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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.

Help make the filibuster a real, talking filibuster. Sign our petition.

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

Also republished by Daily Kos.

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Comment Preferences

  •  It wouldn't bother me if they slid alll the (4+ / 0-)

    ... way to the bottom.

    Yes, our side has occasionally used the filibuster to ward off some extreme right-wing evil. But it's been far more often used against us.

    As far as that goes, I'd be fine with abolishing the Senate altogether even though it's the only house of the legislature that we currently control.

    "The smartest man in the room is not always right." -Richard Holbrooke

    by Demi Moaned on Wed Dec 12, 2012 at 11:23:52 AM PST

  •  a slippery slope to majority rule (3+ / 0-)

    wouldn't that be awful!

    An ambulance can only go so fast - Neil Young

    by mightymouse on Wed Dec 12, 2012 at 11:57:24 AM PST

  •  Tom Harkin's proposal (5+ / 0-)

    Tom Harkin was on Rachel Maddow last night and Ezra Klien asked him about a filibuster reform plan he proposed in 1995, when he was in the minority, he explained that under this proposal, if you don't get 60 votes, wait three days and try to get 57 votes, if not, wait three days and try to get 55 votes etc.

    Not sure how I feel about this plan, it didn't sound like he is proposing it now.

    The best part of the interview was when Tom Harkin addressed the "what about when you aren't in power anymore" hand-wringing by stating confidently, "I'm not afraid of democracy."

    In other words, if a majority of Americans want republicans to run the Senate, then the republicans can and should advance the policies on which they ran.

    It was an interesting interview.  

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

    by lawstudent922 on Wed Dec 12, 2012 at 12:01:20 PM PST

  •  What do you think are the chances (1+ / 0-)
    Recommended by:
    politicalceci

    that Reid could really get 51 votes for his changes?

    Modest though they are, I'd be quite surprised if he did.

  •  is it too much to ask for a government that (2+ / 0-)
    Recommended by:
    verso2, mightymouse

    functions?

    if the 41 are as powerful as the 59, something is fucked up, because that is not democratic (and it stinks, mathematically)

    Coming Attraction: "Tea Party II - now with more stupid!"

    by memofromturner on Thu Dec 13, 2012 at 04:18:58 PM PST

  •  Republicans are afraid (2+ / 0-)
    Recommended by:
    Mary Mike, verso2

    of how efficient the Senate could be with rules reform. They are even more afraid of actually having to take positions on issues instead of hiding behind arcane Senate rules.

    Filibuster reform now. No more Gentleman's agreements.

    by bear83 on Thu Dec 13, 2012 at 04:19:25 PM PST

  •  Get out the lube (0+ / 0-)

    Fuck the GOP.

    look for my eSci diary series Thursday evening.

    by FishOutofWater on Thu Dec 13, 2012 at 04:19:54 PM PST

  •  Pro-life is a slippery slope (3+ / 0-)

    to outlawing birth control. Bending to the Catholic Bishop's Conference demands is a slippery slope to theocracy. Busting unions is a slippery slope to indentured servitude. Opting out of Obamacare is a slippery slope to rationing health care. Cutting entitlements is a slippery slope to killing them. Sodomy laws are a slippery slope to concentration camps.

    The GOP loves slippery slopes.

    Just not progressive ones.

    "The marriage fight is over when we say it's over, and it's over when we win."—Dan Savage

    by Scott Wooledge on Thu Dec 13, 2012 at 04:24:43 PM PST

  •  Some just needs to point out to the Villagers (2+ / 0-)
    Recommended by:
    MBishop1, jreal

    that McTurtle filibustered his own bill, to keep it from reaching the floor.  That's the very definition of abusive.

    The process is so broken that between secret "holds" and filibusters that require nothing but a vague "intent" to filibuster the country is crashing down around their ears, and they still collect a paycheck for doing nothing.  

    Make'em stand there and talk, let the world see them behaving like horses asses on C-SPAN then YouTube when they can't get their way.  The harm they're doing to the democratic (small d) process is becoming incalculable, nothing is getting done unless the minority approves, which effectively makes them the majority, and last I checked that's not how the voting went out in Flyover (and other parts) of the Country.

    Elections have consequences.  Fuck them and their slippery slope arguments.  

    A celibate clergy is an especially good idea, because it tends to suppress any hereditary propensity toward fanaticism. -Carl Sagan

    by jo fish on Thu Dec 13, 2012 at 04:29:54 PM PST

    •  EXACTLY!! That's all the argument that is needed. (0+ / 0-)

      It would be a shame if this point is not brought up not just once, but routinely.

