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Filibuster Politics

[ 64 ] July 25, 2012 |

Bernstein on filibuster gamesmanship:

A broader point: if Democrats believe that Republicans will inevitably turn the Senate into a majority party rules institution as soon as they get the majority, then there’s a strong incentive for Democrats to make that reform now whether or not they actually support it.

The tricky thing is if Senators and other insiders believe that Republicans will be very hesitant to move on reform, but if liberal activists and other outsiders are absolutely convinced that Republicans will do so — which may be exactly what Reid is faced with. In that situation, activists will find the inaction of Democratic Senators totally inexplicable, but Democratic Senators may believe that the outsiders are just wrong.

Of course — that leaves out the big question of which side is actually correct. It’s very possible that Republican Senators currently believe that they will not initiate Senate reform should they take the majority, but in fact pressure from Republican activists will push them to do so anyway. In that scenario, using Republican Senators (and their staffs, and other Senate insiders) as a source would be actively misleading.

On the other hand, it’s certainly possible that Republicans (whenever they take control) will live by the same rules that Democrats have live with for the past few years. After all, Republicans did not, in fact, go nuclear when George W. Bush was president. Some fudging of reconciliation rules, a fair amount of bluster, but nothing more. There are in fact strong incentives for individual Senators to retain their rights, and that applies just as much to Republicans as to Democrats. So if Senate Democrats believe that Republicans would respect Senate rules — and the fact that Democrats have moved slowly towards reform indicates they do — then they might be right, after all.

As a general rule I’m on the same page as Scott with regards to filibuster reform; it’s a good idea no matter who’s in power. Nevertheless, this poses an interesting strategic question. My gut screams that the GOP will undertake filibuster reform no matter what the Dems do; it’s a more ideologically coherent party with a robust recent tradition of disciplining wayward members through the medium of primary challenges. Even to the extent that individual Republican Senators have strong institutional incentive to maintain the status quo on the filibuster, the ability of broader GOP socio-intellectual apparatus to bring pressure on recalcitrant Senators will likely prove decisive. But then I don’t know for sure.

Comments (64)

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  1. Bror Jonsson says:

    No, I think that republicans will be as hesitant to remove the filibuster if the come to power the the democrats were last time around. This is the main leverage for moderate senators and their influence would diminish dramatically without it. I don’t think that republican senators are more in lock step to the main politics than democrats in general wither. It’s just that constituents, lobbyists, donors, interests groups, and the main party is pulling in the same direction for republicans, whereas these different groups are all over the place for democrats…

    • Holden Pattern says:

      How many (even so-called) moderate Republican Senators are there? I count one — Susan Collins, now that Olympia Snowe has retired.

      As to your second point, that makes no damn sense. Are you somehow reading the minds of the Republican Senators to learn that in their heart of hearts, they’re not the ideologically coherent body despite their votes, but it’s only the bad company they’ve fallen into that makes it so? The fuh?

      • DivGuy says:

        Scott Brown has by far the most moderate voting record among Republicans in the Senate. Not that he has a choice in the matter, if he wants to retain his seat, but the actions are what matter.

        I could see Brown going along with a plan to kill the filibuster if he won re-election in 2012 and the Republicans tried to kill it in 2013, but any closer to an election year and I think he’d try very hard to avoid it.

        • I can see Scott Brown voting to kill the filibuster for another reason as well: He loved being Vote #41 (or vote #60) when the Democrats had something close to 60 votes, but now that things are going to be tight again, he is vote #51 (or#50).

          That’s a much more interesting position to be in if there is no filibuster.

          • Malaclypse says:

            Hopefully Scott Brown will only have a few more months in office.

            • I think we’re seeing his support eroding right now.

              Sure, a year before the election, there are a lot of Massachusetts Democrats willing to overlook his Republicanism because they’re more focused on him personally.

              But how is that going to hold up when those Obama-supporting Massachusetts Democrats spend the three months before the campaign watching Scott Brown agreeing with every Romney attack on Obama?

              • DivGuy says:

                Is he gonna march lockstep with Romney? If I were Scott Brown, I’d be in heavy discussion with Romney and the NRCC to prepare them for my taking a few stances against the Romney platform. Brown just voted against the extension of tax cuts for the wealthy. I think they’d be more than happy to let him occasionally mark territory outside the party mainstream – they get the reality in MA.

                I certainly hope that Warren can tag Brown as Romney’s lackey and as a RepublicanRepublicanRepublican, but Brown has been very cagey, very slippery so far, and I don’t want to bet against him too heavily again.

