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Disclosure: I'm doing paid work on filibuster reform in the Senate for ProgressiveCongress.org, supported in part by CREDO Action and Blue America. We need your help to continue this work, and you can do it at no cost to you by signing CREDO Action's petition. Or hell, let it cost you something and go donate at Blue America's ActBlue page.

The launch of the Daily Kos Senate rules reform petition has raised a key question. What, exactly, are we asking for in this filibuster reform campaign?

Well, there are three things -- broadly speaking -- that need to happen in order to see rules reform implemented in the 112th Congress. First, we need for Senators to uphold their right to adopt new rules by a simple majority. Can that be done? Sure. Absolutely. It's not the adoption of a new rule that requires a 2/3 vote, as many have come to believe. That can and always has been done by a simple majority. What requires a 2/3 vote is invoking cloture on a rules change. But adopting the rule itself by simple majority vote? No problem. That's the actual, existing threshold. Because it is by default the actual, existing threshold for every substantive vote in the Senate. So in that sense, there's really nothing about this that has to happen, per se. It's already the rule. Yet we still find that the cloture issue and the actual adoption of new rules are so often conflated, it becomes a "task" in itself to remind everyone what the ground rules really are.

The second part is where it gets tough, but it's also where you can be of the most help. At this point, we'll need the Senators to uphold their right to end debate with a simple majority vote. Can that be done? Yes it can.

Now, this part worries a lot of people. They favor filibuster reform of some kind, but they aren't necessarily sure they want to see it eliminated entirely. So they worry that if the Senate asserts its right to end debate by a simple majority vote, that ends the question for ever after, and the filibuster has been eliminated.

But that ignores an important detail of the procedure that's sometimes described as the "constitutional option," which is that at the beginning of a new Congress, before any routine business is conducted, the Senate has the option of agreeing to proceed under the old rules, or instead moving to consider them anew. What that means is that the Senate is at that point operating outside of the rules, and closing debate by majority vote at that point does not by itself determine the Senate's cloture rules going forward. The Senate will not yet, at that point, have considered any actual proposed rules change. It will simply have voted to end debate on the proposed prospective change (or the motion to proceed to consideration of that change). There still has to be a vote on whether or not to adopt some proposed change, and that's a very different question. In fact, it's the third of the things that have to happen that I mentioned at the top.

What that change should be is still the subject of some debate, both among interested activists, and most assuredly among Senators themselves. And you can be sure that when it comes to the rules, the serious discussion and real decision making is happening Senator-to-Senator. Not here on the blogs, not on the op-ed pages, and not even among top Hill staffers. What we might want to see as the final product of rules reform ultimately doesn't really matter that much. Senators will regard this as something they'll have to work out for themselves.

But whatever you might think is the best and wisest reform, none of it happens without first acknowledging the Senate's right to determine its own rules of procedure at the beginning of a new Congress by majority vote. What new rules Senators might choose to adopt in place of the old is up to them, and it may well be that they ultimately find themselves unready to accept pure majority rule in all instances as the everyday standard in the Senate. But that's a decision they must first assert their right to make, and it starts by acknowledging that the Constitution confers that right free from the obstruction or binding of previous and defunct Senates.

So, to review:

  1. A majority of Senators insist on their right (and back it up with their votes) to consider rules changes and bring them to an actual vote by ending debate.
  2. Determine what those changes -- including any new rules about cloture -- will actually be for the rest of the session.
  3. Adopt those changes by majority vote.

There's nothing at all inconsistent about advocating for majority cloture on a new Senate's motion to consider new rules and advocating for some different cloture standard to be adopted going forward. And truthfully, Senators are going to be a lot less open to public pressure on what procedural rules they should agree to operate under in their daily work than they're likely to be to public pressure to stop pretending they don't have the power to adopt the reforms of their choice. That means that our role as activists is to let them know that we know that they have the power to respond to our demands that some reform be made. And the clearer we are about that, the better the chances they'll exercise that power.

