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Drive A Stake Through Its Heart: Updated

letsgetitdone's picture

Lugosi

Almost 9 months ago I wrote my first post calling for an end to the filibuster. Since then I've written many that have advocated ending it, all linked from this page. As the months have gone by, and apparently due to the obvious damage the institution of the filibuster has done to pending health care reform, legislation, more and more people have added their voices to the call to end it, Chris Bowers, Jon Walker, and Ezra Klein among them. I'm glad to have the company, and having it persuades me that there's a reason to update my original post on the public, and to present the case I made there once again. So, here goes.

The Republican Tax Cut wingnut, Steve Forbes, once said of the IRS: “The only thing we can do with this hideous beast is kill it, drive a stake through its heart, bury it, and hope it never rises again to terrorize the American people!” While I don't share this view in relation to the IRS, I do think the sentiment is perfectly crafted to express my feelings about the Senate filibuster.

The filibuster is an extra-constitutional travesty that has too often undermined the power of the US Congress to express the will of the people. It has worked to require super-majorities whenever the United States has to get anything important done. The need for super-majorities, in turn, a) has stopped action favored by a majority in many areas; b) where action is possible, it has often watered down or gutted its effectiveness, because the need to compromise with minority opponents of legislation has required agreement to loopholes, “fine print” and exceptions by the majority, and c) perhaps most important of all, the need for super-majorities, has prevented later adjustments by the majority to errors in legislation, and to its unanticipated effects, because, very often, an administration may get only one bite at the apple in each major area of concern.

The “one bite at the apple” problem is made much worse by the need for super-majorities. Legislatures can't follow a continuous improvement/learning-based approach to legislating. They need to get it right the first time. But, that's a virtual impossibility, because politics and economics deal with complex systems and none of us know enough about such systems to do it right the first time without pure, blind luck. The current stimulus package, the coming health care bill, the future energy and environmental legislation, all are sure to be flawed and to require continuous improvement, just as we're finding with the TARP legislation. But we won't be able to do that improvement, because the lack of a super majority won't allow it, and because if there is a need for improvement, that very fact will ensure that the minority's political interest will impel them toward preventing it.

How do we handle complex systems in non-legislative environments in order to be successful? The best method we know is to develop a solution to a problem by comparing alternatives and selecting what appears to be the best, monitor the results closely, and if those don't meet our expectations, then recognize another problem and go back for a second or third or fourth bite at the apple, in order to continuously improve our results until we meet some standard we've had in mind from the beginning. The biggest problem with the need for super-majorities in Congress, is that they make legislating a “crap shoot,” because they shut the door on any realistic possibility of proceeding along the path of correcting errors. Instead, super-majorities only allow us to pass an inferior solution to a problem in the first place, and when its results are unsatisfying to everyone, to blame the “ins” for failing, get the “outs” in, and give them a chance to try to get their own solutions through the same obstructionist process.

In the twenty-first century, a society that can't adapt to error, which is, after all, the human condition, cannot long survive. And the United States is in for a very sharp decline unless we can do something about a legislative process that is incapable of continuously evaluating and improving the results of its previous decisions. That something is getting rid of the filibuster and returning to the constitutional requirement of a simple majority in each house of Congress to pass new legislation.

Getting rid of the filibuster is easy to do, if we have the will and are willing to abandon the mythology of the desirability of immobilist government that thwarts the will of the majority. The instrument of doing it is a maneuver that's been given the name of “the nuclear option.” It was proposed by the Republican Senate in 2005 to overcome Democratic filibusters of Presidential judicial nominees intended to block Senate confirmations. When Bill Frist, the Senate Majority Leader at the time, got ready to “trigger” the option, which would have had the consequence of eliminating the rule or precedent underlying the filibuster, a bi-partisan so-called “gang of fourteen” (7 Democratic and 7 Republican) senators arrived at a compromise which got the Republicans what they wanted, and saved the filibuster for posterity. The compromise was to avert a vote on “the nuclear option,” give up the filibuster on some of the nominees, table the consideration of others, and save the filibuster for "extraordinary circumstances."