                • Jameson Quinn says:

                  I think it doesn’t matter what he says. If weakly-Democratic voters feel as if they’re holding their nose to vote for Obama, they’ll be inclined to show off their independence by voting for Brown. But if they feel like “we have to stop these crazy Republicans”, they’ll be more OK with voting a straight ticket. I know that “we have to stop them” and “holding my nose” are not incompatible, but which one it feels like depends on what the campaign focuses on. A campaign about Obama -> Warren has an uphill battle. A campaign about Romney -> Warren can win easily. And I think the latter is what it’s shaping into.

                • I don’t think this dynamic is really about policy. What you’re talking about is what high-information voters looking at 2 years are thinking about.

                  I’m talking about the lizard-brain bullshit between now and November.

  2. John says:

    The filibuster is a tool of reaction. Republicans don’t need a majority rule Senate, because they don’t care about governance. The stuff they do want to pass – tax cuts – can be done through reconciliation without getting rid of the filibuster.

    • NonyNony says:

      The filibuster is the tool of conservatism. It’s the tool that you break out in a last ditch effort to prevent change.

      If Republicans were really conservative in the sense that they are averse to changing the status quo then the filibuster would be their tool.

      They are not “that kind” of conservative anymore. There are a few, but mostly that’s the Democratic Party’s job these days – fighting a rearguard action to prevent the reactionaries from destroying a half century’s worth of work.

      And that’s why I think the Republicans will actually nuke the filibuster from space the first time it gets in their way. Because they have become a party in favor of radical change in the status quo, and the filibuster is a roadblock to making radical changes in the status quo.

      That said – the Democrats should nuke it from orbit anyway. In addition to being a roadblock for change it’s also a drag on democracy in a chamber that is already highly undemocratic. If the Republicans have both houses of Congress and the Presidency, then actually they should be able to enact changes quickly. And if the Democrats hold both houses of Congress and the Presidency then they should too. This idea that we need a supermajority of the most undemocratic chamber of Congress to make any changes is stupid given the world we live in these days.

      • John says:

        The Republican Party talks a good game at the moment about radical change. When they were last actually in power, however, they had no discernible domestic policy agenda besides tax cuts and cronyism. Maybe you’re right that the current flirtation with a radical rejection of the welfare state is real. I tend to think that if the Republicans take back control of the presidency and the Senate, we’ll hear nothing more of the Ryan budget, and go back to a Republican Party with no domestic policy agenda beyond giving money to the wealthy people who put them in office. They don’t need a 50 vote senate to do that.

        • Cody says:

          These tax cuts are their way of causing this radical change. They also sneak in a lot of other small bills diminishing labor power.

          From my perspective, it seems they’re playing a long and short game. The long game is to collapse the economy concentrating wealth at the top. Lowering taxes and giving important positions to Conservatives is how they’re going to get there.

      • DivGuy says:

        Republicans in the last twenty years have shown a strong grasp of the reality of power in American political institutions. I think they’re smart enough to grasp that actually nuking the filibuster is a major long-term loser for them.

        There are enough sneaky procedural tools in place, and Democrats are in enough disarray for both structural and personal reasons, that the Republicans don’t need to nuke the filibuster to get most of their agenda passed if they’re in the majority.

        Certainly, I dearly hope the Republicans are dumb enough to get rid of the filibuster, but betting on Republicans to get institutional power wrong has not been a winner in the last two decades.

        • Republicans in the last twenty years have shown a strong grasp of the reality of power in American political institutions.

          The Gingrich/Delay years? Absolutely.

          But the teabaggers over the last three years, not so much. They’d control the Senate if they did.

          • DivGuy says:

            To clarify, by “Republicans”, I meant Republican elites, senators and staffers and lobbyists and party functionaries. They’re the people who would have to sign off on ending the filibuster, and I think they’re smart enough to see that the long game there is a huge loser.

            You could argue that the Teapers could force them into it with threats of more primary challenges, and that’s plausible, but I don’t think it’s the most likely outcome.

            • Timb says:

              Look at Richard Murdock and Dick Lugar and tell me what you think of Republican elites and how crazy they might be

            • efgoldman says:

              Primary challenges work, but they’re less radically disruptive in the Senate than the House because of the length of the term and the fact that only a third of the body is up in any elections year. A lot can change over a six-year term.

    • njorl says:

      There is something the Republicans can’t do through reconciliation. They can’t cut social security and medicare payouts. They either get cut, or taxes on the rich must increase significantly.
      People are fond of saying they won’t cut them because it would be electoral suicide. That’s bullshit. You win elections to enact your agenda. The whole point of winning elections is to avoid making good on social security once it stops being a cash cow.

      There are zero long term effects in American politics. After lying us into a war and destroying the economy, the Republicans had one bad election. It took people less than two years to forget George Bush ever existed. If Romney wins and has a majority in both houses – a near certainty if he does win – the filibuster dies. Social security will be “adjusted” for those 55 and under. Payroll taxes will increase, but will be “offset” by regressive tax cuts.

