HR1, the massive voting rights bill supported by Democrats, has no chance of passing in the Senate. Republicans will filibuster it, and Democrats don't have the votes to eliminate the filibuster.
However, over at my old home, Ari Berman reports that Stacey Abrams has an idea about the filibuster:
Abrams proposes tweaking it to allow major voting rights legislation to pass, and she thinks her plan can get reluctant Democrats on board. In the same way that Democrats can pass budget bills and confirm judges and Cabinet members with a simple majority, legislation protecting voting rights should also be exempt from the 60-vote requirement, Abrams says.
“The judicial appointment exception, the Cabinet appointment exception, the budget reconciliation exception, are all grounded in this idea that these are constitutionally prescribed responsibilities that should not be thwarted by minority imposition,” she says. “And we should add to it the right to protect democracy. It is a foundational principle in our country. And it is an explicit role and responsibility accorded only to Congress in the elections clause in the Constitution.”
Put aside the fact that there are plenty of other exceptions to the filibuster rule, and almost none of them have been put in place merely because they affect "constitutionally prescribed responsibilities." They've mostly been put in place either out of pique or just because the Senate felt like it.
The bigger issue here is a fundamental misunderstanding of what it means to "eliminate" the filibuster. To explain what I mean, here's the process by which, for example, judges were exempted from the filibuster:
- In 2013, Republicans filibustered three Democratic nominations to the DC Circuit Court and said that they would filibuster anyone else too. This pissed off the Democrats.
- On October 31, Harry Reid moved to reconsider the vote to end debate (i.e., end the filibuster) on one of the judges, Patricia Millett.
- The motion failed to get 60 votes to pass, which meant that debate remained open and Reid could not move on to a confirmation vote for Millett.
- Reid raised a point of order, claiming that only a majority was required to cut off debate for appeals judges.
- The presiding officer ruled that Reid was wrong.
- Reid appealed the ruling.
- It requires a majority of senators to sustain a parliamentary ruling, and this one failed, 48-52, with all Republicans voting to sustain and nearly all Democrats voting not to.
- The presiding officer announced that because his ruling hadn't been sustained, there was now a new rule in place that required only a majority vote to invoke cloture on appellate judges and proceed to a confirmation vote.
Do you see what happened? There is no "filibuster rule" to be "eliminated." The majority party in the Senate can pass any bill it wants at any time with nothing more than a majority vote. To the extent that there's any "rule," it's merely an unspoken agreement not to pass bills by majority vote as long as the other guys don't do it first.
So sure, if they can rustle up 50 senators then Democrats can pass HR1 by majority vote and say that they intend to do it just this once and only for voting-rights bills, but that's meaningless. No matter what they say, Republicans aren't required to buy it. And they won't. Once Democrats have done it a single time, Republicans will feel free to pass any legislation they feel like with no more than a majority vote.
This is what happened with judges. Reid's motion applied only to appellate judges, but that was hardly binding. When Republicans took over the Senate, Mitch McConnell immediately followed Reid's precedent and nuked the filibuster for Supreme Court justices too.
In the end, the mighty filibuster, the scourge of American governance for so many decades, was little more than one of those emperor-has-no-clothes things. As soon as a single person pointed out the truth, everyone blinked and suddenly realized that there had never been anything there in the first place. The majority party had always had the ability to pass anything it wanted with 51 votes. It took nothing more than the will to do it and the recognition that the other party could do it too. Far from requiring a nuclear option, it turns out that ending the filibuster required only the faintest breath to make it vanish in the breeze like a dried out dandelion.
All very true, and of course this elides one of the main reasons the "tradition" of the filibuster became so well established and respected, ie that it allowed segregationists to delay civil rights legislation for decades. (After all, nothing says "America" like quietly enabling racism, but I digress.) That history alone might be reason to get rid of it, but the argument today is less overtly immoral;
Also, Republicans have clearly abused the filibuster in recent years, and given their current (and increasing) radicalism, I have no doubt that they would jettison it in a minute if they saw some short-term advantage to doing so. But again, that alone is not sufficient reason for Dems to do likewise, or to do so preemptively.