The 2005 conflict wasn't the first time the nuclear option was attempted. It was moved on 10 previous occasions by various people, but each time it was attempted, it was either defeated, or a compromise was worked out to save it for future use. The procedure for implementing the nuclear option isn't difficult. Here are the steps involved to exercise it.

1) During a filibuster, a Senator makes a point of order calling for a vote on the measure being considered by the Senate.

2) The presiding officer of the Senate, most often the Vice President of the United States makes a parliamentary ruling upholding the point of order and citing the Constitution of the United States rather than previous Senate rules (which uphold the right of unlimited debate) as the precedent supporting the ruling.

3) A supporter of the filibuster will then “appeal from the chair” by asking whether the Chair's decision will stand as the judgment of the Senate.

4) An opponent of the filibuster then must move to table the appeal.

5) Since motions to table are not debatable, the Senate immediately votes on the tabling and decides by simple majority vote.

6) If a majority decides to table, the ruling of the Chair, that the filibuster is unconstitutional, and that majority vote is enough to bring a bill to vote and to pass it, is upheld.

7) By its action in upholding the Chair, the Senate will have established a new precedent, namely that filibusters are unconstitutional, and that all legislation thenceforth may be passed by majority vote, following a point of order calling for a vote.

In the last national election in the United States, I, like so many others, voted for change in both economic and foreign policy, which means that I voted for Democratic candidates for office right down the line. I wanted the Democrats to have their fair shot at fixing the American Economy and ending the foreign policy debacles of the Bush Administration. I didn't vote for more of the abysmally failed Republican thinking in either of these two areas. And since I view any input from them as clueless, reality-denying, and sure to result in more people losing their jobs and their dreams, I certainly didn't vote for that political party, whose policies have failed, to have any serious inputs into the Recovery Package.

Now, I ask myself, why are they having serious inputs into the Recovery legislation? Why are they capable of persuading people to limit the overall size of the stimulus to under One Trillion Dollars, and to eliminate or reduce funding in the Recovery Act for Head Start, Education for the Disadvantaged, School improvement, Child Nutrition, Firefighters, Transportation Security Administration, Coast Guard, Prisons, COPS Hiring, Violence Against Women, NASA, NSF, Western Area Power Administration, CDC, Food Stamps, Public Transit, and School Construction? In short, why do they have the continuing influence that I and a majority of Americans voted against them having? Why haven't we been able to get the “ins,” “out”?

The simple answer is the existence of the filibuster. Now, I'm well aware of all the arguments out there defending the filibuster on grounds that it is an important element protecting the minority against the tyranny of the majority in the United States. I don't buy that nonsense at all. None of the other major Democracies in the world have anything like the filibuster, and I don't see tyrannies in any of them. Also, the United States has a surfeit of anti-democratic elements in its political system protecting minorities. We don't need an extra-constitutional institution like the filibuster. We have too little Democracy in the United States, anyway. Not too much. And we need to redress the balance if we're to adapt to the challenges that face us.

What is the filibuster worth? The filibuster is not worth the job of a single laid-off American.

So, let's use “the nuclear option.” Let's use it this week. Let's use it for the sake of the Recovery Bill. Let's use it for the sake of all the legislation the Obama Administration has yet to pass. Let's use it for the sake of all the changes our country will need in this very challenging century. And finally, let's use it to drive a stake through the filibuster's heart, and prevent that relic of a simpler and slower moving age from continuing to sap the life-sustaining energy of political innovation out of our Republic.

Of course, this last paragraph was written last February, and doesn't apply now that a health care "reform" bill, however miserable it may be, has passed the Senate. Yet, in the unlikely event that the House refuses to accept the Senate bill, and the Senate has to reconsider its bill, this call for immediate action will again apply. Even if it does pass however, there will be opportunities to use the nuclear option in relation to "cap-and-trade" legislation, a sorely needed new jobs bill, further health care reform needed to repeal the pending bill, educational reform, and energy legislation. All of these represent needs of the United States that cannot wait until after the elections of 2010. Congress can act on them all, if the filibuster is destroyed. We need an end to it, and we need it now!

