The Filibuster Stays

Paul Kane at WP:

President Trump might need to hire a vote counter in the West Wing. That person would be able to explain to the president why Senate Republicans are in no rush to eliminate the legislative filibuster despite his constant pleas.

Their reluctance is not just some longing for the better, bygone days of bipartisanship, but also a recognition that Republicans have passed just about all they can on a simple majority.

Senate Republicans are too divided to pass party-line legislation, whether on a border wall or the repeal of the Affordable Care Act, and instead need Democratic support to get just about anything done. All of that makes the “nuclear option,” as the heavily partisan way of changing Senate rules is known, pretty pointless. There’s nothing that they can’t pass with 60 votes that they can pass with 51 votes.

The Filibuster Myth

There are good arguments for keeping the Senate filibuster.  A bad argument is that it was part of the constitutional design.  It was not.  Eugene Kiely at Factcheck.org:

On ABC’s “This Week,” Democratic Sen. Dick Durbin defended the parliamentary practice, claiming getting rid of the filibuster “would be the end of the Senate as it was originally devised and created going back to our Founding Fathers.” But the filibuster wasn’t part of the Senate rules when it was created.

The House and Senate in the first Congress in 1789 both had a rule that allowed a simple majority to end debate and call for a final vote, according to Sarah Binder, a professor of political science at George Washington University who wrote a book on the history of the filibuster. The rule was rarely invoked, and it was dropped by the Senate in 1806, allowing for unlimited debates. But filibusters didn’t become an issue until the mid-1800s, when the Senate “grew larger and more polarized along party lines,” Binder said in testimony before the Senate Committee on Rules and Administration in 2010.

“The most persistent myth is that the filibuster was part of the Founding Fathers’ constitutional vision for the Senate,” Binder told the Senate rules committee.

Sasse and the Founders' Vision

Senator Ben Sasse (R-NE) writes at The Wall Street Journal:

Conservatives might be tempted to curtail minority rights for supposedly conservative policies, but that’s playing with fire. Any short-term political gain from undoing the filibuster comes at long-term expense. Making the Senate more efficient might get a few bills to the president’s desk this year, but at the risk of accelerating our devolution into a European-style winner-take-all system. Oh, and by the way, President Obama would veto these conservative bills anyway.

The filibuster is an outgrowth of the Founders’ vision of two distinct, complementary legislative bodies. The House is built for offense. It closely reflects public opinion with a two-year term. The Senate is built for defense. It exists to cool the popular passions of the House, and to serve as a brake on a too-powerful executive.

The Senate is not superior to the House, but it is different. Without the filibuster, the gap between House and Senate diminishes and with it our constitutional safeguards.
Rather than abandon the filibuster, conservatives should understand that deliberative debate exists to protect the Constitution, and preserve the nation’s fundamentally conservative principles. We reject the notion that Washington can manage all of life’s challenges. We dismiss the fantasy that we are only one election or one strongman away from solving life’s problems by power politics.

We should embrace debate. We should celebrate limited government. We should seek to persuade. And we should use the floors of Congress in 2016 to tell the American people what we would pursue if they send a Republican to the White House in November.

Sasse has raised serious questions about Trump.

Tweets for Trump:

Ben SasseVerified account‏@BenSasse

.@realDonaldTrump Do you agree that exec unilateralism is very bad? Because you talk A LOT about “running the country” as though… (cont)

• RETWEETS244
• LIKES182
• 

5:42 PM - 24 Jan 2016

1. Ben Sasse ‏@BenSasse  Jan 24

   .@realDonaldTrump The President's job is NOT 2"run Amerca."This is precisely Obama's error. The "presiding officer" of the Exec Branch(cont)

   241 retweets249 likes

    

    

    
2. Ben Sasse ‏@BenSasse  Jan 24

   .@realDonaldTrump The whole point o America is that THE PEOPLE r bigger than the govt.It's THE thing that makes us exceptional across histry

   237 retweets266 likes

    

    

    
3. 
   
4. Ben Sasse ‏@BenSasse  Jan 24

   .@realDonaldTrump ...they deserve str8 answers. America doesnt need a strongman. We need a Constitution. Someone who knows the meaning(cont)

   219 retweets239 likes

    

    

    
5. 
   

