With all this talk about a filibuster-proof majority, a lot of things get forgotten. First of all, it is only filibuster-proof if all Democrats are unified at all times and on all issues. And Republicans almost always are, which gives them the advantage, even with much smaller numbers.

But the Democrats will not always be in the majority, people say. Fair enough. But when have the Democrats used the filibuster? The answer: not often. Democratic cowardice has been far outweighed in recent history by Republican obstruction.

Had it not been for the filibuster I would be living large on ClintonCare right now, instead of hoping I never get sick. There are not that many things that would be worse if the filibuster had not existed during the recent years of Republican dominance. (There is the exception of ANWR, although there were other possible ways of preventing that as well).

I will detail several methods below.

Conservatives have always been better at 'standing athwart history, yelling stop' than liberals have. One of the few times Democrats have managed to hold together was over a handful of judicial nominees in 2005. Having rolled over on nearly 300 judges, they only wanted to stop the 10 worst. Thanks to Democratic collusion in the Gang of 14, we still managed to be stuck with 7 out of the 10 (including among other things a woman who believes that the

1937 court decisions upholding minimum-wage laws and New Deal programs marked "the triumph of our own socialist revolution", the culmination of "a particularly skewed view of human nature" that could be "traced from the Enlightenment, through the Terror, to Marx and Engels, to the Revolutions of 1917 and 1937.

And of course, the Democratic majority were still confirming Bush judges as late as this summer.

The filibuster does not exist in the Constitution; it is simply a parliamentary procedure. It existed in the US House until the 1840s, and required unanimity until 1917, when a 2/3 requirement was set by a Democratic Senate. In 1975, a Democratic Senate decreased it to the current 3/5ths. There is no reason not to decrease it further to 55 votes or eliminate it altogether.

Of course, the question remains, how to do it? Wouldn't it a motion to change Senate rules itself be subject to a filibuster? Not necessarily. Here is a passage from Robert Caro's biography of Lyndon Johnson, "Master of the Senate."

It had been therefore agreed that as soon as   [Senator Anderson (D-NM)] made his motion, [Senator Paul Douglas (D-IL)] and other liberals would ask Nixon [presiding over the Senate as Vice President] to rule on whether it was in order-on whether in other words, the adoption of the new rule was permissible.<line>

And Douglas would also ask Nixon, "Under what rules is the Senate presently proceeding?" Nixon would rule that the motion was in order, because it would be in order under normal parliamentary rules- and he would rule further that the Senate was at the moment proceeding under standard parliamentary rules because it was not a continuing body but a new Senate that had not adopted any rules of its own.

Standard parliamentary rules require only a simple majority for all business. In this case it failed because then-Majority Leader Lyndon Johnson was recognized first (a prerogative of the Leader) and tabled the motion.
Another way to amend is seen here

The Senate is normally very reluctant to change its rules.  Any proposal to do so is debatable, and therefore open to being filibustered.  To ensure that any change in the rules has widespread support, Senate rules specify that to invoke cloture and cut off debate on a proposal to change a Senate rule, not just 60 votes are needed, but 67.


If the Republicans introduced a proposal to change the rules so that only 51 votes would be needed to end a filibuster of a judicial nomination, the Democrats would likely filibuster that proposal.  The nuclear option would ensue if a Republican were then to raise a parliamentary objection, claiming that filibusters against judicial nominations are unconstitutional.  If the presiding officer ruled in favor of the objection, the Democrats would probably appeal that decision.  However, it would only take a majority vote to sustain the presiding officer’s ruling.  

This is basically what occurred in 1975, when the cloture requirements were reduced in a compromise to the current 3/5ths. As a condition of the compomise however, the actual ruling was reversed

Now obviously, this requires a majority of the Senate and a dedicated administration.

Let's assume the Gang of 14 all vote the same way. Let's assume that the rest of the caucus votes for this measure (not necessarily the best assumption, I know). The Democrats totaled 45 in 2005. Subtract 7 for a starting base of 38. 6 Democrats were elected in 2006 and 7 have been elected so far this year (with 2 pending). That comes to 51. Even with only 12 of the 13 new Senators in support, a VP Biden could still break the tie.

I believe that if liberals push for abolition, moving the Overton Window, perhaps centrists will compromise on 55 votes (although there are only 4 of the 7 original Republican gangsters left). This is perhaps the best solution, so a reasonably strong majority can get things accomplished, but a bare majority will have a harder time.

Originally posted to bay of arizona on Mon Dec 01, 2008 at 10:33 AM PST.


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