(Also posted at firedoglake.com and the Alllifeisproblemsolving blog where there may be more comments)

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Submitted by lambert on

The framing of the post exemplifies the problem to which I point in the subject line: A vampire is a person. But the post is all about process. You can only hold people accountable; but not processes. So what's the hold-up? Why don't these guys already have the will? If the House, the Presidence, 60 seats in the Senate, and a ton of money from the banksters and the insurance companies haven't emboldened them, what will?

I have to say that, given the the track record of Bowers, et al, on health care, where the generous interpretation is strategic failure, and the less generous interpretation is outright misdirection, I have to worry about the provenance of this newly exciting issue.

Of course, 51 votes will be helpful when it comes to entitlement reform...

First they ignore you, then they ridicule you, then they fight you, then you win. -- Mahatma Gandhi

letsgetitdone's picture
Submitted by letsgetitdone on

We need to hold people accountable for both outcomes and the processes they support. They've been supporting a process in the Senate that gives power to the most right-wing Democrats. As long as each Democrat in the Senate refuses to stand against that process, all Democrats are responsible for the power of Joe Lieberman, Ben Nelson, and the others. You asked:

"So what's the hold-up? Why don't these guys already have the will? If the House, the Presidence, 60 seats in the Senate, and a ton of money from the banksters and the insurance companies haven't emboldened them, what will?"

I can't answer that question. What I can say is that not spotlighting the filibuster, the power it gives to the blue dogs, and their own responsibility for maintaining it has the effect of allowing them to use excuse their failure to act to both us and to themselves. We need to tell that we know it's an excuse, and we want them to get rid of it, so that only 51 votes will be needed to pass legislation.

You also say:

"I have to say that, given the the track record of Bowers, et al, on health care, where the generous interpretation is strategic failure, and the less generous interpretation is outright misdirection, I have to worry about the provenance of this newly exciting issue."

First, this is ad hominem. Who cares who's advocating it, the question is whether it would make a difference if progressives only needed 51 votes to get things through. I think it's obvious that it would because because there are nine fewer assholes we would need to get to vote for a bill that would actually solve a problem.

But second, Chris Bowers, et. al. is, as far as I am aware not the provenance of the call to kill the filibuster. I am, and I've been making this call since last February. I'm certainly not going to stop now because Chris, Jane, Jon Walker, and Ezra have started calling for it too.

And finally you said:

"Of course, 51 votes will be helpful when it comes to entitlement reform... "

My view on this is that if they have a majority for entitlement reform, then let them enact it. I'm against what they want to do and will fight them every step of the win, and if they win, I'll be trying my best to make them pay the price for their actions. But, regardless of what happens, I want the Senate to be more Democratic than it is, and I don't care if it makes things easier for "them," when they're in power. After the filibuster is gone, the Seniority System will be next on my list. And after that I'll be looking to change the Constitution to make the Senate more representative of the population of the United States. For me the point here is more democracy and more accountability. I'll trust that overall the results of that kind of change will be better than the results we've been getting.

Submitted by lambert on

(again) I do try to word my concerns rather carefully; after all, I've been doing Versailles-ology pretty much daily since 2003. Therefore, when I write:

"I have to say that, given the the track record of Bowers, et al, on health care, where the generous interpretation is strategic failure, and the less generous interpretation is outright misdirection, I have to worry about the provenance of this newly exciting issue."

I mean what I say. If I had wanted to write "the idea is teh suxx0r because Bowers advocates it," I would have. Rather, what I'm asking is why this issue now? We've had sudden eruptions of mysterious and unmotivated unanimity from the same crowd before (public option comes to mind), so what's the story with this "newly exciting" one? Why are "we" now asking this question instead of another one? It's part of doing the media critique*, alas; opinions are always put forward by some public figure, and the alternative is using the "some say" locution, which I cannot abide.

