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Republican leaders Senator Mitch McConnell (R) and John Boehner speak after a bipartisan meeting with President Barack Obama at the White House in Washington June 10, 2010. REUTERS/Kevin Lamarque (UNITED STATES - Tags: POLITICS)
One from the House. One from the Senate. We both say this is Democrats' fault. See? Balance!
Both the Washington Post and USA Today editorial boards took up the issue of filibuster reform, and to their credit, both are perfectly clear in recognizing that the proposed reforms are potentially good ones, striking a reasonable balance between traditional Senate preservation of the rights of the minority party and the need, as Alexander Hamilton put it, for "energetic government."

But shortly after acknowledging the good sense of the proposed reforms, and indeed in the case of the Post, fretting that "if anything, they would go not far enough," both ed boards retreat into their too-familiar "both sides do it" safe places. The false equivalence game is unwarranted.

Consider first the warning repeated in the USA Today piece that should Senate Democrats reform the rules by majority vote, "Republicans have threatened a war they warn could shut down the Senate." The threat answers Republicans' own objection. If Republicans threaten to shut down the Senate if the rules are changed, that must mean that the rules changes proposed don't remove their ability to shut down the Senate. It's as simple as that.

As both editorials note, there are other methods available to the parties to settle the issue. Both point to the 2005 "Gang of 14" agreement by way of example, and both note that the key concession involved was the Democrats' agreement not to filibuster the Republican president's judicial nominees except in "extraordinary circumstances." That agreement held, the editorialists point out, and so similar negotiations should be expected to yield similar results this time.

Left out of the Post's recounting, however, and only mentioned in passing by USA Today, is the January 2011 "Gentleman's Agreement," which was supposed to tamp down on abuse of the filibuster in order to avoid forcing through more drastic changes by majority vote. USA Today notes only that, "the deal quickly fell apart with both sides pointing fingers." So here we have an example of Democrats bargaining for a reprieve from a rules change in 2005 and sticking to terms (this despite the fact that the Gang of 14's agreement was limited to the duration of the 109th Congress), and an example of Republicans bargaining for a similar reprieve in 2011 and not sticking to it. Conclusion: "both sides are hypocrites on this issue."


There are more differences between the battles of 2005 and today, and other objections that need to be raised to the too-brief summaries offered up in these editorials. For one thing, we're talking about a 2005 move to eliminate the filibuster entirely on lifetime appointments of federal judges versus the current move to eliminate the filibuster on procedural motions that block even the beginning of debate on routine legislation. And that's not to mention the meta-issue of whether or not it's the same thing to ask for a vote on a new set of rules at the outset of a new Congress, versus changing them in mid-game once they become a nuisance for the majority. Those issues have been amply addressed in the past and will be again. For now, it's important all by itself that when Senators, parliamentarians, independent experts and newspaper editorial boards all agree on an identified problem as critical to the future of the country as whether or not we will allow ourselves to be governed, we simply have the courage to say so without having to preemptively soothe sore feelings by pretending everyone shares equally in the blame.

Thomas Mann and Norman Ornstein managed to do it and survive. The rest of us can, too.

Originally posted to David Waldman on Tue Dec 04, 2012 at 12:02 PM PST.

Also republished by Daily Kos.

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Comment Preferences

  •  David... (4+ / 0-)

    thanks for all your analysis on this issue.  

    How surprised would you be if the Democrats do not manage to change the rule on the first day of the next session?

    It's not easy being a Floridian: PS I'm a lawYER now; no longer a lawSTUDENT.

    by lawstudent922 on Tue Dec 04, 2012 at 12:30:10 PM PST

    •  Pick the tantrum from McConnell (1+ / 0-)
      Recommended by:
      alice kleeman

      His caucus will be totally irresponsible. Why give him extra ammo?

      The GOP is the party of mammon. They mock what Jesus taught.

      by freelunch on Tue Dec 04, 2012 at 04:09:17 PM PST

      [ Parent ]

    •  I'll be surprised if the rules don't change. (1+ / 0-)
      Recommended by:

      But I wouldn't be surprised if they engineered some other way to do it, possibly not on the first day of the next Congress.

      That could mean a rules change under (what purports to be) regular order. Or that could mean reserving the right (absent objection) to have the fight about majority vote rules change on some later date. But there are a lot of things that can happen and still have the results be called "rules change," and that makes it kind of hard to predict.

  •  What is your prediction (1+ / 0-)
    Recommended by:

    on the way things will go, David?  Every time I read about filibuster reform I think of all the work you have done on it and that speech you gave explaining the whole thing and making the case for it. Was that at a Netroots nation? Can't remember.

