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The campaign to reform Senate rules--most prominently those rules regarding the filibuster--has undeniably been fueled in large part by Democratic frustration at our inability to pass more and better legislation over the past two years.

However, it must be admitted that the current reforms being discussed, making the filibuster real and reducing opportunities for obstruction on nominations, would not have altered the outcome of any of the major legislative fights of 2009-2010. Even if both changes had been in place back in January 2009, the stimulus, housing, health care, energy, immigration, financial reform and tax cut fights would have all played out largely the same, at least in policy terms.

So why are we doing this at all? Because the proposed reforms would be big differences outside of the major legislative fights. Most notably, the legions of vacancies in our federal judicial, regulatory, law enforcement and diplomatic departments would be nowhere as severe. In September, the Center for American Progress put this vacancy crisis in perspective:

The Washington Post’s count of 526 agency and White House appointees excludes ambassadors, U.S. Attorneys, U.S. Marshals, and federal judges. When you add these Senate confirmed positions into the mix, the time required to confirm all the president’s nominees grows even more:

  1. There are 181 senate-confirmed “Chiefs of Missions” leading an equal number of embassies abroad. Confirming each of these ambassadors would require just over 226 days.
  2. The 93 U.S. Attorneys would require over 116 days to confirm.
  3. Confirming 94 U.S. Marshals would require nearly 118 days.
  4. Presently, 103 federal judgeships are vacant. They would require almost 129 days to confirm.
In total, this adds up to over 1,200 days and nights required to confirm all of a president’s nominees over minority objection—more Senate work days than there are in two entire presidential terms.

Almost all of these vacancies are caused not because they lack 60 votes for confirmation--they have the votes just fine. What they lack is time, a problem caused by existing Senate rules:

Unless the senators unanimously consent to holding a vote immediately, dissenting senators may demand up to 30 hours of post-cloture debate before a vote can actually take place, and they can prevent the Senate from considering any other business during these hours of delay.

If a single Senator objects to a nomination, s/he can stall all Senate business for 30 hours. Senators like Tom Coburn and Jim DeMint have systematically wielded this power to deny unanimous consent to even the most routine nominations. They have done so with the express purpose of grinding the government to a halt, and their efforts have yielded remarkable success. For example, the judiciary has actually grown more Republican over the last two years:

A determined Republican stall campaign in the Senate has sidetracked so many of the men and women nominated by President Barack Obama for judgeships that he has put fewer people on the bench than any president since Richard Nixon at a similar point in his first term 40 years ago.

The delaying tactics have proved so successful, despite the Democrats' substantial Senate majority, that fewer than half of Obama's nominees have been confirmed and 102 out of 854 judgeships are vacant...

When Bush left office, Republicans had appointed just under 60 percent of all federal judges. Twenty months later, the number has dipped only slightly to a shade under 59 percent, according to statistics compiled by the liberal Alliance for Justice. Because of retirements, the percentage of Republican-nominated district judges actually has gone up.

Making the motion to proceed not subject to filibuster, and ending post-cloture debate time on nominations, would put an end to this. Nominations would only be blocked when there were 41 Senators opposed to the nomination. This would fill hundreds of these vacancies very quickly, making for a larger victory than any legislative accomplishment reasonably within the reach of Congressional Democrats in 2011-2012. The people enforcing and interpreting laws and regulations are just as important as the laws and regulations themselves, after all. Further, a government riddled with vacancies becomes a self-fulfilling conservative prophecy of a government that doesn’t function well.

None of this is to discount the potential political and messaging benefit of making the filibuster a real filibuster. It is entirely possible that by making the filibuster real, its use will be significantly reduced and attention to Republican obstructionism will be greatly heightened. However, relative to the concrete benefits of plugging hundreds of holes in the federal government, it is just more difficult to predict what impact the real filibuster will have.

There is a lot to be won in the rules reform fight, even if its flying under the radar. You can join the campaign by signing our petition to make the filibuster real here.

Originally posted to Daily Kos on Thu Dec 30, 2010 at 06:37 PM PST.

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Comment Preferences

  •  Streamline Senate Processes NOW (3+ / 0-)
    Recommended by:
    Trix, Timbuk3, Dopeman

    because it should function as a progressive institution, not as a way to block progressive laws



    80 % of SUCCESS.....IS.....JUST showing up ! ! ! !

    by Churchill on Thu Dec 30, 2010 at 06:45:58 PM PST

  •  I've signed the petition (5+ / 0-)

    Now it remains to be seen what the backroom negotiations will produce.

    I hope that Merkley's plan prevails.