      What he did was a discrace to the U.S., and especially to Kentucky. Why do we need Fillibuster Reform? Because of McConnell whom is rated as one of the most if not the mos corrupt politican in Congress that disrupts Congress just for the sole purpose, in his own words, to ruin his opponents. That is anti-American.

      So McConnell fillibustering himself should be repeated often as the reason the abuse needs to meet it's end.

  •  Nah - It's more like a slippery cliff.. (0+ / 0-)

    ..curb, bunny-slope, Kabuki-stage..

    It's the same stupid cacophony in a different key.

    The dire straits facing America are not due poor people having too much money

    by Anthony Page aka SecondComing on Thu Dec 13, 2012 at 04:31:25 PM PST

  •  What Slope? (0+ / 0-)

    The Majority Leader's been fighting an uphill climb with these idiot Republicans for years.  He's not slipping down a thing... he's finally climbing up through their bullshit, and I hope he emerges clean and victorious.
    Proud of you, Harry.  Make the change...Make it on day one and geld these Republican bastards!

    "Please don't dominate the rap Jack, if you got nothing new to say." - Robert Hunter

    by WSComn on Thu Dec 13, 2012 at 04:34:28 PM PST

  •  Does anyone doubt (2+ / 0-)
    Recommended by:
    jreal, mightymouse

    (with whats happening at the State level in totally Red States,) that when the Republicans eventually do win the Senate back, that they will change the rules of the game so they can ram through as much policy as possible with no regard to if any changes are a slippery slope?  The Dems need to do it just to stop the Repubs ruthless juggernaut of doing anything it takes to get their agenda passed... from anti union laws to voter intimidation laws to anti women laws.....If they get control of the Senate, they WILL do it... and then it will be too late.

    •  This should also be routinely repeated. (0+ / 0-)

      As pointed out above that we need reform because it has gotten abused so badly that The Senate minority leader has even filibustered his own bill, this also needs to be on auto-repeat.

      Because once they feel that they have sufficient majority, they will pass exactly what Reid is proposing, if not out-right abolishing it.

      The Republican's goal is to out right claw and fight and crush their opponent whenever possible. That has been proven to be the case ever since Bush first won the presidency. If wasn't clear before then, it certainly has been clear since then.

      Republicans WILL abolish the Filibuster once they get control.

  •  Yes David but it means (0+ / 0-)

    that they can vote to change the brand of toilet paper on a simple majority and that will never do. That is a slope just too darn slippery.

    "Do what you can with what you have where you are." - Teddy Roosevelt

    by Andrew C White on Thu Dec 13, 2012 at 04:46:09 PM PST

  •  help! help! (1+ / 0-)
    Recommended by:
    mightymouse

    democracy is breaking out! what would john adams say?

    The cold passion for truth hunts in no pack. -Robinson Jeffers

    by Laurence Lewis on Thu Dec 13, 2012 at 04:46:21 PM PST

  •  The Filibuster (2+ / 0-)
    Recommended by:
    jomsc, mightymouse

    MSUT NOT be done away with altogether. It would be outrageous to strip current or future Senate minority leaders of their right to filibuster their own proposal.

  •  The Senate better be careful! (2+ / 0-)
    Recommended by:
    JML9999, mightymouse

    They might just slip all the way down the slope into Democracy!!

  •  Who is this guy Arenberg? And why is he (0+ / 0-)

    everywhere all of a sudden?  I saw him on UP w Chris Hayes a few weeks ago and he was decidely vague to the point of being slippery.  What's his agenda, and why do we care what he thinks?

  •  Just remember (0+ / 0-)

    What goes around comes around. I fear our side being unable to effective use this maneuver for good in the future. Yeah, it's a VERY slippery slope.

    •  If you believe in that... (0+ / 0-)

      If you believe in "what goes around comes around," then you'll know exactly what to do here.

      In 2005, Republicans made this "go around."

      Today is the "coming around" part of the equation.

      So you either do it, and pull the trigger, or stop thinking the other side won't just laugh in your face next time you tell them "what goes around comes around." Because if you don't make it come around, it doesn't come around.

      •  Um, that isn't what i meant (0+ / 0-)

        I meant that if we alter the rules in this manner it escalates. And the next time the gop has the Senate we can expect to have little sway and little to none parliamentary methods to exert minority influence. Thanks to our own actions like this.  I just hope no one supporting this now whines about it then. And what's stop them from doing anther round of rule changes to strengthen the majority rule until the Senate is essentially the house instead of the Senate? Then we have nothing BUT majority rule with NO minority protections. I think a cooling off period would be great personally.

        •  Ah, but it is. (0+ / 0-)

          Or should have been.