As far as "Why don't these guys already have the will?" I would think one would wish to know, before engaging in the effort. No?

And, really, my main concern, as usual ;-), is in the throwaway: "Of course, 51 votes will be helpful when it comes to entitlement reform... "

UPDATE * Valhalla gives an exact parallel:

But dissidents and political analysts (I don't mean the chatterers on the teebee, I mean intelligence analysts etc) would spend much time checking out who got to sit near whom on the main parade stand. That is, they did not get caught up in the spectacle; they knew it meant nearly nothing compared to which political flavor was ascendant at a particular time.

First they ignore you, then they ridicule you, then they fight you, then you win. -- Mahatma Gandhi

letsgetitdone's picture
Submitted by letsgetitdone on

I think wondering why Bowers, et al are calling for an end to the filibuster is an important think to wonder about, and it may be related to a broader administration strategy to weaken entitlements. Nevertheless, I'm still for ending the filibuster, because I think we can use that too.

selise's picture
Submitted by selise on

...it may be related to a broader administration strategy to weaken entitlements. Nevertheless, I'm still for ending the filibuster, because I think we can use that too.

does "that" refer to the filibuster or to entitlement reform?

thanks!

DCblogger's picture
Submitted by DCblogger on

even if the filibuster is just being used as an excuse, it has to go. And I am beginning to think that Obama is serious about dumping it. Otherwise his sock puppet Ezra would not be writing about it.

letsgetitdone's picture
Submitted by letsgetitdone on

Ezra may be his "sock puppet," but does that mean that everything he says gets a "by your leave" from Obama? I don't think that's so, but I certainly would be happy if Obama were suddenly out to get the filibuster.

Submitted by lambert on

... then he wants to get rid of it for "entitlement reform." I prefer gridlock, thank you very much.

In a lot of ways, Obama's like Bush, in that he said what he was going to do, and people just didn't believe him.

First they ignore you, then they ridicule you, then they fight you, then you win. -- Mahatma Gandhi

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Submitted by madamab on

In a totally different universe where there are differences between the Parties, the Dems would tell the Joe Liebermans of Congress to go ahead and filibuster to their heart's content.

The whole thing would backfire, as the nation would soon start screaming at the designated Lieberman to STFU and let the process continue. And every single time a Repub or DINO decided to filibuster genuinely good legislation, he'd have to get the adult diapers and the pizza delivery ready.

It would soon become evident that the filibuster wasn't gaining him any political capital at all (quite the opposite), and the designated Lieberman would give up and try something else (that wouldn't work because the Dems have enough votes to override it).

In the current universe, the filibuster is no obstacle at all. It does not prevent anything good from occurring, because the Dems could stop it any time they want to.

It is like the Public Option Sparkle Pony - sounds important, but isn't. IMNSHO.

Never vote for people who hate you.

ERA Now!

The Widdershins

letsgetitdone's picture
Submitted by letsgetitdone on

madamab, you say:

"In the current universe, the filibuster is no obstacle at all. It does not prevent anything good from occurring, because the Dems could stop it any time they want to."

It's clearly harder to get 60 votes for something than it is to get 50+1, or 51, if you think the VP will go against you, when those last 9 votes are held by the most conservative Democrats in the Senate. The influence of the need for 60 is seen even in the House, which pre-compromises on the bills it passes, based on whether they think there's a chance in hell of the Senate passing what they're proposing.

You're right that the Democrats could stop it anytime they want to, but that doesn't mean it's not an obstacle, given that they haven't moved to remove it. If you want to say that it's an obstacle they choose to live with, and are responsible for, of course I agree.

They can change the game they're playing if they want to. What I've been trying to tell them with my writing is that I intend to hold them responsible because they're allowing a legislative game that uses the filibuster to continue to exist and are prioritizing that game more highly than legislation that will solve problems.

madamab's picture
Submitted by madamab on

You're right that the Democrats could stop it anytime they want to, but that doesn't mean it's not an obstacle, given that they haven't moved to remove it.

My point is that they don't need to remove it. They can just allow the filibusters to go on until they backfire, which they will, and then the legislation can be passed without the DINO votes.