    An appeaser is one who feeds a crocodile -- hoping it will eat him last. ~ Winston Churchill

    by Coldblue Steele on Thu Dec 30, 2010 at 06:48:10 PM PST

  •  Honestly I wonder (2+ / 0-)
    Recommended by:
    Simplify, Dopeman

    If the best thing to come out of this would be for any rule change to happen on a simple majority, thus ending the fiction of the Senate as a "continuing body."  

    That's why I fear what may come from Reid's negotiations, they'll gut Merkley's rule changes and pass some kind of symbolic but useless rule change with 67 votes and foil both the aim of curtailing filibuster abuse, and proving that the Senate really is majority rule under the facade of sophistry.

  •  I question this (5+ / 0-)
    Recommended by:
    Timbuk3, eztempo, Simplify, Dopeman, jpmassar

    However, it must be admitted that the current reforms being discussed, making the filibuster real and reducing opportunities for obstruction on nominations, would not have altered the outcome of any of the major legislative fights of 2009-2010. Even if both changes had been in place back in January 2009, the stimulus, housing, health care, energy, immigration, financial reform and tax cut fights would have all played out largely the same, at least in policy terms.

    Could the Republicans have sustained a talking filibuster against the Stimulus?  Or ending upper class tax cuts?  I don't need to stay hypothetical either, as during Finreg, didn't Reid actually employ a tactic of holding repeated cloture votes until the Republicans cracked under the strain of multiple "GOP blocks financial regulatory reform" headlines?

    True, any of these fights could have ended the same, if the GOP stayed united and proved willing to talk these bills to death, but it seems unlikely all of them would have ended the same under Merkley's filibuster rule.

  •  There should be a pay-as-you-go program (0+ / 0-)

    for those wasted hours. If a Senator is going to demand a 30-hour period where no other business can move he should have to add a work day to the calendar at the same time.

    Just like the demand that if you are going to spend somewhere you have to cut somewhere else, for every day you waste you have to add a day.

    Barack Obama is the best Republican president since Bill Clinton.

    by Dopeman on Thu Dec 30, 2010 at 07:10:18 PM PST

  •  Total and utter dysfunction and (2+ / 0-)
    Recommended by:
    Timbuk3, Dopeman

    the media say more or less nothing at all. Within weeks, not years, they'd have been apoplectic if the party's positions in this were reversed.

    We have only just begun and none too soon.

    by global citizen on Thu Dec 30, 2010 at 07:16:38 PM PST

  •  Filibuster reform (3+ / 0-)

    Democrats are reluctant to change the number of votes  needed to break a filibuster fearing they may be in the minority someday. If and when they become the minority won't the new Senate be able to change that number anyways? Maybe I'm missing something.

  •  Three things (4+ / 0-)
    Recommended by:
    eztempo, Simplify, Scientician, DKinUT
    1. "The GOP may have the majority again" is not a good reason to leave the rules as they are. If the GOP takes the majority again, they can (and likely will) change the rules to their own benefit, anyway.
    1. Conservatives "want things to stay the same" (i.e. pass no legislation) almost by definition. Progressives/liberals want to change things (i.e. pass legislation) by definition. Leaving rules in place that make change difficult is, therefore, automatically to the benefit of conservatives and the detriment of liberals/progressives.
    1. (And most important.) Making it harder to block things will get a lot of "liberal" judges on the bench before the clock runs out. Conservatives understand that control of the courts is important. We should, too.

    Shop Liberally this holiday season at Kos Katalogue

    by Timbuk3 on Thu Dec 30, 2010 at 07:38:49 PM PST

    •  However "stay the same" vs. "change" breaks (0+ / 0-)

      I don't know that more legislation is proposed under Democratic majorities versus Republican majorities in the Senate, but however that breaks out it IS the fact that Democrats have been much less inclined to use the filibuster than Republicans have since 1990.

      Going forward, I just don't see Harry Reid morphing into a radical obstructionist asshat mirror of Mitch McConnell.  Therefore, changing the rules of the Senate as Udall, et. al. have proposed will impact Republican legislative strategy much more than Democratic.

  •  Is a Senate workday measured differently than (0+ / 0-)

    an underpaid secretary's?

    1,200 days and nights = 28,800 hours. Divided by a 100 Senators is 288 hours; is 7 ordinary work weeks, plus an hour's overtime.

    The other time is spent meeting lobbyists and Big Money then? I dunno. Just seems like Senators make up a lot of crap to let themselves avoid dealing with the demands of our Representatives if you ask me. New or old practice, that's what it looks like.

