Is it worth mentioning that there's no such thing as a filibuster anymore? Everyone in both parties now agrees that any bill can be passed with a simple majority merely by having the Senate Majority Leader raise a point of order saying so. If this is ultimately sustained by a majority of the Senate, then the bill can be passed with a majority vote.
That's it. Any bill can be passed with a majority vote simply by tacking a few minutes of procedural hocus pocus onto it. Any majority leader can do this at any time, and as often as he or she cares to.
The only real obstacle to this is a sort of gentleman's agreement not to do it. That's it.
No I’m sorry, but that’s not the case. Because that could have always been the case. Which means it was never the case. The filibuster still exists in the exact same way it always existed. Which was always a specific agreement in a specific time and place. Yours is a nonsense way of thinking about it.
Well, filibuster carve-outs have been done multiple times in recent years. So, there’s really nothing to stop these carve-outs from multiplying save either the gentleman’s agreement that Kevin refers to, or lack of sufficient unity in the majority party. I’m not sure this equates to the “death” of the filibuster as such, but we’ve already started down the path to severely wounding it.
Wounded as it is, it is still limping along doing a lot of damage.
Another way of thinking about it is that Democrats will never again be able to block anything with it, the Rs will nuke it when it suits them.
Agreed. We have known for years that a majority can pass legislation, if you can find a majority who wants to weaken the filibuster. A 60-vote norm could be replaced with a new norm where carve-outs are routine.
We have a 60-vote norm. We have carve-outs in special cases only. The nuclear option has been used, but only in a limited way.
The Filibuster Lives! Yes, formally the filibuster depends on the sufferance of a critical number of senators, that has always been true. Saying the filibuster is dead is akin to saying it has never existed.
Kevin seems to be confusing form and content.
Obviously this is supposed to be based on some recent event but I have no idea. If it’s true, it’s a big deal. Does anyone know what this is about ?
I think all he means is it wasn’t lack of 60 votes stopping Democrats from getting a voting rights bill done, but lack of 50 (+ K. Harris) votes. So it’s “dead” in the sense that the filibuster (inability to come up with 60 votes for cloture) is not really what stops important legislation these days. What does that, rather, is insufficient party unity (inability to come up with 50 votes for a carve-out). This latter situation is functionally the equivalent of simple majority rule, or, if you will, it’s the same as if the filibuster didn’t exist at all.
I hope Kevin’s not just now figuring that out. But also, the filibuster represents a real limit on the types of bill the democrats can pass without 12 Republicans.
Obviously, Democratic timidity plays a huge role. For example, there’s an obvious workaround for reconciliation limits—either dump the Byrd rule or replace the hack clerical worker with a Democrat.
I would also reiterate my belief that having failed with an all carrot policy, it’s time for the stick. The asshole from West Virginia would seem particularly vulnerable. His income and personal wealth are inextricably tied to his political power—which he cannot keep without the strong support of national and local Democrats. It seems to me that it’s political pressure which keeps many arguably illegal or impermissible activities from being prosecuted or even investigated. Biden, Schumer, and Pelosi should make it unmistakable that the asshole from West Virginia is no longer under their protection. I’d bet the FBI, DOJ Public Integrity, and the EPA have been anxious to get busy with the asshole once he’s out of politics and we should definitely let them.
But also, the filibuster represents a real limit on the types of bill the democrats can pass without 12 Republicans.
I tend to agree with Kevin the distinction between reconciliation and non-reconciliation legislation is almost completely eroded, though, to the extent that filibuster carve-outs have now seemingly become an ordinary and almost expected part of mainstream discussion when there's an important legislative priority at stake. It's true that Democrats didn't have all fifty senators on board for such a change this time around. It's also true that would be largely the same situation if the filibuster didn't exist: they'd still need to find fifty votes. What's the difference?
I agree formal abolition of the filibuster is a different animal, mostly with respect to political optics. But that's just it: neither party has to formally abolish the filibuster to get what they want, if they really want it: they just fifty votes for a carve-out (or to support the recruitment of a compliant parliamentarian, if that's the route they want to go).
Agreed. There’s an interesting post up at TPM about the politics of the filibuster. Chris Murphy running for the senate in Ohio has been fundraising on abolishing the filibuster and basically arguing that we need to elect more and better democrats with the implication that doing so would enable us to dump the two assholes. I think running against the assholes is probably the democrats last best hope for avoiding oblivion in 2022 and 2024.
Schumer has found an obscure rule in the Senate rules that says if a bill is revised 3 times between the House and Senate then it can't be filibustered the 3rd time it arrives at the Senate. It's probably been known all along but no one's ever dared go there. Looks like we might do it this time. And I say good.
I think you are incorrect. The loophole schumer found allows gutting an existing bill ( they are using a nasa bill) and avoid the filibuster to allow them to introduce the bill and force a vote on cloture ( so you cannot filibuster the cloture stopping the filibuster on the bill). So then they can get an up or down vote on the cloture for the bill itself which gets that on record. But does not let them get around the filibuster of the bill itself.
Thanks. I agree. At least it’s something
Yeah, really looking forward to Sinema and/or Manchin voting against these bills because there isn't enough Republican support -- e.g. something along the lines of "this is not the way to do this!"
To start with, that should be more like: majority leaders who have 51 senators' votes in their pocket, or majority leaders with 50 senators and a vice president, can do that if they can get them all on the floor at once and if they're willing to withstand having tons of mud thrown on them. Maybe. Senate rules appear to be really arcane and according to what I've been reading, they haven't been authoritatively cataloged for something like 30 years. They don't use Robert's Rules.