Reid and Congressional Productivity

The Washington Examiner has an editorial on Senate productivity:

The classic but misleading metric for a Congress is the number of laws it enacts. This Congress has been better on that score than its immediate predecessors so far. But as Congress leaves for its August recess, it is wiser to measure its value based on precisely what it has accomplished, and what aspirations lawmakers can realistically harbor based on the tone of the place today.

For example, Congress took a huge step toward opening up America's trade footprint when it approved Trade Promotion Authority earlier this summer and extended a long-running African trade agreement. Members fully expect to vote on at least one major trade deal before President Obama leaves office.

Before that, the House and Senate approved a bicameral budget for 2016. This might not seem like much, but it marks the first time Congress has actually fulfilled its budget responsibilities since Obama took office. Congress also approved the Keystone Pipeline (Obama vetoed that one), and passed a so-called "doc-fix," which had been kicked down the road for years. It also passed a bill helping the victims of human trafficking.

Looking forward, there's no question that this Congress has a considerably less toxic atmosphere than the last one. Instead of contemplating a government shutdown or a default, lawmakers are talking about what they might be able to pass.

The major difference is that the Senate's new leadership has chosen a decidedly less autocratic style. The former Senate majority leader, Harry Reid, D-Nev., will be remembered best for blocking amendment votes. He essentially offered the minority only two choices — accept his demands or else stop action on bills altogether. This not only blocked individual senators' contributions to the process (including Democrats who might have benefited from the opportunity to contribute), but it also became a huge source of tension between the parties. Reid's decision to trample the minority's rights by invoking the so-called "nuclear option" did not help matters, either.

At Pew, Drew DeSilver provides data:

It turns out there are early hints that congressional productivity may be on an upswing, after two successive Congresses that enacted the fewest- and second-fewest laws in at least four decades. As of Aug. 5, according to the Library of Congress’THOMAS database, Congress had enacted 41 laws. We categorize 29 of them as “substantive” by our deliberately generous criteria – that is, any legislation other than renaming buildings, giving out medals, commemorating historic events and other purely ceremonial acts. At least three more substantive measures have passed both chambers and await President Obama’s signature (though more may be working their way through the Pennsylvania Avenue pipeline).

By contrast, the 112th Congress had passed just 28 pieces of legislation – 19 of them substantive – by the time its August 2011 recess rolled around, matching the level of the 104th Congress in 1995. The 113th Congress was slightly more productive, passing 31 laws (24 of them substantive) by its first August recess, which is formally known as a district (or state) work period.

Congress: the Constitution, and Contemporary Politics -- Legislative Process, Rules, Procedures, and Decision Making

Notes for a seminar at the Robert H. Smith Center for the Constitution, Montpelier, Virginia.

This weekend, RCP published an article on congressional reform.



In reality, shortcuts

Filling the tree

Filibuster:

• The Filibuster: where you stand depends on where you sit
• Reid on the Filibuster

Visit NBCNews.com for breaking news, world news, and news about the economy

• Vote-a-Rama (A very recent example: Keystone)
• Hotlining
• Phonemarking
• Ping-ponging
• BTU'd

Federalist 58:

One observation, however, I must be permitted to add on this subject as claiming, in my judgment, a very serious attention. It is, that in all legislative assemblies the greater the number composing them may be, the fewer will be the men who will in fact direct their proceedings. In the first place, the more numerous an assembly may be, of whatever characters composed, the greater is known to be the ascendency of passion over reason. In the next place, the larger the number, the greater will be the proportion of members of limited information and of weak capacities. Now, it is precisely on characters of this description that the eloquence and address of the few are known to act with all their force. In the ancient republics, where the whole body of the people assembled in person, a single orator, or an artful statesman, was generally seen to rule with as complete a sway as if a sceptre had been placed in his single hand.

Draper on Boehner:

 He often summed up his practical (and to some, passive) view of leadership by saying: “If you say, 'Follow me,' and no one does, you're not leading—you're just taking a walk.” 

Interest Groups and Congress (caution:  strong language!)