What they do with it, though, is up to them. We can beg, plead and cajole, of course. We can tell them what we think might work best. But the decision is theirs to make. That's the power we've given them under the Constitution. We just need to let them know that the cat's out of the bag on rules changes, and that with a clear path available to them, they'll be accountable for the decision to adopt reform or turn their backs on it.

But remember, no matter what you may think is the most pragmatic, the most moderate, or the most level-headed reform, there's nothing pragmatic, moderate or level-headed about it if you don't acknowledge that step one in the process is agreeing -- even if only for one day every two years -- that the Senate has the right to hold a vote to implement that reform. Because there's nothing pragmatic, moderate or level-headed about fantasy.

That's why the Daily Kos petition on Senate rules reform reads so simply:

We need you to agree that the Senate can, and should, change its rules with a simple majority vote on the first day it is in session in 2011.

Originally posted to Daily Kos on Fri Sep 03, 2010 at 05:30 PM PDT.

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Comment Preferences

  •  here's hoping the senate makes the change. (6+ / 0-)

    David, please keep up the good work!

    Our opponent is an alien starship packed with atomic bombs. We have a protractor. -- Fraa Erasmus, Anathem

    by bubbanomics on Fri Sep 03, 2010 at 05:34:27 PM PDT

  •  And again, I must oppose this. (1+ / 0-)
    Recommended by:
    ashowboat

    and I am calling Senators urging them NOT to do this.

    Arsonists against Mosques are the Al-Qeda branch of the American Taliban.

    by Walt starr on Fri Sep 03, 2010 at 05:35:14 PM PDT

    •  What is it you don't like? (0+ / 0-)

      I was going to say something flippant but as I read through this there was something about this that seemed...

      I know nothing about the nuts and bolts of this like Waldman, who has a seeming mastery of the topic - or you, I suppose - but even though it would seem to benefit Dems currently, it seems like changing such a huge thing as the filibuster so relatively easily...something seem not right about that.

      it's as intelligent a question as I can muster so - elaborate on your objections...please.

      Spray tons of carcinogens into the ocean to hide petroleum spewed from a hastily-drilled hole from a greedy corporation, but don't smoke pot.

      by xxdr zombiexx on Fri Sep 03, 2010 at 05:42:09 PM PDT

      [ Parent ]

    •  What is "this?" (1+ / 0-)
      Recommended by:
      Simplify

      You're going to call Senators and urge them you don't approve of Article I, Section 5?

      Or are you complaining about some "this" which isn't actually being described or advocated in this piece?

  •  but are you a member of the "professional left"? (0+ / 0-)

    Disclosure: I'm doing paid work on filibuster reform in the Senate for ProgressiveCongress.org, supported in part by CREDO Action and Blue America. We need your help to continue this work, and you can do it at no cost to you by signing CREDO Action's petition. Or hell, let it cost you something and go donate at Blue America's ActBlue page.

    BTW, petition signed:

    We need you to agree that the Senate can, and should, change its rules with a simple majority vote on the first day it is in session in 2011.

    ..."sealed and delivered" is up to the GOTV effort

    "...calling for a 5" deck gun is not parody. Not by a long shot." (gnaborretni)

    by annieli on Fri Sep 03, 2010 at 05:42:36 PM PDT

  •  They enjoy their club too much (3+ / 0-)

    Most of them would rather preserve "comity" over democracy.  You can see it in the contempt they have for anything that would make them become any more like the House.

    Kill the filibuster! Abolish the Senate!

    by sproingie on Fri Sep 03, 2010 at 05:42:47 PM PDT

  •  The fillibuster rule will change (3+ / 0-)
    Recommended by:
    ashowboat, tari, Eric Nelson

    the minute Republicans are in the majority.

  •  get rid of filibuster for GOP Senate (1+ / 0-)
    Recommended by:
    Wisdumb

    what a great idea - progressives rock again
    well, just saying, we may lose House and Senate when you look at the current numbers

  •  I think they should be able to keep a filibuster (4+ / 0-)
    Recommended by:
    Simplify, ashowboat, laker, Eric Nelson

    but make if physically difficult such as a certain number of Senators on the floor at the same time, for a minimum amount of time. In other words, they have to go for hours or days without leaving the Senate building.