    Until we break the corporate virtual monopoly on what we hear and see, we keep losing, don't matter what we do.

    by Jim P on Thu Dec 30, 2010 at 07:53:53 PM PST

  •  Of course it would have changed everything! (4+ / 0-)
    Recommended by:
    Timbuk3, Scientician, DKinUT, Miggles

    However, it must be admitted that the current reforms being discussed, making the filibuster real and reducing opportunities for obstruction on nominations, would not have altered the outcome of any of the major legislative fights of 2009-2010. Even if both changes had been in place back in January 2009, the stimulus, housing, health care, energy, immigration, financial reform and tax cut fights would have all played out largely the same, at least in policy terms.

    I couldn't disagree more. The old crop of Republicans couldn't be bothered to do any real WORK in the last session (such as fact checking, skipping vacations, and bothering to check in person to see what their policies were doing). Currently they're whining about having had to work during the same two weeks that 99% of Americans had to work. They're lazy good-for-nothing whining armchair quarterbacks.

    If the new filibuster rules requiring constant speaking (ala "Mr. Smith Goes To Washington") had been in place, there would have been no Republican filibusters, especially after learning that an actual Senator had to be the one talking and not just an intern. Democratic legislation would have sailed through Congress amidst Republican outcry that Democrats were doing a "power grab" by taking advantage of the natural laziness of Republican Senators. The stimulus would have been big enough to matter. The public option would have made it through the Senate long before the puffing wheezing Republicans had managed to spatula their asses out of their government-funded barcaloungers and stand up.

    The filibuster reform would have saved us all.

  •  I Don't Agree (6+ / 0-)

    It must be admitted that the current reforms being discussed, making the filibuster real and reducing opportunities for obstruction on nominations, would not have altered the outcome of any of the major legislative fights of 2009-2010.

    I just don't think that's true. For one thing, forcing Republicans to go to the floor and tell the public day after day why they think, for example, the public option is a bad idea would have put enormous pressure on them to change their votes. More importantly, it would have put pressure on the holdout Democrats to change their votes.

    And, for that matter, it would have totally changed the time calculus for these bills. If the Democrats had had the option of bringing this bill up in the Senate in, say, spring of 2009 and forcing the Republicans to stand in the Senate day after day and tell the public their cock-and-bull stories, instead of letting it go over the summer where the Republicans could stage their attacks, that would have changed the strategy, too. (In fact, they could have backed them into choosing to vote for it to go on summer vacation or stand there and talk. That would have totally ruined the Republican's summer strategy of attacking at town halls. But, of course, that would credit Reid with an excess of brains and courage. Can I stretch the point that far?)

    I don't think we can say with any certainty what would have happened had the Republicans had to mount a real filibuster on any of these bills. Suddenly, they would have had to go to the floor and explain themselves on the record while under constant attack for everything they said.

    The one thing that does support your position, however, is that it's pretty clear that Obama and the major Democrats had no intention of getting a better bill on healthcare or taxes or Guantanamo or anything else that matters. So, to the extent that the Senate is Kabuki it probably wouldn't have changed anything. I just think that Kabuki is a little harder to pull off if you bring the Klieg lights up close and shine them on the actors. Sometimes their face paint melts.

  •  A talking filibuster is to our political advatage (0+ / 0-)

    As it stands, Republicans can block progress on agenda items important to Americans without paying any political price since their obstruction is largely invisible.  

    While the "big issues" of 2010 may have come out the same viz. their being filibustered, at least if the Republicans have to hold the floor talking and explaining themselves, their hours of pettifoggery, throwing a wrench in the works, will paint them for the petty demagogues they are, and there will be a political price to be paid for it.

    •  Strom Thurmond (0+ / 0-)

      Little bit of political trivia for you here:

      Strom Thurmond, who was a Democrat at the time, conducted the longest filibuster ever by a lone senator in opposition to the Civil Rights Act of 1957, at 24 hours and 18 minutes in length, nonstop.

      "Quis custodiet ipsos custodes?"

      by jasontromm on Tue Jan 04, 2011 at 10:57:04 AM PST

      [ Parent ]

  •  Not sure about a point (0+ / 0-)

    However, it must be admitted that the current reforms being discussed, making the filibuster real and reducing opportunities for obstruction on nominations, would not have altered the outcome of any of the major legislative fights of 2009-2010.

    On first glance, yes, unless you take into account the way a talking filibuster can affect public opinion.  The debate over the Civil Rights Act forced opponents to look ridiculous.

    Politics is the entertainment branch of industry. -Frank Zappa

    by TheGrandWazoo on Fri Dec 31, 2010 at 02:25:30 AM PST

    •  Talking filibuster? - nope. Not today. (0+ / 0-)

      "The debate over the Civil Rights Act forced opponents to look ridiculous."

      That was back when congresscritters had SOME shame - and when the people paid SOME attention to publicity other than simplistic lies.

  •  A Golden Opportunity (0+ / 0-)

    The fact is that this year it will be very wise for the Senate to come to a crashing halt, and to do it because of holds on relatively controversy-free nominees is actually ideal.

