Senate Side of the US Capitol - Spring 2011 Washington DC Photo by kempsternyc(DK ID) email: folmarkemp@gmail.com

It should come as no surprise to you that I've got some disagreements with the way Richard Arenberg, co-author of Defending the Filibuster, characterizes some of the history and issues surrounding the current filibuster reform debate. He's been very prolific of late, and I'd like to address some of the objections he raises.

In his Nov. 14 opinion column printed in the Washington Post, Arenberg begins in typical fashion:

Majority Leader Harry Reid, frustrated by abuse of the filibuster, has vowed to change the Senate’s rule on the first day of the new Congress.

If he chooses to invoke the “constitutional option” — the assertion that the Senate can, on the first day of a session, change its rules by a majority vote — he will be heading down a slippery slope that the current president of the Senate, Vice President Biden, once excoriated as an abuse of power by a majority party.

An invocation of the "slippery slope" argument, right out of the gate. It's one of the most common objections of the scholarly class, but how slippery is the slope? And are all slopes slippery by themselves, or can one side or the other apply some grease in the process? And what, exactly, is the slope?

Consider that filibuster reformers have been leveraging the "constitutional option" to greater or lesser effect for going on 95 years, beginning in 1917, when Sen. Thomas J. Walsh (D-MT) first suggested that the Senate ought not to bind itself by rules adopted by previous incarnations of the Senate, and his argument in favor of that proposition and to establish the Senate's first cloture rule won the day. That rule required two-thirds of senators present and voting to invoke cloture. Today, the rule requires three-fifths of senators chosen and sworn to end debate on routine business, and the same two-thirds of those present and voting to end debate on a rules change. Over the course of its 95-year history, then, just how slippery would you say that slope has been?

Consider further that the constitutional option has been proposed as the basis for filibuster reform several times since then, including fights in 1953, 1957, 1959, 1961, 1963, 1967, 1969, 1971, 1975 and 1979. And through it all, the Senate has proceeded cautiously and deliberately whenever the prospect has been raised, agreeing to incremental reforms along the way. But still today, the rule remains that three-fifths are required for cloture in routine matters, and two-thirds for rules changes. This does not sound like a particularly slippery slope to me.

Lastly—at least on this point—consider that Senate Majority Leader Harry Reid (D-NV) led the body through an exercise almost identical to that being proposed today on Oct. 6, 2011, establishing a precedent ruling motions to suspend the rules to consider non-germane amendments once cloture has been invoked to be dilatory and therefore out of order. The precedent, sustained by a simple majority vote of the Senate, is more than a year old, and yet the Senate remains the Senate, having at least thus far never "become the House," as reform opponents (including Arenberg) frequently fret will be the case.

Before I break off from this first installment in the catalog of critiques I have about Arenberg's articles, I need to address his second assertion, that while serving in the Senate during the 2005 nuclear option fight, Vice President Biden once "excoriated" the use of the procedure "as an abuse of power by a majority party." There is little doubt that he did just that. As several other writers have pointed out by now, there are plenty of statements from advocates on both sides that I suspect the speakers would like to have back, or more likely, would like to differentiate from the statements they're making these days.

But more interesting to me than the 2005 Biden position remarked on by Arenberg is the 1975 Biden position Arenberg says nothing about. Joe Biden, of course, was a Senator during the successful fight to amend the cloture rule in that year, lowering the vote threshold for routine matters to today's three-fifths of senators duly elected and sworn. The change, as you're likely aware after the protracted debate on reform, was leveraged by the credible threat of the constitutional option, a threat made real by three Senate procedural votes effectively ratifying the procedure as available, legitimate, and having the approval of a majority of the Senate. Joe Biden voted with the majority to validate and utilize the constitutional option on the second and third votes in that series.

Whether Arenberg remembers that or not, I'm unsure. But I thought you'd like to know.

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Originally posted to David Waldman on Wed Dec 12, 2012 at 11:14 AM PST.

Also republished by Daily Kos.

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