    "Justice is a commodity"

    by joanneleon on Tue Dec 04, 2012 at 12:52:31 PM PST

    •  I have done a few. (1+ / 0-)
      Recommended by:

      I did do one at Netroots Nation a few years back, in Las Vegas.

      It's almost impossible to predict exactly what they'll do and by what mechanism they'll do it, but Harry Reid sure seems determined to see something done.

      I guess if we go with history as the guide, we'll see some preliminary sparring, then some vote counting, and if it looks like there are 50+ votes to get things done, you may start seeing some deal-making that ends up resulting in an agreement not to filibuster an agreed-upon package of rules changes, in the hopes that they'll minimize any precedent setting with respect to procedure.

      It seems like there's actually pretty broad openness to making the motion to proceed and the conference motions non-debatable. And I wouldn't be surprised to see agreement around the "talking filibuster," either. I guess if I were into helping Republicans strategize, I'd say they should jump out of the way of these reforms, let them go through, and bank all the work reformers have been doing in support of the constitutional option so that they can threaten the same the next time they win the majority.

  •  Mitch McConnell is the most irresponsible (10+ / 0-)

    legislator in Washington.  More than any other one person, he took the filibuster and used it to thwart the will of the majority and to ensure that the Senate would be dysfunctional rather than support President Obama.

    He was given the same power that others had before him for decades, and, he abused it to the point that it has to be taken away.  Any decent editorial should point the finger right at him.

    See you in Heaven if you make the list. R.E.M.

    by Akronborn on Tue Dec 04, 2012 at 01:37:34 PM PST

    •  I doubt it was at McConnell's sole (0+ / 0-)

      discretion. I'm sure he was claiming the lead role simply due to his position, at the behest of many of his colleagues. Perhaps only because he felt he'd lose his position, but then he should be criticized for cowardice, not irresponsibility.

      "Lone catch of the moon, the roots of the sigh of an idea there will be the outcome may be why?"--from a spam diary entitled "The Vast World."

      by bryduck on Tue Dec 04, 2012 at 02:30:39 PM PST

      [ Parent ]

    •  Au contraire, he's very responible (0+ / 0-)

      to the people who gild his 2nd-best yacht.

      Don't let millionaires steal Social Security.
      I said, "Don't let millionaires steal Social Security!"

      by Leo in NJ on Tue Dec 04, 2012 at 02:37:51 PM PST

      [ Parent ]

    •  McConnell made his intentions clear (9+ / 0-)

      in fact the entire crop of Republicans in congress made their intentions clear the day the president was inaugurated in 2009.  The problem was then that no one believed the extent the GOP would go to in order to fulfill those intentions.  Reid didn't believe it, and neither did the president.  The only one who believed it was Pelosi, and thank god she did or we wouldn't even have the ACA.

      I think Reid believes the Republicans will not let up this congress even though the threat of Obama's becoming a two-term president is moot.  The Majority Leader appears to understand that the GOP intends to wreck Obama's legacy since they couldn't thwart his election.  The same seems to have finally gotten through to Obama, too - I just hope it holds.

      I sure wish we had Pelosi back in control of the House.

      "In this world of sin and sorrow there is always something to be thankful for; as for me, I rejoice that I am not a Republican." - H. L. Mencken

      by SueDe on Tue Dec 04, 2012 at 02:42:37 PM PST

      [ Parent ]

  •  The fact that both sides do it (0+ / 0-)

    doesn't mean it's not destructive or that it doesn't contribute to gridlock.  What ever the new rules are, both sides will do that too.

  •  I just replied to a (12+ / 0-)

    "both sides do it" comment in another diary.
    David explained what the republicans wanted to do in 2005, but what he didn't tell you was why:

    Democrats have allowed 205 of Bush’s judicial nominees to be confirmed, but they have used the filibuster — or, more accurately, the threat of the filibuster — to prevent floor votes on 10 others.

    Democrats used the filibuster TEN times to block GWB judicial nominees.. Since 2007, the republicans have used the filibuster over 300 times to block bills, prevent Obama's appointment of cabinet positions, juducial nominees, everything.

    Most Republican senators, in most circumstances, make no distinction between opposing a nomination (or a bill) and opposing cloture on it — so virtually every opposition results in a filibuster. And even in the cases where Democrats did have 60 votes, it sometimes is a struggle, and at the very least it threatens to take far more Senate floor time than would normally have been necessary for all but the most controversial appointments.