Why don't they do that?

(Rhetorical question.)

Never vote for people who hate you.

ERA Now!

The Widdershins

selise's picture
Submitted by selise on

i think lambert would say "+1000."

in any event i agree completely. forcing an actual debate, under physically demanding conditions, is a way to shine the public spotlight on an issue. and these days we don't have many ways to do that absent a million people surrounding the capital in a sit-in campaign.

letsgetitdone's picture
Submitted by letsgetitdone on

I'm all for physically forcing them to filibuster. But that doesn't touch the argument for getting rid of the filibuster. If we soptlight how ridiculous the filibuster is, then perhaps we will be able to get the "nuclear option" then.

selise's picture
Submitted by selise on

I'm all for physically forcing them to filibuster. But that doesn't touch the argument for getting rid of the filibuster.

how can they be forced to filibuster (the talking at length kind) if the filibuster rule is gone via nuclear option?

letsgetitdone's picture
Submitted by letsgetitdone on

Force them to filibuster first, by trying to pass legislation they won't accept. Let them filibuster for long enough that they look really ridiculous. Then use the "nuclear option."

Submitted by lambert on

... it would already have been done.

First they ignore you, then they ridicule you, then they fight you, then you win. -- Mahatma Gandhi

letsgetitdone's picture
Submitted by letsgetitdone on

I think there's been no mobilization of pressure against the filibuster. If that pressure got serious it would be done. We might get the necessary crunch when the Dems try concentrating on jobs as they're now supposed to do. They'll face deficit hawkism problems when they do. Unless they ober come the blue dogs then, they won't get a credible jobs program, and they'll lose in the Fall. Maybe that'll get them to wake up and smell the coffee.

selise's picture
Submitted by selise on

What I've been trying to tell them with my writing is that I intend to hold them responsible because they're allowing a legislative game that uses the filibuster to continue to exist and are prioritizing that game more highly than legislation that will solve problems.

how do you plan to hold them responsible? because if you don't have a way to hold them responsible and they (dem leadership) plan to use their greater power for "entitlement reform", then you are aiding them in destroying people's lives.

if you've got a plan to share, then that's a different story. but as someone who spent many days in CT for the lamont campaign -- an appealing candidate willing to self fund in a small state and running against lieberman who was seriously despised by a significant portion of the dem base -- i don't think "holding them responsible" is so easy in these days of campaign by large, expensive, advertising buys and other means such as expensive media manipulation and even possibly buying votes.

letsgetitdone's picture
Submitted by letsgetitdone on

It's to do the movement, to keep writing, to keep pressuring when I can, to get others involved, to keep contributing where I think it will do some good, and to keep calling bullshit.

Please don't try to lay any Jane-style guilt trips on me. I don't think I need to be able to do any more than that to justify my calling for an end to the filibuster. I don't have to have some special power or plan for successfully punishing people who decide to get rid of entitlements. All I have to have is my own estimate that in the short run things are likely to be better, and that in the long run they are highly likely to be better if we get rid of the filibuster.

As far as supporting the filibuster because one is afraid of the future and one is afraid that getting rid of it may have negative effects, my view of that is that it's a legitimate concern, but we have a choice. We can maintain the power of a minority in the Senate to block legislative solutions and distort them so they are not solutions, or we can take a chance on removing that power, and seeing where majority vote will take us. I've answered a variant of this fear argument in this reply to one of your comments at fdl.

selise's picture
Submitted by selise on

did not mean to lay anything on you. will not ask that question again. please let me know if there is anything else that is guilt-trippish and i will try to avoid doing it.

i am trying to be clear about the risks involved though because the risks are to a lot of innocent people. and i really really really think they are going to try to privatize SS. it makes perfect sense as another (see tarp, see fed, see healthcare) fire industry bailout.

i also know that larry summer's econ policies/ideologies, especially privatization, killed about three million people in just a few years in russia. (i don't have good numbers for other countries.) these guys don't mess around.

finally, i remember this post and comment thread: Cramdown is Dead, Long Live the Tea Baggers, and Why We Won’t be Doing Anything to Save Social Security and then i look at who is this year advocating getting rid of the filibuster when they were arguing to save it during the alito fight (that's not you lets) and most of them are not very progressive. so that's got me questioning too.