      • socraticsilence says:

        Zero, i wouldn’t go that far given the African-American vote post 1964

        • Murc says:

          Which is based purely on the ongoing, day-to-day racism of the Republican Party. It’s not like liberals went to the mat for civil rights back in the sixties and have been rewarded since then in a vacuum. The Republican Party goes out of its way, every two years, to remind people who aren’t lily-white that it hates and fears them.

          If it stopped doing that I firmly believe they’d gain substantial support among both the black and hispanic/latino communities, which have strong strains of social conservatism running through them, and they’d gain it in pretty short order, probably in a timespan measures in a decade at the most.

      • Rarely Posts says:

        Their agenda is cutting taxes on wealthy people. They do not care about the government’s debt.

        They don’t want to privatize social security and Medicare unless they can do it with democratic/bipartisan cover. They view cutting taxes as supporting that agenda because it “starves the beast” and will eventually force the democrats to cut the programs. But, they don’t prioritize fixing the debt much at all; it’s mostly just a cudgel to use against democrats.

        • timb says:

          I disagree, but not strongly. Republicans want to do away with SS only in the sense of cutting taxes on the rich and giving current accounts to the financial industry to manage and take fees of.

          The banking lobbyists want this and they own 100% of the Republicans and 75% of the Democrats

      • Jameson Quinn says:

        “If Romney wins” is not the same thing as “the next time Republicans get power”. I’m sure they’d nuke the filibuster in the first case; I only guess that they would in the latter one.

  3. somethingblue says:

    Why would Republicans need to get rid of the filibuster? They can always find Lincolns, Millers, Nelsons and Breauxs (Breauxx?) when they need them.

  4. Frank says:

    I think a Republican Senate would only ditch the filibuster if they were coupled with a Republican President and House exactly because they can rely on greater party discipline and reconciliation to do as much as the Democratic branch(s) permits, anyway.

    That way they retain obstruction until the point when they can achieve maximal policy outcomes.

    Doing this in ’08 (and adding the Commonwealth of Columbia as the 51st state!) would have been optimal. But progressives shouldn’t pin our hopes on Republicans doing the long-term convenient thing for us, unless they are matched by a similarly appealing political moment.

  5. LosGatosCA says:

    The two keys to filibuster reform from the Republican perspective are:

    1. Do they need it to forward their agenda? And the answer has been no to this point and it’s unlikely to change, because . . .
    2. Like abortion it’s cudgel they beat the Democrats around the head with. Particularly whenever there is a Republican president. So Democrats cave, gang of 14, etc. on the process but when it’s a Democratic president the Republicans don’t cave on process only on the politics. In other words, Republicans will not be obstructionist if they are losing on an issue, but any issue that’s a tie or in their favor they will maintain the filibuster at no political cost.

    My prediction isno change in the foreseeable future because the only folks with the balls to change it are also the only ones with the balls to use it effectively, so they are not incented

  6. njorl says:

    Democrats can’t change the filibuster rule now. At the beginning of the current senate session, they voted to continue the rules of the previous senate. One of those rules is that it requires 2/3 of voting senators to change the rules. At the beginning of next session, they can set whatever rules they want with a simple majority.

    • John says:

      The chair could rule that a super-majority requirement for a rules change is out of order or unconstitutional, and such a ruling could be sustained by a majority vote, as I understand it.

      • Murc says:

        Which would be complete bullshit, and the Senate basically declaring it has no respect for its own rules.

        I’m not a big fan of the Senate, but I am a big fan of procedural legitimacy, and the Senate absolutely has the right to set its own internal rules. That’s right there in the Constitution. It could make up a set of rules that Senators may only attend sessions naked and all bills must be written in trochaic tetrameter, and that would be legit.

        • R Johnston says:

          No, it would be the Senate declaring that it respects the Constitution above its own politicking. The constitution grants a Senate majority absolute plenary power to set Senate rules, and no internal politics can void that grant of power.

          • The Constitution grants each house the power to establish its own rules. Black-letter Constitutional doctrine.

            Show me where that power is limited regarding a supermajority requirement for ending debate.

            For that matter, show me where it is forbidden for the chambers to allow committees and even individual leaders to prevent, just like the cloture rule prevents, bills with majority support among the entire membership from coming to the floor.

          • Jameson Quinn says:

            I’m with Johnston on that one. Rule V plus rule XXII means there is supposedly never a time to change the rules by simple majority. Since that’s flatly unconstitutional, it doesn’t matter whether you endorsed it with a majority at the start of session.

            If the senate rules said, the only time to change the rules with a majority is at the start of the session, then Murc would be right. But they don’t; they basically say the only time to change the rules is 1962. And that’s bullshit, and therefore ignorable. The fact that you already ignored it once (by voting not to ignore it) doesn’t mean you’ve given up your chance.