    Look, Woosey Democrats--you blew 2010 because you didn't have a narrative. Let the hidden holds form the narrative!

    Quidquid latine dictum sit, altum viditur.

    by MrMichaelMT on Fri Dec 31, 2010 at 06:08:24 AM PST

  •  so really, why are there all these (0+ / 0-)

    vacancies if it's not obstructionism.........

  •  But with C-span and the Fox to pull (0+ / 0-)

    out the Repubs best talking points and run them 400 times a day?

    Why do you think they would be defending their position? They would just spray shit over the Dems points. It would be non stop Death panels, gutting Medicare, they will ration your care, they won't let you pick your doctors, your doctors won't be able to  decide. Some government panel will decide  what surgery, what medication you can have...

    I hope they build in a way for the dems to speak some to counter the lies they will be telling.

    And when they are bored they can attack Obama, his birthplace, religion, discuss if he is a socialist or a commie or a fascist or a martian or whatever.

    This could be a really big disaster. What makes me most suspicious is that I don't hear any talk against it. From the Repubs. If it is so hard on them why aren't they fighting? at least talking? Why isn't the beck saying it's a power grab, it's a move to Europeanism, they are taking away our freeeeeedom.

    I'm asking you to believe. Not in my ability to bring about real change in Washington ... I'm asking you to believe in yours. Barack Obama

    by samddobermann on Fri Dec 31, 2010 at 07:59:43 AM PST

  •  Allow nominations to serve immediately (0+ / 0-)

    Why shouldn't those nominated served immediately?  Let congress catch up with advice and consent.  No matter what happens with rule changes, posts need to be filled right away not in however many months it take for congress to act.  If there is a problem with one they should be able to move to block or dissent as fast as they can but the rest should be allowed to serve in the mean time.

    Further, this would give congress a track record in the office to review.  The way this works today is ridiculous in this day and age.

    If stupidity got us into this mess then why can't it get us out? - Will Rogers

    by Semental on Fri Dec 31, 2010 at 08:28:51 AM PST

    •  that won't work for Judges; (0+ / 0-)

      they are appointed for life. And you won't find many who would move and start a job subject to being yanked.

      I'm asking you to believe. Not in my ability to bring about real change in Washington ... I'm asking you to believe in yours. Barack Obama

      by samddobermann on Fri Dec 31, 2010 at 08:59:29 AM PST

      [ Parent ]

      •  Judges are a small part of the problem (0+ / 0-)

        How many other positions sit due to inaction?  Executive posts, ambassadors...  And why not judges if they are willing.  The point is the pressure should be on congress to fulfill their duty, not reward the opposition for obstruction.

        If stupidity got us into this mess then why can't it get us out? - Will Rogers

        by Semental on Fri Dec 31, 2010 at 07:52:36 PM PST

        [ Parent ]

  •  If Obama had any goddamn spine (0+ / 0-)
    he would reccess appoint EVERYONE.  That would have the double impact of A). getting whom we wanted in the judiciary, and B). give a nice big finger to the rethugs.

    But he just stamps his feet, and brays about how powerless he is.

    "I'm not scared of anyone or anything, Angie. Isn't that the way life should be?" Jack Hawksmoor

    by skyounkin on Fri Dec 31, 2010 at 10:39:07 AM PST

  •  "TALKING FILIBUSTER" (0+ / 0-)

    Not enough.

    They should have completely eliminated the filibuster (rule 22, the 60-vote requirement) almost two years ago.

    They could have made all the reforms REAL, and insured Democratic rule for decades to come.

    With Medicare for all with drug reimportation and negotiation, elimination of antitrust violations like McCarran Ferguson (and reinstating Glass Steagall;) TRUE election reform, reversing Citizens United, and sunsetting the Bush tax uppercuts; they would have been hailed as heroes.

  •  Denver Has Stopped Talking And Is Doing Something (0+ / 0-)

    On January 3rd, 2011, a group of concerned citizens will be meeting on the West steps of the State Capitol in Denver for a Rally for Filibuster Reform.  Among the speakers will be staffers from Senators Bennet and Udall.  The Senators will be on their way to Washington while citizens demand majority rule!

  •  Be Careful What You Wish For (0+ / 0-)

    Y'all better be careful what you wish for. You folks at the DailyKos will be the first to complain when the next GOP President nominates a conservative judge you don't like and the Dems can't filibuster the nomination.

    You want this reform while your guys are in charge, but you'll sing a different tune when a Republican majority takes control of the Senate and the GOP wins the Whitehouse in 2012.

    "Quis custodiet ipsos custodes?"

    by jasontromm on Tue Jan 04, 2011 at 10:49:09 AM PST

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