Congressional Approval Ratings 

Rejecting a Nominee

Byron York reports at The Washington Examiner:

Senate Democrats killed the filibuster for nominations because they wanted to be able to confirm the president's choices for top administration positions even if Republicans were united in opposition. From now on, Democrats ruled, nominations would be confirmed by a simple majority vote. With 55 Democrats in the Senate, and as few as 51 required for confirmation, the change virtually guaranteed success for the president's nominees.

But even a rule change was not enough to save the nomination of Debo Adegbile, the former NAACP Legal Defense Fund official who was the president's choice to head the Justice Department's Civil Rights Division. Seven Democrats -- Bob Casey, Joe Donnelly, Heidi Heitkamp, Chris Coons, Joe Manchin, Mark Pryor, and John Walsh -- abandoned Abegdile Wednesday in a vote to move forward with the nomination. (Majority Leader Harry Reid switched his vote to 'no' at the end, but that was just a procedural maneuver to allow for possible future reconsideration of the matter.) The final vote on Adegbile, including Reid's switch, was 52-47.

Five of the seven Democrats -- Donnelly (Indiana), Manchin (West Virginia), Pryor (Arkansas), Heitkamp (North Dakota), and Walsh (Montana) come from states that Mitt Romney carried.  

Casey represents Pennsylvania, an Obama state. But it was also the state of Philadelphia police officer Daniel Faulkner, who died at the hands of Mumia Abu-Jamal.  Adegbile worked on a legal brief in Abu-Jamal's defense.  Delaware is in the Philadelphia media market, which may also explain Coons's vote.

Whatever Happened to the Gang of 14?

As a previous post noted, Majority Leader Reid recently exercised the "nuclear option" to end filibusters of most executive and judicial nominees.  In 2005, the prospect of such a move prompted a bipartisan group of senator -- The Gang of 14 -- to reach an agreement: the seven Democrats agreed not to block certain judicial nominees and the seven Republicans promised not to vote for the nuclear option.

Without the former, the Democratic minority could not sustain a filibuster.  Without the latter, the Republican majority could not pass the nuclear option.

So why did the Gang of 14 not re-emerge in 2013?  For one thing, nine of its members have left the Senate, either through death (Byrd, Inouye), retirement (Lieberman, Nelson, Warner, Snowe), appointment to other office (Salazar), or defeat (Chafee, DeWine).  Only the bolded names are left.

Democrats

1. Robert Byrd (West Virginia) -- died June 28, 2010
2. Daniel Inouye (Hawaii) -- died December 17, 2012
3. Mary Landrieu (Louisiana)
4. Joseph Lieberman (Connecticut) -- did not seek reelection in 2012
5. Ben Nelson (Nebraska) -- did not seek reelection in 2012
6. Mark Pryor (Arkansas)
7. Ken Salazar (Colorado) -- resigned in 2009 to become Secretary of Interior

Republicans

1. Lincoln Chafee (Rhode Island) -- defeated for reelection in 2006
2. Susan Collins (Maine)
3. Mike DeWine (Ohio) -- defeated for reelection in 2006
4. Lindsey Graham (South Carolina)
5. John McCain (Arizona)
6. John Warner (Virginia) -- did not seek reelection in 2008
7. Olympia Snowe (Maine) -- did not seek reelection in 2012

Senator Obama on the Filibuster

Yesterday, Senator Reid invoked the "nuclear option," ending the filibuster for judicial and executive nominees.  As previous posts have explained, Republicans and Democrats alike have changed sides on the issue, depending on which party is in the majority at the moment.  President Obama is no exception.  He announced his support for the nuclear option, but as a minority-party senator, he denounced it.  Below is the full text of his remarks (Congressional Record (daily) April 13, 2005, pp. 3511-3512):

Mr. President, I rise today to urge my colleagues to think about the implications of what has been called the nuclear option and what effect that might have on this Chamber and on this country. I urge all of us to think not just about winning every debate but about protecting free and democratic debate.

During my Senate campaign, I had the privilege and opportunity to meet Americans from all walks of life and both ends of the political spectrum. They told me about their lives, about their hopes, about the issues that matter to them, and they also told me what they think about Washington.

Because my colleagues have heard it themselves, I know it will not surprise many of them to learn that a lot of people do not think much gets done around here on issues about which they care the most. They think the atmosphere has become too partisan, the arguments have become too nasty, and the political agendas have become too petty.