    This would preserve the ability to filibuster a future Republican majority from voting in favor of invading Venezuela, but would destroy the lame, phone-it-in filibuster that allows the Thugs to thwart all meaningful legislation.

    •  Job 1 of the next Republican Senate will be to (2+ / 0-)
      Recommended by:
      laker, Eric Nelson

      eliminate the filibuster.

      "The beatings will continue until morale improves" - a foolproof election strategy

      by bay of arizona on Fri Sep 03, 2010 at 05:58:13 PM PDT

      [ Parent ]

      •  That is exactly right 2005/ Sen.Frist a threat (1+ / 0-)
        Recommended by:
        Scientician

        that worked for all intents and purposes for the Gop

        Gang of 14. The Republicans wouldn't bat an eye. They will Nuke the Senate rules to win.

        The tired warning: "But if the Gop take the majority then Democrats will wish they still had the filibuster power" - is just an excuse imo.

        It's false protection.

        A rule obeyed by only one side of the aisle works for only one side of the aisle - the Gop - unless Democrats toughen up big time.

        I don't want your country back..I want my country forward - Bill Maher

        by Eric Nelson on Fri Sep 03, 2010 at 07:42:44 PM PDT

        [ Parent ]

    •  This may very well be what happens. (2+ / 0-)
      Recommended by:
      Scientician, Eric Nelson

      We can't say for sure where Senators would come down if they gave themselves the opportunity to decide on some new rules.

      We can only say that it won't matter where Senators would come down if they don't.

    •  EXACTLY what I was thinking crankyinNYC! (1+ / 0-)
      Recommended by:
      crankyinNYC

      You want to filibuster? Go right ahead. But you have to bring out the cots, order up the pizzas, and start reading from the phonebook. None of this "Filibuster...now excuse me, I have to tee off in half an hour" horse shit.

      Personally, if I was a Senator, I would read the lyric sheets of my Slayer & Mercyful Fate albums while filibustering, but that's a discussion for another day. At the very least, it would make for interesting C-Span viewing. :)

      A village can not reorganize village life to suit the village idiot.

      by METAL TREK on Fri Sep 03, 2010 at 10:52:33 PM PDT

      [ Parent ]

  •  We need to also make sure Lieberman (1+ / 0-)
    Recommended by:
    Missys Brother

    and probably Baucus are removed from their chairmanships.

    Holy Joe would love to give bipartisan cover to the millions of subpoenas the House will be issuing.

    "The beatings will continue until morale improves" - a foolproof election strategy

    by bay of arizona on Fri Sep 03, 2010 at 05:56:36 PM PDT

  •  Don't agree Senate rules trump Constitution (4+ / 0-)
    Recommended by:
    tle, Simplify, zedaker, laker
    Constitution is clear. Marjority rule is the rule for House and Senate business.  Neither house of Congress can over ride the Constitution. Constitutional provision that House and Senate set their own rules does not trump the requirement that majority rule is the rule for business conducted in both houses.

    I've signed Kos's position but all the rules have been created to make Congress less democratic and purposely dysfunctional with the result US policy does not address US problems.

    •  i think you're right, but (0+ / 0-)

      i recall no provision in the constitution with which to enforce the constitutionality of their rules. neither the courts, nor the president, nor the other house has any authority to to so. i suppose the USSC could make a judicial finding but i can't see how it would be binding or enforceable, therefore it would merely be advisory at best.

      "Liberalism is trust of the people, tempered by prudence; conservatism, distrust of people, tempered by fear." Gladstone, Me -8.88/-7.08

      by zedaker on Fri Sep 03, 2010 at 06:11:10 PM PDT

      [ Parent ]

  •  I would be more supportive (0+ / 0-)

    Of a change to Senate rules if there had actually been any fillibusters this year.  If the Democratic Senate leadership had actually had the backbone to get the GOP go to use a fillibuster there might be more support of change. The Senate leadership allowed this country to be hijacked by a minority that has now successfully made this election about what the Dems haven't done and not about what the GOP kept them from doing.

    This seems a little like closing the barn door after the legislation was left on the leaders desk.