The argument today as I understand it is that there are issues in which a bare majority ought not to be enough make law. There are already some Constitutional supermajority requirements -- veto overrides, impeachment, Constitutional amendment -- so clearly it's not the case that "majority rules" apply absolutely everywhere. The question is, are there such issues at a more mundane legislative level, and if so what are they and where are the bright lines?
Offhand, I sort of like the concept of "Constitutional" issues -- begging definition -- being such a category. Naturally any definition would be subject to debate (and abuse), but there is already a similar process with respect to "reconciliation" bills, and it's pretty obscure. Maybe there could be some sort of "parliamentarian"-like role, eg a panel of retired Federal judges or something, who (at the direction of Congress, and of course like everything ultimately subject to a majority vote on rules) identify such issues and opine on disputes: this is "Constitutional" and hence subject to filibuster, that is not.
I gotta say, though, when it comes to voting rights, it smells an awful lot like the anti-civil-rights filibusters of the last century, and that ain't good. Getting rid of the filibuster on at least this issue seems like a no-brainer.
I just don't want the filibuster to become the blue slip: honored by majority Democrats on the Judiciary Committee, & pitched in the rubbish bin by majority Republicans.
What Joe Manchin does not seem to understand: Next time the GOP has the majority they will nuke the filibuster anyway. It is foolish to keep it alive. It won't restrain the GOP at all. Why should the Dems sabotage themselves when there is not return on that investment?
I actually doubt that Republicans would remove the legislative filibuster - it doesn't really stop most of their priorities: spending, taxes, appointing judges. The current exceptions to the filibuster line up very well with their interests, which is a good reason from them to keep hammering that it should stay in place.
"there are issues in which a bare majority ought not to be enough make law"
In the US Senate, any time "a bare majority" of 50 Dems vote "aye", that IS a "supermajority." Of Americans. The Senate is already ludicrously undemocratic, giving states with tiny populations equal representation with the very biggest states. And surprise! Republicans dominate the itty-bitty or empty states while Dems mostly win where people actually live.
If the Senate won't get rid of the filibuster, we should get rid of the Senate.
Twelve Democrat Senators from California, New York, Illinois, Michigan, Georgia, Virginia, compared to four Republican Senators from Texas & Florida is proof of this.
Throw in split decisions in Ohio & Pennsylvania & it real solidifies it.
well let's just put that on our to-do list for this afternoon ...
+1
The Senate is anti-democratic enough as it is, as you say. One quibble: the ten smallest states are represented by as many Democrats as Republicans; Democrats also do well in the most populous. It’s in middling-populous states that conservatives/Republicans gain their advantage*. It may not be coincidental, but these states are concentrated in the South and Mountain West, where there has been more open racism (against, respectively, African-Americans and Native Americans) than elsewhere, not that racism isn’t a problem everywhere in the US.
*I put together a spreadsheet for this analysis, I’ll try to get around to posting a link.
What happened in 2013 and again in 2017 was that the presiding officer in the Senate said the plain, unambiguous language of the rules said an orange was an orange, and a majority of senators declared no, they said an orange was a banana. This is Alice's Mad Queen territory. It might be the least bad option, given it takes 67 votes to amend the Senate's rules, but it makes a mockery of the legislative process and is almost guaranteed to have unanticipated, bad consequences down the road.
Question for somebody knowledgeable about Senate procedure. Is the "67 votes to change the rules" rule as vulnerable to the "nuclear option" as the filibuster?
Yeah but this is one of those things -- like the idea of Republican reasonableness, and the need, always, to split the difference between Republican and Democratic proposals in order to deserve the label "moderate" -- that, because the media accepts it so much and builds its agenda around it, that it might as well be established fact handed down from the old Testament. (What do I mean by "builds its agenda around it"? If the Democrats did what Stacey Abrams suggests, the media would write/broadcast about a zillion pieces asking "have the Democrats gone too far?" not explaining what KD just explained... that the filibuster is really a myth that gets tossed aside whenever the party in power thinks its a good idea to toss it.)
I assume that what's really going on here is Biden (Klain?) is smartly lining up popular issues to be filibustered next year by the Republicans: $15 minimum wage, extension of the Obamacare supersubsidies, the new Social Security for kids. That will allow Biden to give a big speech and say "The Republicans are now the anti-family anti-healthcare party. I won't let them use old segregationist tactics to stop what the American people want and need to move into the future." And that will work pretty well, if you ask me.