While I have not been here too long, I have noticed that partisan debate is sharp, and dissent is not always well received. Honest differences of opinion and principled compromise often seem to be the victim of a determination to score points against one's opponents.

But the American people sent us here to be their voice. They understand that those voices can at times become loud and argumentative, but they also hope we can disagree without being disagreeable. At the end of the day, they expect both parties to work together to get the people\'s business done.

What they do not expect is for one party, be it Republican or Democrat, to change the rules in the middle of the game so they can make all the decisions while the other party is told to sit down and keep quiet.

The American people want less partisanship in this town, but everyone in this Chamber knows that if the majority chooses to end the filibuster, if they choose to change the rules and put an end to democratic debate, then the fighting, the bitterness, and the gridlock will only get worse.

I understand that Republicans are getting a lot of pressure to do this from factions outside the Chamber, but we need to rise above "the ends justify the means" mentality because we are here to answer to the people-all of the people, not just the ones who are wearing our particular party label.

The fact is that both parties have worked together to confirm 95 percent of this President's judicial nominees. The Senate has accepted 205 of his 214 selections. In fact, we just confirmed another one of the President\'s judges this week by a vote of 95 to 0. Overall, this is a better record than any President has had in the last 25 years. For a President who received 51 percent of the vote and a Senate Chamber made up of 55 percent of the President's party, I would say that confirming 95 percent of their judicial nominations is a record to be proud of.
Again, I urge my Republican colleagues not to go through with changing these rules. In the long run, it is not a good result for either party. One day Democrats will be in the majority again, and this rule change will be no fairer to a Republican minority than it is to a Democratic minority.

I sense that talk of the nuclear option is more about power than about fairness. I believe some of my colleagues propose this rule change because they can get away with it rather than because they know it is good for our democracy.

Right now we are faced with rising gas prices, skyrocketing tuition costs, a record number of uninsured Americans, and some of the most serious national security threats we have ever had, while our bravest young men and women are risking their lives halfway around the world to keep us safe. These are challenges we allwant to meet and problems we all want to solve, even if we do not always agree on how to do it. But if the right of free and open debate is taken away from the minority party and the millions of Americans who ask us to be their voice, I fear the partisan atmosphere in Washington will be poisoned to the point where no one will be able to agree on anything. That does not serve anybody\'s best interest, and it certainly is not what the patriots who founded this democracy had in mind. We owe the people who sent us here more than that. We owe them much more.

Filibuster?

Senator Ted Cruz (R-TX) just finished a very long speech about the Affordable Care Act. A number of posts have discussed Senate filibusters, but Chris Cillizza of The Washington Post reminds us that the term is not a formal one.

But, here’s the dirty little secret of a filibuster — there is no real definition of it. Here’s how the U.S. Senate defines it: ”Informal term for any attempt to block or delay Senate action on a bill or other matter by debating it at length, by offering numerous procedural motions, or by any other delaying or obstructive actions.”

We put the question of what is a filibuster to Paul Kane, resident WaPo congressional genius, and he drew a comparison to the talk-a-thon put on by Vermont Sen. Bernie Sanders back in 2010 to protest the tax deal. A cloture vote had already been scheduled when Sanders started talking — and went on after he finished.

“What Sanders did then is what Cruz is doing now — trying to convince his colleagues to vote against the cloture motion,” PK wrote to us in the wee hours of Wednesday morning. “If by some modern miracle Cruz were to succeed and tomorrow afternoon 41 senators voted no, what would we say happened? We would say they filibustered the [congressional resolution].”

And here’s more from PK:

Here’s how strange this situation is. When Majority Leader Harry Reid’s office touts the growth of filibusters in the modern Senate, his advisers count the number of times he has to file a motion to break a filibuster and when those votes are held to invoke cloture. (See this great chart that Wonkblog put together in July to see the growth in those motions and votes.) So, when the Senate votes this afternoon on a 60-vote hurdle to continue advancing the bill, Reid’s office will count that vote as an attempted filibuster. Yet Democrats are arguing that the marathon speeches leading up to that vote, themselves, do not amount to a filibuster.