  •  Great idea but given the likely results of (1+ / 0-)
    Recommended by:
    MakeChessNotWar

    this year's elections, ain't in our interest to do it.

    Current fiibuster rules may be the only things that saves Obama from removal from office and the country from the whacked out rethug schemes.

    Beware the man of one book.... ... or "cave ab homine unius libri"... (Cicero)

    by shigeru on Fri Sep 03, 2010 at 06:02:47 PM PDT

  •  What happens whe the Dems are no longer in charge (0+ / 0-)

    and we can't filibuster anything?

  •  Does it make sense to wait and see... (0+ / 0-)

    if we hold on to the House before this happens?  :)

    I'm gonna go eat a steak. And fuck my wife. And pray to GOD - hatemailapalooza, 052210

    by punditician on Fri Sep 03, 2010 at 06:18:17 PM PDT

  •  The filibuster is all that stands between us (0+ / 0-)

    and the tyranny of corporate rule. It is our lifeline and must be preserved at all costs. Some minor modifications might be acceptable, but the tyranny of majority rule must never be allowed. It is unAmeican.

    Is it not written "There's a lot goes on we don't get told."? (Lu Tze)

    by MakeChessNotWar on Fri Sep 03, 2010 at 06:22:56 PM PDT

    •  It really hasn't ever been. (2+ / 0-)
      Recommended by:
      Scientician, Eric Nelson

      Dems just don't really use it that way.

      But also, at the moment, they have this thing called the executive branch to use for this purpose. If they'd like to use that, the option is open.

    •  When (0+ / 0-)

      Has it ever stopped a single corporatist bill?

      And 36 states don't have the filibuster.  are they unamerican?

      •  Dems used it widely (0+ / 0-)

        From wiipedia:

        The Democrats had been using the filibuster to prevent the confirmation of conservative appellate court candidates nominated by President George W. Bush. In the Republican-controlled 108th Congress, ten Bush judicial nominees had been filibustered by the minority Democrats. The ten Bush appellate nominees who were filibustered were Miguel Estrada, Priscilla Owen, Charles W. Pickering, Carolyn Kuhl, David W. McKeague, Henry Saad, Richard Allen Griffin, William H. Pryor, William Gerry Myers III and Janice Rogers Brown.

        If we hadn't used these the corporatist agenda would have had a field day in the courts.

        Then it was GOP who wanted to get rid of it.

        The original filibuster was one of the great checks and balances of our system, and we need to preserve it.

        Is it not written "There's a lot goes on we don't get told."? (Lu Tze)

        by MakeChessNotWar on Fri Sep 03, 2010 at 08:34:28 PM PDT

        [ Parent ]

        •  aoei (1+ / 0-)
          Recommended by:
          chaboard

          Ultimately 5 of those people were confirmed.  The primary reason being that the Republicans threatened to use the "nuclear option" to get rid of the filibuster on 51 votes, so the Democrats in the Gang of 14 caved completely and gave the republicans all the nominees (the others had withdrawn).

          No further nominees of Bush's were filibustered.

          So 6 years of Bush and a Republican congress and all the filibuster stopped was 5 subordinate court Judges.  Against that, in the current congress it shaved over $100B off the stimulus, killed the public option, killed the winddown bank fund, and may yet result in the tax cuts for the rich being extended or made permanent, including the now 0 estate tax.

          Oh, also, the Federal courts have record vacancies because abuse of the filibuster means Obama's nominees are not being confirmed.  

          Ultimately though, I have to ask, what real protection is a rule that can be undone by majority vote?  If Social Security is ever on the actual chopping block and the only thing saving it is a Democratic Senate filibuster, do you really think the GOP will let that stop them?  

          •  The point is that undoing it is (0+ / 0-)

            a "nuclear option'. Even the GOP is wary of going there.

            The filibuster used to require effort. Now it is too easy. Make people stay up all night. The filibuster used to work fine. Just restore the traditional rules.

            Whoever dumps the filibuster will pay a huge price when they are in the minority.

            The GOP has trashed our entire system of government with their obstructionism. If we are in the minority next year we mus pay them back big-time. No more "high road" crap. World Wrestling Federation rules apply. Break out the chairs and brass knuckles and teach them we can get down and dirty, too.