Rule-making on the fly isn't done very often in recent years, not even by McConnell (who's probably the closest thing to a walking compendium of senate rules since Byrd retired). As much as I appreciate Kevin's point of view, if it were me I'd be a little wary of magisterial hand-waving about a body as rule-bound as that one is.
Of course that's a huge factor in the senate's Gordian-knot dysfunction, its brokenness, and it begs for an Alexandrian solution. Maybe that's what's brewing this weekend, who knows. There's always hope, I guess.
Well yes they can go this .
But not by simply not abiding by a gentleman's agreement as Kevin says.
The 60 % threshold for cloture is specifically in the rules - in writing.
So what Kevin is suggesting is that they vote and get 50 votes plus the vp. And then the parliamentarian rules that , of course, that 50 is not 60% of 100. Then a point of order can be raised that yes, 50 of 100 plus tie breaker really is 60% of 100, totally irrespective of actual math. Or that the rules do not actually read to say there is a 60% threshold , ignoring the actual words. And then have 50 democratic senators simply vote to overrule the parliamentarian and say that something patently untrue is true .
It is not just ignoring a gentleman's agreement, unless you consider the gentleman's agreement to be actually following the rules and not being willing to flat out lie to avoid them.
And , if you want to do that, then I guess the Republicans could go to the Supreme Court and say that really they had 50 of 99 votes against because, you know , Chuck schumer actually died last week , even though he is clearly alive standing there. And 5 of 9 justices can just rule that yes, they agree that Schumer is dead even though that is not true.
If you do stuff like that, there are no actual rules and the only law will end up being who has more military power to kill and willing to do so.
And I do not want to hear about any complaining about trump claiming voter fraud if democrats are willing to vote that 50 of 100 is 60%.
Plus talking about this is stupid as basically embarrassing yourself by admitting how dishonest you are willing to be, when you are not going to get 50 votes for that anyway.
Actually I wish I would hear any senator say that , yes, they will vote to change the rules to eliminate the filibuster or modify it. Which by rule would require a 2/3 vote to do mid session I think. But they are not wiling to vote a flat untruth and interpret the rules to say what they clearly do not.
Come on. The filibuster-nuking maneuver has already been done by the Democrats (for judicial appointments other than Supreme Court) and by the Republicans (for Supreme Court appointments). Why are you ready to be incensed if Democrats do it one more time? Every senator from Ted Cruz to Bernie Sanders has recognized the new reading of the rules, so what do you and I have to say about it, really?
The 60 % threshold for cloture is specifically in the rules - in writing.
Modification of the filibuster by a simple majority is also specifically in the rules — in writing.
No , I do not think you are right. Read senate rule 12. It specifically requires 2/3.
What allows majority is to override the parliamentarian on a point of order re interpretation of the rules as they are written. So, as I said, they can do this by voting to interpret 60% as 50% + contrary to plain truth. A majority cannot modify the filibuster rule itself. A majority can interpret the filibuster rule, and if they have no honor or honestly , can abuse that to effectively change it by flat lying.
They don't have to say "60% is 50%," and they don't. The verbiage used on the floor is rather indirect. Anyway, as I've suggested before, your unhappiness with this doesn't matter because you aren't a senator.
I'll agree with you that it would be nice if the Senate as an institution would clearly abide by its own published rules, as those rules would be commonly understood. But if the Senate abode by common sense, there never would have been a filibuster in the first place.
No , I do not think you are right.
I know I'm right. The first article of the constitution grants each chamber of Congress the power to make its own rules. There's nothing in that clause about a supermajority requirement. Those written words known as "the Constitution" obviously take precedence over lesser written words.
The Senate "rules" can be changed at the start of every session and even within session. There are also many Gentleman's agreements. Basically, it requires all sides to act in good faith. The filibuster itself was an artifact of the rules that people didn't initially realize was there. And it has evolved over time, from Mr. Smith goes to Washington to what we have today. Note--it's main use was to block civil rights legislation back in the day, not to promote noble causes.
Senate rules can be changed at the start of the session. To do so mid session require 2/3 by rule .
But they are not talking about actually changing the rules, contrary to media reporting. The point of order would be on the accuracy of the parlementarian ruling on interpretation of the rules. And those rules explicitly say 60%.
Yes , they will not actually vote to say that 50% is 60% in those words. But they will be voting to overturn the parliamentarian and say that 50 democrats plus vp meets the rules which clearly say 60% . So same thing .
Say a teacher gives a test with question 2+2. And some answer 5. Teacher marks incorrect. Class voted that the answer of 5 is correct . You could say they did not actually say 2+2=5, they just voted that 5 was a correct answer .
If this is true we will see the final end of the filibuster next time the GOP has the majority. O course when the Democrats win the majority again there will be Democratic Senators who will propose to re-introduce it. Sigh!
Kevin, I'm not sure why you seem surprised by this. The Senate is fundamentally a majority rule body that likes to pretend that it isn't. That pretense is just getting harder and harder to maintain.
Since 1998 Republican Senators have represented a minority of voters, but have had a controlling majority of seats for 14 years, vs. 10 for Democrats. Hardly a majority-rule body, and that’s before you get to supermajority requirements.
Neither the Senate nor the Electoral College should be considered as the bulwark against ‘tyranny of the majority’; that is what the Bill of Rights and the courts do.
Forgot the link: https://nymag.com/intelligencer/2021/02/gop-senators-havent-represented-a-majority-since-1996.html