Deliberation and Collaboration in the Senate

Jason Grumet of the Bipartisan Policy Center writes at The Hill about the recent filibuster controversy in the Senate.

This latest act of brinksmanship demonstrates that our filibuster fixation confuses a symptom with a far deeper problem. While senators have chosen to hold up presidential appointments more frequently of late, the same basic rules were in place during decades when the Senate wasn’t nearly so gridlocked. What has changed is that the personal interactions that once enabled the Senate to function despite harsh ideological divides have become relics of another era. And so filibuster reform will only paper over the Senate’s need to develop a landscape that allows for honest deliberation.

Sens. Dean Heller (R-Nev.) and Martin Heinrich (D-N.M.) have seized the initiative by urging the Majority Leader Harry Reid (D-Nev.) to conduct joint bipartisan activities on a more consistent basis. They note that during the meeting in the Old Senate Chamber, “senators from both sides of the aisle were able to have a respectful, yet frank and open discussion about issues that substantially impact the Rules that govern this Chamber.”

Sens. Reid and Mitch McConnell (R-Ky.) should seize this opportunity and schedule monthly senator-only meetings. Let them do what their predecessors used to do more regularly—deliberate privately over the issues of the day. Surely some will complain about closed door meetings, but we must allow our leaders some room to govern. Moreover, no conversation among 100 people in Washington stays secret for long.

Knowledge of the Filibuster

Recent posts have discussed the filibuster. As with so many issues, many Americans know little about it.  The Pew Research Center reports:

In January 2011, the most recent time Pew Research asked people how much they’d heard about proposals by the Senate’s Democratic leadership to change the filibuster rule, nearly half (49%) said they hadn’t heard anything at all; more than a third (36%) said they’d heard only a little bit. That was down considerably from March 2010, when at the height of debate about the Affordable Care Act — and Republican threats to filibuster the healthcare-reform legislation — fully a third of Americans told an NBC News/Wall Street Journal poll that they’d heard “a lot” about filibustering, and another 26% said they’d heard “some” about it.

In January 2010, when Pew Research asked how many senators are needed to break a filibuster, only about a quarter (26%) knew the correct answer, 60. Almost as many thought only 51 votes were needed — in fact, the rules change that Senate Majority Leader Harry Reid is threatening to adopt, at least in regard to presidential appointments — while more than a third (37%) wouldn’t even venture a guess.

When people are asked directly whether they support or oppose filibusters, their answers haven’t been consistent. For example, a Quinnipiac University poll from March 2010 found 51% saying eliminating the filibuster would be a bad idea, versus 39% saying it would be a good idea). But in January 2011, in another Quinnipiac poll, support for the filibuster had narrowed, with 42% saying ending it would be a good idea and 45% calling it a bad idea.

Where You Stand Depends on Where You Sit

Longtime Washington official Rufus Miles coined a memorable maxim:  "Where you stand depends on where you sit."  This notion applies most strongly to opinions on procedure.

A previous post noted that Senate Majority Leader Harry Reid (D-NV) defended the filibuster when he was in the minority, but wants to curb it now that he is in the majority.  As Chris Cillizza points out at The Washington Post, Senate Minority Leader Mitch McConnell (R-KY) has flipped in the opposite direction:

Then there was McConnell in 2005, defending the idea of changing the rules.

McConnell made virtually the same argument then that Reid is making now. He cited the Constitution as laying out the ability to change Senate rules by a simple majority. He noted that the rules of the Senate have been changed many times in the past. He derided the “incredulous protestations” of those who opposed such a move.

The lesson? How you feel about the filibuster depend almost entirely on whether you are in the majority or the minority. It’s either blockading for the sake of blockading that leads to gridlock or an important tool that allows the minority to be heard and without which the Senate will lose its identity.

Reid on the Filibuster

Senate Majority Leader Harry Reid is preparing to limit the filibuster.  When he was in the minority, he supported it.  On May 18, 2005, he said:

The filibuster is far from a “procedural gimmick.” It is part of the fabric of this institution. It was well known in colonial legislatures, and it is an integral part of our country’s 217 years of history.