    I have no idea whether Republicans will successfully defeat by filibuster any of Barack Obama’s upcoming high-level executive-branch appointments. I’m certain, however, that they will require 60 votes for most or all of those nominees. In other words: They may or may not defeat them, but they will attempt to, and their attempt will be by filibuster.

    “We are not a nation that says ‘don’t ask, don’t tell.’ We are a nation that says ‘out of many, we are one.’” -Barack Obama

    by skohayes on Tue Dec 04, 2012 at 02:28:58 PM PST

    •  And the result of the Republican blockade (4+ / 0-)

      of judicial nominees?

      - 103 current or pending vacancies.
      - 19 nominees waiting for a final floor vote for 6 months or more.
      - 97% of nominees delayed  in receiving final votes in the Judiciary Committee for weeks - most after having their hearing delayed, too.
      - a six month stall before the election under the 'Thurmond Rule', where Republicans hoped for a Romney victory.
      - a one month delay since the election during which ONE judge has been confirmed by the Senate.

      Filibuster reform would be great, but that's just the start of what needs to be fixed when it comes to getting Presidential nominees confirmed.

      Filibuster reform now. No more Gentleman's agreements.

      by bear83 on Tue Dec 04, 2012 at 03:25:11 PM PST

      [ Parent ]

  •  who is running against MCConnell in 2014? n/t (1+ / 0-)
    Recommended by:
    Eric Nelson

    Simpson-Bowles Commission otherwise known as the Cat Food Commission, is pushing to initiate another phase for 'The Elite Americans Movement' towards their principle for budget deal slogan "making life miserable for everyone less fortunate than you."

    by anyname on Tue Dec 04, 2012 at 02:40:44 PM PST

  •  The phantom menace of "overreach" (5+ / 0-)

    We see it in the California legislature too, with everyone and their dog warning Dems not to actually use their new supermajority powers to actually fix the problems the state faces. Oh no, they might raise tax here or a fee there, and then kids could afford college again while fat cats would be slightly less fat! "Overreach" is a handy phantom menace for established power brokers to threaten everyone and a way for moderate Dem leaders to tamp down expectations.

    They have the power. Not using it is as much of a statement as is using it.

    Government and laws are the agreement we all make to secure everyone's freedom.

    by Simplify on Tue Dec 04, 2012 at 02:43:54 PM PST

  •  Can we take an up-or-down vote on (0+ / 0-)

    destroying that picture of McConnell? It keeps making me vomit in my mouth a bit.

  •  Mann and Ornstein survived? (0+ / 0-)

    Well, in the biological sense, yes. In the Village sense, no. Very much no.

    Let us all have the strength to see the humanity in our enemies, and the courage to let them see the humanity in ourselves.

    by Nowhere Man on Tue Dec 04, 2012 at 02:53:32 PM PST

  •  Imagine a world without the gop and their idiot (0+ / 0-)

    fiscal cliff and obstructionism.

    You can't make this stuff up.

    by David54 on Tue Dec 04, 2012 at 02:54:59 PM PST

  •  OT but has anyone seen the (2+ / 0-)
    Recommended by:
    alice kleeman, dharmafarmer

    video of Rob Portman being confronted at a Fix the Debt seminar.  It's inspiring - every couple minutes someone stands and asks a question or makes a statement about cutting Social Security and Medicare.  The faces of the fat cats are something to see and at the end a Heritage Association Official comes tearing out after them complaining that 'these people are screwing up the economy for MY kids."  

    I have never seen a better example of the total contempt in which the 2% and their minions hold the rest of us.

  •  Tom and Norm just want to sell books (1+ / 0-)
    Recommended by:
    alice kleeman
    Thomas Mann and Norman Ornstein managed to do it and survive. The rest of us can, too.
    The GOP has become an insurgent outlier in American politics. It is ideologically extreme; scornful of compromise; unmoved by conventional understanding of facts, evidence and science; and dismissive of the legitimacy of its political opposition. When one party moves this far from the mainstream, it makes it nearly impossible for the political system to deal constructively with the country’s challenges.

    yksitoista ulotteinen presidentin shakki. / tappaa kaikki natsit "Nous sommes un groupuscule" (-9.50; -7.03) 政治委员, 政委‽ Warning - some snark above ‽

    by annieli on Tue Dec 04, 2012 at 03:27:18 PM PST

  •  Those incredibly incompetent judges (0+ / 0-)

    that George W. Bush kept sending up to the Senate when the GOP had the majority...Would the Democrats have been able to block them if these "filibuster reforms" were in place?