Forcing Republicans to kill popular stuff by filibustering it to death might be politically a good second choice to actually passing popular stuff but the way the filibuster works now, the Democratic leadership simply counts the votes and if there aren't 60 votes they say too bad. But there no vote tally or anything to show that the Republicans filibustered or that the Democrats fought the good fight but couldn't overcome the filibuster.
But the flip side of that is that there's fifty Democrats in the Senate right now and they aren't passing the $15 minimum wage, extension of the Obamacare supersubsidies, the new Social Security for kids or much of anything else. And the reason isn't that they can't overcome Republican opposition but rather that too many Democratic senators value the courtly traditions of the Senate far more highly than any of the things you mention.
People spent time, money, and sweat to get Democrats into the driver's seat but instead of doing all those terrific, very popular things, the main accomplishment of the Democrats from March of 2021 forward is likely to be the preservation of the filibuster and the senate's courtly traditions. So what's the point of electing Democrats if they're not going to deliver? People don't want excuses, they want results.
Could be but we'll have to see where we are in a year's time.
I think we disagree that this bill is a nothingburger. $3600/year/kid is pretty amazing to me. I well remember Reagan saying government is the problem and then hearing that repeated for decades. It's a new world, to me anyway.
Just to be clear: I’m not saying this rescue package is a nothing urge restraint, far from it. This is a really, really big deal. This point I was making was that if this is all that the Democrats are able accomplish between now and November of 2022, it’s not going to be enough.
Neither will it be enough to point the finger at the obstructionist Republicans when the “but for” cause this obstruction is that some of the Democrats in the senate are the ones who are blocking so many of the party’s top priorities. That leaves the party looking insincere and it throws Biden under the bus in 2024.
I disagree. 50/50 legislature says the American people don't want a huge agenda. Sadly, you don't get that.
Evidently I’m not the only one, if the polls are even close to being accurate. The rescue package is extremely popular. It’s also what Biden campaigned on and he was elected by a huge margin.
I agree with you on that -- that Dems will need more next year, if only because of the dumb "news cycle". That's why I expect -- and hope -- that Biden/Klain/Harris? are setting this stuff up purposely to be big issues next year.
Krugman has an analysis similar to yours. He says the economy will roar this year, and slow noticeably (in comparison) next year, and as a result of that analysis, he says Dems should go for a big infrastructure plan which kicks in next year.
If Biden is setting these things up for later this year, good on him. But if the Democrats value the courtly traditions of the Jim Crow senate more highly than Biden’s agenda it’s going to be a hard row to hoe blaming Republicans as obstructionist when there fifty Democrats who could pass the agenda without a single Republican vote if they so chose. .
^^^So what's the point of electing Democrats if they're not going to deliver?^^^
You genuinely think Biden's $1.9 trillion bill -- which among other things may end up constituting the most significant expansion of the US safety net since LBJ -- is an example of Democrats failing to deliver?
Again, the larger context of this discussion is the course the Democratic Party should steer now that the rescue package has passed. I certainly agree that it was a monumental historic moment. It opened the door to Joe Biden’s having an FDR style presidency.
Evidently I did not express myself well but my larger point was that the Democrats obsession with preserving the courtly senatorial traditions of the Jim Crow era are likely to slam the door on the possibility of Biden’s actually being able to have the FDR-like presidency he evidently desires.
More specifically, I was responding to the idea that Biden was cleverly preserving the traditions of the senate while preparing devastating political on the Republicans for filibustering a bunch of popular stuff. But the reality is that the Democrats are the ones who are blocking those popular things because they value the senate’s courtly traditions more highly than anything else. If nothing else really gets done when the Democrats control Congress and the White House house because the party refuses to end the filibuster, what is the affirmative case for more Democrats?
Much as Mitch Mc Connell thinks 41> 59, Mitch Guthman thinks 600 billion > 1.885 trillion.
Old segregationist tactics will not be included in that phrase
"50/50 legislature says the American people don't want a huge agenda."