The first filibuster in the U.S. Congress happened in 1790. It was used by lawmakers from Virginia and South Carolina who were trying to prevent Philadelphia from hosting the first Congress.

Since 1790, the filibuster has been employed hundreds and hundreds of times.

Senators have used it to stand up to popular presidents. To block legislation. And yes – even to stall executive nominees.

The roots of the filibuster can be found in the Constitution and in the Senate rules.

...
And it is very much in keeping with the spirit of the government established by the Framers of our Constitution: Limited Government…Separation of Powers…Checks and Balances.

Mr. President, the filibuster is a critical tool in keeping the majority in check. This central fact has been acknowledged and even praised by Senators from both parties.
...
Just as it has been used to bring about social change, it was also used to stall progress that this country needed to make. It is often shown that the filibuster was used against Civil Right legislation. But Civil Rights legislation passed – - Civil Rights advocates met the burden.

And it is noteworthy that today the Congressional Black Caucus is opposed to the Nuclear Option.
...
For 200 years, we’ve had the right to extended debate. It’s not some “procedural gimmick.”

It’s within the vision of the Founding Fathers of our country. They established a government so that no one person – and no single party – could have total control.

Some in this Chamber want to throw out 217 years of Senate history in the quest for absolute power.

They want to do away with Mr. Smith coming to Washington.

They want to do away with the filibuster.

They think they are wiser than our Founding Fathers.

I doubt that’s true.

Rand Paul and Social Media

The Rand Paul filibuster is the latest illustration of the power of social media. At The Washington Post, Karen Tumulty writes:

Here’s an irony the Founding Fathers could never have anticipated: The old-fashioned filibuster — that most archaic of parliamentary tools — is suddenly the rage of the attention-span-challenged social media set.

Sen. Rand Paul (R-Ky.) created a sensation Wednesday by railing for nearly 13 hours straight in the Senate chamber against the Obama administration’s use of unmanned drones.

The freshman senator lost on the question at hand, as pretty much everyone expected he would. The Senate approved the nomination of John O. Brennan to lead the CIA on Thursday on a vote of 63 to 34.

But Paul’s speech won praise from the civil libertarians on the left and the right. Twitter tracked 1.1 million tweets relating to the filibuster, 450,000 with the hashtag #standwithrand.

Many conservatives noted that Paul and a few allies were tenaciously holding the floor even as a group of fellow Republican senators was committing the heretical act ofdining with President Obama across town.

At National Journal, Ron Fournier writes:

Paul is a junior senator from Kentucky, a darling of the tea party and libertarians who thrives on the margins of the political establishment. And yet he was able to cow the White House by harnessing Twitter and other social media to rally public support. Sen. John McCain, a Republican from another era, sniffed at Paul’s appeal to young voters in “dorm rooms.” Like the anti-piracy legislation thwarted by online activists last year, the Paul drone filibuster may mark a turning point in American activism. For better or worse, public opinion is now more democratized than ever.

The Rand Paul Filibuster

Previous posts have discussed presidential decisions to kill suspected terrorists. (See NYT story on the "kill list.") The New York Times reports:

A small group of Republicans, led by Senator Rand Paul of Kentucky, stalled the Senate on Wednesday by waging a nearly 13-hour old-school, speak-until-you-can-speak-no-more filibuster over the government’s use of lethal drone strikes — forcing the Senate to delay the expected confirmation of John O. Brennan to lead the Central Intelligence Agency.

Mr. Paul, who opposes Mr. Brennan’s nomination, followed through on his plan to filibuster the confirmation of President Obama’s nominee after receiving a letter this month from Attorney General Eric H. Holder Jr. that refused to rule out the use of drone strikes within the United States in “extraordinary circumstances” like the Sept. 11 terrorist attacks.

On Wednesday, Mr. Paul did exactly as promised, taking to the Senate floor shortly before noon and holding forth for 12 hours and 52 minutes.

Mr. Paul finally wound down shortly before 1 a.m. on Thursday, surrounded by a group of Republican senators and House members who had joined him on the Senate floor in a show of solidarity.

Ted Cruz (R-TX) supported Paul by reading Tweets on the floor:


AP offers video of the filibuster's conclusion:



Jon Stewart says that Rand Paul used the filibuster properly:

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