            Is it not written "There's a lot goes on we don't get told."? (Lu Tze)

            by MakeChessNotWar on Sat Sep 04, 2010 at 06:33:04 PM PDT

            [ Parent ]

    •  What On Earth Are You Taling About? (0+ / 0-)

      When has the filibuster EVER actually been used to stand between us and "the tyranny of corporate rule"?  Lately it's one of the primary tools our corporate masters are using to keep themselves in charge!

  •  Thank you for taking this out of the weeds. (2+ / 0-)
    Recommended by:
    wsexson, Eric Nelson

    This is a really vital issue!

    We cannot let Blue Dogs hide in villain rotation anymore! It yielded up weak soup in the form of HCR and FR, and this sham veil of anti-Democratic procedure has gone on long enough.

    The country cannot take it much longer. The nation needs leadership and authority. But, most of all, the nation needs real reforms.

    ...'06, '08, and ...'10? 'It was a trifecta of the peoples' outrage against Republicanism!'

    by ezdidit on Fri Sep 03, 2010 at 06:26:21 PM PDT

  •  Thanks for working on this. (1+ / 0-)
    Recommended by:
    Eric Nelson
  •  i think in general (0+ / 0-)

    that the filibuster should be kept, but that the cloture requirement should be somewhere around 52-53 and/or as someone else mentioned make the requirements entail a real physical filibuster... cots, urine bags,  the whole thing.

    as to the question of IF they're allowed to do it, there is some grey area there, but the fact that customary practice has dictated that the congressional bodies are reconstituted anew every 2 yrs (the constitutional election intervals suggest that the framers did NOT intend for either house to go through this kind of eternal re-incarnation cycle. rather they suggest that the framers intended the houses themselves endure... to be continual), and that rules are adopted at that time pretty much says that it's not only allowed but usual and customary, whether or not it's constitutional as ShirleyG points out. the problem there is that no body is empowered to force a house's internal rules to match the constitution.

    "Liberalism is trust of the people, tempered by prudence; conservatism, distrust of people, tempered by fear." Gladstone, Me -8.88/-7.08

    by zedaker on Fri Sep 03, 2010 at 06:37:09 PM PDT

  •  rules change of 1975 (1+ / 0-)
    Recommended by:
    laker

    I remember reading in a Paul Krugman ed. that the rules where changed in 1975 for cloture.
    Before that someone on the filibuster side had to stand and read something in the senate chambers for hours or days to make it happen.
    Seems to me that along with making at least 10 senators on their side sit and listen would be all that's needed.
    That way the press could report " Oh here's Republican or Democrat senator so and so reading the phone book for two days just to oppose a bill that makes sense " and they'd miss their tee time, or hooker appointment.
    That's why there where so few filibusters in the ole days.

    •  Of course in modern times... (0+ / 0-)

      ...with the Internet and all, the politicians could just read from blog comment postings on the topic. They would never run out of material that was actually on-topic so it wouldn't look quite as ridiculous on the evening news (is there still an "evening news"?). They would just preface their speech with "I want to share with you what the American people are saying".

  •  I'm cautiously optimistic about (1+ / 0-)
    Recommended by:
    Eric Nelson

    your reform as stated. I don't support completely dropping filibuster, but this seems good. Consider me on board.

    If you could watch yourself in action, would you be proud? I love everyone from a distance. A huge, huge, vast reaches of space, distance.

    by Ruemara on Fri Sep 03, 2010 at 08:07:34 PM PDT

  •  "Reform"? [sic] (0+ / 0-)

    First and foremost, we have not had a filibuster in place in many years.  We cannot have "filibuster reform" without first having a filibuster.

    A filibuster occurs when one or more Senators continues to debate an item on the agenda.  The Senator who is talking is permitted to leave the floor once per hour to go to the bathroom.

    The most famous productive filibuster is fictitious.  In "Mr. Smith Goes to Washington", Jimmy Stewart launches a filibuster on some highly principled, Frank Capra kind of crusade.  Eventually, the filibuster catches the imagination of the American people, who start to send in telegrams in support of Mr. Smith's position.