Wrong. The Senate is split 50/50, but it does not evenly represent the electorate. 6 million more people voted for Democratic Senate candidates than Republicans in 2020, and the 50 Democratic Senators represent >20 million more people than the 50 Republicans.
Meant to reply to your earlier post, but WordPress ain't having it.
Your point is null and void. Outside fiscal policy, support for "the agenda" is weak.
I understand what Kevin is saying here, but I think he’s missing the point. Abrams and others are looking for some fig leaf for prissy pants Dems like Manchin and Sinema so they can essentially do away with the filibuster without saying they’re doing away with the filibuster. Putting in this “constitutional exception” is just a way to effect the murder without getting anyone’s hands dirty. In fact, it actually makes it look like a mercy killing: “regrettably, I had to nuke the filibuster because my love for the constitution outweighs every other consideration.”
I don't think he's missing that point. He apparently believes Manchin/Sinema (and maybe others) oppose a voting rights bill on substance, or else they're afraid of the political consequences of voting for a bill that Fox News will claim encourages election fraud. Ergo they're glad they can blame it all on "reverence for Senate rules."
Where I differ with him is I believe "fear of being seen as irreverent vis-a-vis senate tradition and the prerogatives of the minority" is ITSELF a motiving factor for the likes of Sinema and Manchin, quite apart from the substance of or political outcomes flowing from any individual pieces of legislation.
Supplying votes for a Democratic move to spike the filibuster would reinforce the "Demoratic-ness" of their political branding. And they want to avoid that because such a dynamic, they believe, detracts from the "mavricky" image they're trying to cultivate (which in turn they fear would hurt them in a general election).
5. The presiding officer ruled that Reid was wrong.
Who was the presiding officer that ruled his/her own majority leader was wrong? Was it Leahy (president pro tem at the time) or some other Dem senator? Something about this doesn't sound right. I can't see why the Dem majority leader would appeal to another Dem senator and be denied his appeal.
Or do you mean parliamentarian?
The difference between the two parties is so striking it makes a farce of this battle about Senate rules that are supposed to apply to both sides. Back in 2001, when Republicans did not like a ruling by the parliamentarian, Trent Lott fired him. Democrats treat the rules as if they came down to Moses on stone tablets and must be adhered to or they'll suffer eternal damnation.
The Senate rules are made by the Senate to apply to the Senate and can be appealed to no authority beyond the Senate. The Senate majority has the power to do what it wants. If the majority says the rules prevent it from doing what it wants, that is only true if the majority agrees to be constrained. If the majority is hostage to the rules, it is the hostage taker as well.
There is no rule that says you have to follow the rules.
It's funny that the NY Times always says in their Cletus Safari dispatches that voters in the heartland what politicians who respect the norms, but the ones they elect are never the norm-upholders.
That's what happened in 2013. The presiding officer said the rules mean what they plainly say, and Democrats voted no, they don't mean what they say. You're correct that the Senate can do this any time a majority agrees to do it, but such a resort to anarchy would be a tacit admission Congressional dysfunction can't be fixed.
^^^So sure, if they can rustle up 50 senators then Democrats can pass HR1 by majority vote and say that they intend to do it just this once and only for voting-rights bills, but that's meaningless.^^^
I continue to think Kevin underplays the relevance of the existence of the filibuster. Yes, it's a non-constitutionally grounded, seemingly "fake" and arbitrary bit of bullshit. But it has a bearing on our politics because of *optics*.
A lawmaker like Joe Manchin might feel as though "Democrats game the rules in a power grab to commit election fraud!" is a potentially damaging line of attack. The reality is the filibuster has been around for nearly two centuries, so messing with it generates the kind of media attention and headlines that penetrates the fog for low-information voters.
It definitely *should* be done away with, mind you (or modified so much that it's largely meaningless -- my preferred solution at the moment).
But political phenomena are *real* phenomena in a polity like ours.
Certainly but you have to ease skittish Senate dems onto it. I've been agitating for fili-nuking for over a decade for exactly this reason.
The next election is in November of 2022. Time is tight. The window for passing and implementing good policies that hopefully will be appreciated by the people before the midterms is small and shrinking.
Somewhat disagree. Americans have short memories. Anything passed more than 6 months before the election will have mild effects. Legislation doesn't have to waste time like Obamacare. If they'd operated in the proper understanding that republicans are fucking scum it would have cut months from the process.
