (1+ / 0-)
                            Recommended by:
                            dinotrac

                            The necessity of unanimity in public bodies, or of something approaching towards it...

                            You left that part of Hamilton's writing out.

                            You wonder if Bill Clinton might not have been thankful for the 2/3 supermajority required to convict an impeached president?

                            That's your offer here? Seriously? Yet another exception explicitly enumerated in the plain text of the Constitution? Really?

                            Yes, the big issue with the filibuster is that it has become routine. That's actually kind of why people are proposing reforming it. So that it's harder to do than just whisper about.

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