          They altered the norms by threatening rules change last time, and so the next logical step in this is actual rules change.

          Although really, they got far, far more change out of minority Democrats in forcing them to give up the filibuster of judicial nominations entirely than will be gotten out of minority Republicans in the proposed rules changes. They're losing practically nothing, and to be honest, I'm not even all that sure that without a few tweaks it's going to all that well for Democrats. And that's without even getting to a point where majority control flips.

          And that's not to mention the fact that this doesn't even have to "go around" for the Republican crackdown to "come around" later. Playing nice now isn't going to buy anyone any special favors later. Under the next Republican majority, when they come to want the filibuster gone, it'll be gone. Even if we don't do anything now, and show them your comment later.

          They'll do what they want, and tell us to send you their regards. And that'll be that.

          •  I don't follow your logic (0+ / 0-)

            I'm afraid. Yes the have abused the filibuster (or threat thereof ) for the last several years. But that too is cyclical. There's a reason it is dubbed the nuclear option. It would dramatically alter the very essence of the Senate as a more temperate, thoughtful and judicious body that checks the more immediate, popular, and often knee jerk actions of the House.

            And if they want the filibuster gone why didn't they do that when they could have?

            I see nothing good to come from such a dramatic change. On the other hand it would again escalate partisanship up severl notches, and who knows WHAT they would seek in revenge the next time they have power. Besides, look at the Obama judicial nominations, no filibuster. The last standoff I think(thought) chagrined enough people to put such a measure aside.  Let's just leave well enough alone. This would win a short term political battle but lose a long term democratic principle.

            And of course electing more Democratic Senators would solve the problem to begin with.

  •  I don't like Harkin's idea. The burden would still (1+ / 0-)
    Recommended by:
    mightymouse

    be on the majority. We need to discomfit those who are filibustering. Merkeley had some good ideas but I haven't heard anything new lately.
    It does look like we'll have the votes for some revision--but what?

    Warren is neither a Clintonesque triangulator nor an Obamaesque conciliator. She is a throwback to a more combative progressive tradition, and her candidacy is a test of whether that approach can still appeal to voters.-J. Toobin "New Yorker"

    by chuck utzman on Thu Dec 13, 2012 at 04:55:04 PM PST

  •  Sounds like a good idea now but can I change (0+ / 0-)

    my mind later when it's not such a good idea?

    Romney is George W. Bush without brains.

    by thestructureguy on Thu Dec 13, 2012 at 04:59:49 PM PST

  •  "Slippery Slope" is Hyperbole:See Fiscal Cliff nt (0+ / 0-)

    The 1st Amendment gives you the right to say stupid things, the 1st Amendment doesn't guarantee a paycheck to say stupid things.

    by JML9999 on Thu Dec 13, 2012 at 05:01:28 PM PST

  •  Think like a Republican. (0+ / 0-)

    Change the rule, and then change it back right after the midterms if necessary.

    If you hate government, don't run for office in that government.

    by Bensdad on Thu Dec 13, 2012 at 05:16:21 PM PST

  •  What do you do when a party abuses a privilege ? (0+ / 0-)

    You treat them according to the immaturity and lack of responsibility they exhibit.  You limit their ability to use that privilege.  You give them only so many opportunities to use the privilege in a given time period, so that they value it and use it wisely.

  •  Binding a Future Senates (0+ / 0-)

    I really don't understand how the rules of a past Senate can bind a future senate. How can the decisions on voting rules not in the Constitution made by Senators that are all in their grave be binding today. Can someone explain this? If they are binding then why is the first order of business in parliamentary procedure always to adopt the rules?

    •  They can't. (0+ / 0-)

      But you can still write words that say different, so people get confused.

      And then, people just get used to consenting to the words over and over again, while eminent folks whom everyone thinks are Very Serious tell each set of newcomers that that's just the way it's always been, and it's what keeps the place Very Serious, too.

      And then they tell two friends, and they tell two friends, and so on, and so on, and so on.

  •  Sure it is a slippery slope. (0+ / 0-)

    Grab your sled.  At the bottom is more reasonable government. Let's go!

  •  Preach it! (0+ / 0-)

    Preach it brother Kagro!

    Procedure exists to serve the people, not for its own sake.

    Progress is a continuum, not a light switch. http://www.loudoundemocrats.org

    by Paradox13 on Thu Dec 13, 2012 at 06:39:21 PM PST

  •  Well, what's not being mentioned is .. (0+ / 0-)

    whether the Biden of the past was talking about just simply amending the tactic like Reid proposes to do, or about the complete removal of the procedure.

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