Also whether it's more effective or not there's no other way to do it than to ease skittish dems into it.
Myself I supported Bernie's plan he articulated as a candidate which was to instruct the senate parliamentarian to rule things reconciliation and over rule or remove them if they did not.
Given the enormous stakes of the upcoming midterms, I think it would be more time efficient to ease skittish Democrats into abandoning their beloved relics of Jim Crow with a baseball bat. As Al Capone once sagely observed: “You can get more done with a kind word and a gun than with a kind word alone”.
This whole system sounds rather silly. But what do I know?
I must be an idiot.
For a long time, you needed 67 votes, not 60 votes, to stop debate.
It was absurdly rare for any party to have 2/3 of the Senate.
So the minority party could stop anything it wanted.
Why didn't it?
I can understand a system where the minority can object if it REALLY wants to but can't object to everything.
How did this country survive for over 200 years before EVERYTHING needed 60 votes to pass?
I'm not a historian, but I lived through that era and have some, possibly inaccurate, memories.
Back when you needed 67 votes to break a filibuster, the filibuster required the minority to actually continuously hold the floor and prolong the "debate" on the bill. This was often done in ridiculous ways like reading the phone book. But it was physically demanding because somebody had to immediately take the floor to continue if the current speaker needed to sleep. Bathroom breaks were problematic. It was a physically demanding exercise and that restrained its application to situations that the minority felt desperately strongly about.
The Senate then changed the rules with a compromise. They reduced the vote requirement to 60 votes, so filibusters were easier to end, but they also eliminated the requirement for a physical filibuster--you just had to vote against cloture, no physical filibuster required. So filibusters became essentially cost-free.
Now back in that era, it's also true that the Rs and Ds overlapped considerably on ideology and relatively few issues were as contentious as today. So even with filibusters being easy, one the hurdles of the Civil Rights Act and Voting Act were surmounted, there weren't many issues that couldn't be dealt with in a bipartisan manner.
Of course, since the 90's, the parties have been much more ideologically divided, so that today there is almost no overlap. Nearly every question is hugely controversial. And partisanship has grown to the point that even where there isn't a genuine controversy, just trying to frustrate the agenda of the majority has now become a goal in its own right! So the filibuster came to be used more and more frequently. To the point where it's basically evolved into the default situation: everything is filibustered unless there is a "rule exception" or some rare special circumstance mitigates the usual partisan deadlock over it.
Good review. It’s important to know that the filibuster is just the exploitation of the Senate’s tradition of exhaustive debate, not limited by any standing rule. Requiring a supermajority to end debate is not unreasonable in eras of less partisanship - if passage hinges on the vote of one or two Senators, perhaps more argument might persuade them to change their intentions. But unlinking cloture votes from real debate was a grave error. Continuing debate, which is what a cloture vote is about, should require real, substantive debate to continue. Maybe a rule which allows a filibustering Senator to refer only to notes written in longhand. With a quill. No charts - DIY with a whiteboard and markers.
Sometimes the doings of that august body are as irrelevant and stupid as they appear.
I keep seeing the 2013 thing being mentioned, but overriding the filibuster goes back further. It used to be that the minority party would slow down Judge appointments. They’d only let so many through each year. And if the majority Senate was a different party then the President they’d do the same thing. They’d only approve so many. This dates back to at least Reagan, but probably goes back much further.
During Dubya’s Presidency, the Dems said a group of appointments were so extreme that they would never allow a vote for those judges and that Bush would have to appoint someone else. As far as I know, this had happened many times in the past and they didn’t blow up the filibuster. This time the Republicans put their foot down and said if they don’t approve them they’d do what the Dems ended up doing in 2013. The Dems backed down and some “centrist” senators from both parties made an agreement. I think the agreement was just that the Dems would allow all the appointments through, which wasn’t much of an agreement.
In any case, that was the point where judges, at least R judges, could no longer be stopped by Dem filibustering. So 2013 was removing something that no longer really existed. After the Bush era showdown the filibuster was really just for show. No one doubted that if the minority party really said no it would be removed. Much like the Supreme Court filibuster.
I just wanted to set the record straight.