.....

thanks for your reply at fdl. i'll probably just follow up at your site with the filibuster / senate rules stuff (after i find my year old notes and do some rereading. iirc at least i printed out most of the reports, so it's just an issue of trying to find the file). if anyone wants to follow what threatens to get into the weedy detail, just follow lets' link.

there are lots of threads to this one (senate procedure/rules, politics, SS, etc).

letsgetitdone's picture
Submitted by letsgetitdone on

Thank you selise, I'll look forward to your more detailed reply.

DCblogger's picture
Submitted by DCblogger on

The filibuster is not worth the job of a single laid-off American.

Submitted by gmanedit on

http://www.pruningshears.us/pruning-shea... Senators "want to maintain a system that maximizes their opportunities to demand to be catered to. Anything that presents more opportunities for obstruction gives individual Senators more chances to exert leverage, and more chances to be fawned over." It's a factor.

Like lambert, I worry about making "entitlement" "reform" easier, and other so-called reforms/schemes (cap and trade, education, whatever). But lets has a point: "allowing them to . . . excuse their failure to act to both us and to themselves." Every time the Democrats don't use their power to benefit us, more people see the violence inherent in the system.

letsgetitdone's picture
Submitted by letsgetitdone on

We've got to fight this out, straight up. If we lose or win on a majority vote, then we lose or win according to the Constitution. That's the way it ought to be.

letsgetitdone's picture
Submitted by letsgetitdone on

It refers to the end of the filibuster. They may think they can use it. But I think it will empower us more.

Submitted by libbyliberal on

Lets, you make a great case and I will encourage using the nuclear option on my phone calls to Congress and calling to get rid of the filibuster.

We as a government have been grid-locked for so long. Solutions that by the time they make it through passage are pathetic and anemic.

It is such a fixed game. Can we get back to a level congressional playing field?

I wonder if the Capra Mr. Smith movie has sentimentalized the filibuster for us, and protects its existence.

Hard enough to get a majority but a super-majority? Especially with the hyper cronyism among parties. And then the corporate cronyism that exists with both parties and corporations. The decent minority on the left that have some loyalty to the people are totally outgunned, dismissed as iconoclasts. Just hearing about the Overton window is it? Normalizing what shouldn't be regarded as normal!

Thanks for this exploration.

Vision without action is a daydream. Action without vision is a nightmare. (Japanese proverb)

letsgetitdone's picture
Submitted by letsgetitdone on

Hi lib, Thanks for the comment. I've often wondered about Capra's film myself, and its protection of the filibuster. Since Capra was pretty lefty I'll bet he's turning over in his grave right now.

If we don't stop the gridlock, this country is going down.

Submitted by libbyliberal on

Lets, you make a great case and I will encourage using the nuclear option on my phone calls to Congress and calling to get rid of the filibuster.

We as a government have been grid-locked for so long. Solutions that by the time they make it through passage are pathetic and anemic.

It is such a fixed game. Can we get back to a level congressional playing field?

I wonder if the Capra Mr. Smith movie has sentimentalized the filibuster for us, and protects its existence.

Hard enough to get a majority but a super-majority? Especially with the hyper cronyism among parties. And then the corporate cronyism that exists with both parties and corporations. The decent minority on the left that have some loyalty to the people are totally outgunned, dismissed as iconoclasts. Just hearing about the Overton window is it? Normalizing what shouldn't be regarded as normal!

Thanks for this exploration.

Vision without action is a daydream. Action without vision is a nightmare. (Japanese proverb)

Submitted by lambert on

... wouldn't lead to even worse outcomes? A sort of Chernyobl in Versailles?

First they ignore you, then they ridicule you, then they fight you, then you win. -- Mahatma Gandhi