    The one I remember best is Strom Thurmond fighting the Civil Rights Act.  The longer he talked, the more non-Southerners saw Thurmond and his supporters as racist know-nothings.  In some ways, Thurmond's filibuster helped the bills along.

    What we have now is the announcement by the minority leader that they (the minority) do not give unanimous consent to whatever is proposed to be brought before the Senate.

    Indeed, enforcing actual filibusters might well humiliate Republicans because the Democratic majority might force them to be seen for what they are, obstructionist.  To watch some ignoramus Republican reading the phone book on the floor of the Senate would certainly give support to the Democratic assertion that Republicans are the party of "No".

    There cannot be filibuster reform when there is no filibuster.  Bring it back.  Could a few Democrats develop some spine?

    •  A filibuster occurs when... (0+ / 0-)

      debate can't be closed on a pending measure, thus preventing a vote from being taken on it.

      That's still a problem, regardless of how and by what methods the vote is prevented.

      So that's what we're aiming at. True, filibusters have changed in terms of how they manifest themselves. But manifest themselves they do.

      Further, bringing back the old-fashioned filibuster requires rules changes. So you'd have to go down the path I just described, anyway.

      •  Rule change? (0+ / 0-)

        My understanding of the situation was that the rules had not been changed at all from the era of the "real" filibusters.  The explanation offered on the various news shows has been that the implementation has changed, not the rule itself.  The difference is that the Senate no longer forces the person to debate in reality, to stand on the floor and talk.  Instead, the Senate now accedes to the threat to do so, which is where I was coming from in my original post.

        •  Well, that's not right. (0+ / 0-)

          No surprise that the TV news didn't have the time or interest to fully explain it.

          The "two track" system is the change that's mostly responsible for the current state of the filibuster. But the other change, though not part of the rules, is the fact that the filibuster is no longer the protest of a single Senator (or a handful) who are willing to throw themselves on the tracks because of a deeply-held opposition to a measure. It's now a cooperative effort of the entire Republican Conference, and exercised routinely, even on measures that eventually pass unanimously.
          Here's a run-down on why there are no more "old fashioned filibusters."

  •  Just great, once we get it, it'll be useless (0+ / 0-)

    Fucking fantastic. So, according to the election projectoins, once we finally get this filibuster reform that we've needed FOR THE PAST FOUR YEARS, by then we'll either be in the minority ourselves, or, be stuck with an even 50/50 mix and STILL NOT HAVE ENOUGH FUCKING VOTES TO GET ANYTHING PASSED.

    Filibuster reform, what a great idea that would have been... in 2006.

    If it happens in 2011, it'll be too late, the country will have spun way too far down the toilet by then.

    Pathetic. It's like we have a death-wish.

  •  It would be a magnanimous (0+ / 0-)

    bipartisan gesture for dems to abolish the filibuster during the lame duck session this fall, prior to GOP rule of both houses.  Then the GOP congress would be sure to reach across the aisle at every opportunity - to punch dems in the nads.

    Here's a crazy idea:  change the rules to require that senators who want to filibuster, must actually filibuster.  If republicans had to read phone books for days on the TeeVee machine to block things like the small business bill, well obviously they wouldn't do it.  Problem solved.

    "When I was an alien, cultures weren't opinions" ~ Kurt Cobain, Territorial Pissings

    by Subterranean on Sat Sep 04, 2010 at 12:08:22 AM PDT

  •  Filibuster (0+ / 0-)

    We are wasting our time trying to end the filibuster at the beginning of the next Congress.
    It should have been attempted at the beginning of the previous Congress when there were likely to be more votes for it.
    After the upcoming election, if there are 53 Democrats in the Senate, there aren't 50 votes to end the filibuster rule.
    We blew our chance big time in 2009.

  •  Beautiful petition. Pithy. Succinct. Let's just (0+ / 0-)

    hope that it isn't so short that it is scanned and then easily forgotten. In order for it to work, it needs to be on the agenda and acted on on that first day of the new Congress. If not, then it will have been for naught.

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