    •  Yes. (0+ / 0-)

      But it would have taken some work.

      Oh, and the Republicans would have had to want to move on to other business. The talking filibuster probably doesn't carry exactly the same threat if there's no particular agenda item you have in mind to get to next.

  •  fuck those filibastards (1+ / 0-)
    Recommended by:
    David Waldman

    Slow thinkers - keep right

    by Dave the Wave on Tue Dec 04, 2012 at 03:42:15 PM PST

  •  Rule Number One. (4+ / 0-)

    Gentlemen's agreements don't count.

    Republicans have proved time and time again that they are NOT gentlemen.

  •  USA Today has become intolerable (1+ / 0-)
    Recommended by:
    Eric Nelson

    When their editorial page isn't running with their "both sides do it" shtick on an array of issues, they're hammering home their Pete Peterson/Simpson-Bowles catfood commission non-report approved talking points, excoriating the masses to suck it up and quit whining and learn to do with less.

    They recently opined that the increase in taxes "to save Social Security" I've been paying for forty-years was all gone and I'd just have get over it.

    See? Trickle down works! Presto! It's good to be a villager!  

    "extravagant advantage for the few, ultimately depresses the many." FDR

    by Jim R on Tue Dec 04, 2012 at 04:08:05 PM PST

  •  WaPo wants same old same old (1+ / 0-)
    Recommended by:
    Eric Nelson

    They seem to forget that the world had moved on past Watergate, even if Woodward is still there.

    Kaplan is still a horrible way to teach people.

    The GOP is the party of mammon. They mock what Jesus taught.

    by freelunch on Tue Dec 04, 2012 at 04:08:28 PM PST

  •  Oakland Trib/Contra Costa Times did pretty well (1+ / 0-)
    Recommended by:
    Eric Nelson

    No groping for false equivalence, no bullshit. Just an explanation of how the Republicans have fucked us all with the filibuster.

    Best bit:

    Not one filibuster was recorded in the Senate until 1841. The average in the decade of the Reagan and Carter years was about 20 per year. Senate Republicans used the filibuster a record 112 times in 2012, and have used it 360 times since 2007.

    They have stopped legislation that has widespread public support. GOP senators blocked a major military spending bill, a badly needed veterans' jobs bill and the Dream Act, all of which would have passed with a majority. They stifled the Disclose Act, which would require greater transparency in campaign advertising. In a particularly craven abuse of the system, they have halted the nominations of nearly two dozen judicial appointments, causing backlogs in courts that delay justice for people and businesses across the country.

    "All things are true. Even false things. Don't ask me, man, I didn't do it." -Mitt Romney

    by Geiiga on Tue Dec 04, 2012 at 04:29:13 PM PST

  •  Yuck (1+ / 0-)
    Recommended by:
    Mark Mywurtz

    Closeup of McConnell is offensive.

  •  "There is no such thing as a guarantee".. (0+ / 0-)

    ..iow's if the Democrats are a minority and want the filibuster protections - they don't have it.

    Tape one minute 0:49:00 Kagro in the morning

    Which is why eliminating the filibuster altogether is good footing for beginning negotiations imo

    But Merkley's ideas, though good, don't go far enough. We need to eliminate the super majority requirement in all but Article 5 provisions like ratifying treaties, POTUS impeachment. overriding a POTUS veto etc.

  •  Um, thanks for the photo (0+ / 0-)

    ....gonna be hard to sleep tonight.  McConnell is one of the ugliest bastards in Washington.  Inside and out.  

    Political compass: -8.75 / -4.72

    by Mark Mywurtz on Tue Dec 04, 2012 at 06:16:23 PM PST

  •  if the GOP takes control of the Senate again.... (0+ / 0-)

    ...They will eliminate the filibuster ENTIRELY.

    Everything will be voted in by up-down voice vote.

    Ram, ram, ram.

    The ALEC agenda.

  •  Where the heck did "rights of the minority party" (0+ / 0-)

    come from anyway?

    I am all in favor of rules that prevent the majority from stacking the deck so that the minority party has no chance ever to become the majority (gerrymandering, vote suppression, Citizen's United, and union busting come to mind).

    But which article of the Constitution, which of its amendments, or which Supreme Court decision gives the minority party any "rights" in the legislative process?

    One senator, one vote.

    Have you noticed?
    Politicians who promise LESS government
    only deliver BAD government.

    by jjohnjj on Tue Dec 04, 2012 at 07:24:51 PM PST

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