            • jalrin says:

              The Senate is not a continuing body constitutionally as the Senate’s membership has fixed terms. At the start of a new congress, therefore, the Senate has to decide if it wants to adopt new rules or keep the old ones. Otherwise, a temporary majority could adopt a rule entrenching its power and requiring unanimity to change it and there would never be a way to fix it no matter how many elections we held. The anti retrenchment rule (as the ban on this was called when I was in law school) exists to prevent this problem and it is what makes it possible to rewrite the rules at the start of a Congress (the first session after a regular election).

            • “Rule V plus rule XXII” have to be readopted at the beginning of every new Senate session, as the rules of previous sessions are not binding on new sessions.

              • Jameson Quinn says:

                That’s not what rule V, paragraph 2 says:

                2. The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules.

                So that’s unconstitutional. And it contaminates rule XXII (the filibuster).

          • Murc says:

            The constitution grants a Senate majority absolute plenary power to set Senate rules,

            Citation needed.

        • The Tragically Flip says:

          Bullshit or not, they could do it, and any bills subsequently passed would be duly stamped and processed by the requisite clerks, and assuming house passage and Presidential signature, would be law.

          The basic reality is that the Constitution does not guarantee an internal rule based supermajority requirement for anything. That the senate currently pretends to have one is really just a gentlemen’s agreement, just waiting to be overturned. If one thinks that the Senate should have a filibuster mechanism, then it needs to be in the constitution. Anything else is subject to majority vote overturn in the chamber.

          • If one thinks that the Senate should have a filibuster mechanism, then it needs to be in the constitution. Anything else is subject to majority vote overturn in the chamber.

            Clause 2: Rules
            Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a member.

          • Murc says:

            The basic reality is that the Constitution does not guarantee an internal rule based supermajority requirement for anything.

            It doesn’t guarantee one, but it provides for the possibility of one existing should the Senate decide to adopt one, and once it does adopt one it ought to respect it for the duration of the current Senate.

  7. wengler says:

    The Republicans won’t change the filibuster rule. They will simply count on the Democrats to not use it nearly as much as Republicans and then use parliamentary trickery to pass whatever they want with a majority.

    Republicans have the corporate broadcast media, they have the newspapaers, and they are the corporate party in the heart of corporate-occupied Washington.

  8. TW3 says:

    Why would Dems get rid of the filibuster now? Legislation of any value would die in the House and there is a fair chance they will be in the minority after the elections.

    • Murc says:

      The long game. Eventually, god willing, there will be another Democratic President with working majorities in both houses and maybe he or she would like to get some shit done. It would have been nice, in 2009, if we’d had ten “extra” Senators we could tell to go fuck off rather than needing all hands on deck.

      • chris says:

        Eventually, god willing, there will be another Democratic President with working majorities in both houses and maybe he or she would like to get some shit done.

        And the filibuster can perfectly well be abolished at the beginning of that session. Why jump the gun?

  9. Ken Houghton says:

    “So if Senate Democrats believe that Republicans would respect Senate rules — and the fact that Democrats have moved slowly towards reform indicates they do — then they might be right, after all.”

    Right. Now pull the other one.

    As noted above, the only reason it the filibuster was left in place 2001-2006 is that Democrats (possible exception Nancy Pelosi; see 2009-2010) prefer to blow Republicans rather than GOTV.

    The desperate attempts above to portray Scott Brown and The Maine Twins as Moderates ignores their voting records and exaggerates their Party influence.

    You don’t need to worry about the long-term when you control the purse strings; the House has shown the way.

    But, go ahead, keep on fooling yourselves, pretending that the one or two attempts at malign policy that failed 2001-2006 are the rule, not the exception, and that the “game” remains the same.

  10. Usually just lurk says:

    My gut screams that the GOP will undertake filibuster reform no matter what the Dems do; it’s a more ideologically coherent party with a robust recent tradition of disciplining wayward members through the medium of primary challenges. Even to the extent that individual Republican Senators have strong institutional incentive to maintain the status quo on the filibuster, the ability of broader GOP socio-intellectual apparatus to bring pressure on recalcitrant Senators will likely prove decisive. But then I don’t know for sure.

    I tend to agree. I’ve noticed that the current crop of GOP suffers strongly from the false-consensus effect – the tendency to think that a much larger group of people agrees with them than actually do. This contributes to one of their many major delusions – namely that the only way they can lose elections is through voter fraud.

    So, although one must recognize that the conservative movement has been remarkably long-term thinking in their strategy from 1980 to now, the end result is a leadership that is remarkably short-term thinking.

    One compromise they might come up with is a trigger – leave the filibuster in but allow the majority to toss it at will when needed. Which of course means that the filibuster is no more, but may allow them to confuse the press about who really killed it off.

  11. Jameson Quinn says:

    If it’s game theory we’re talking, showing some spine has a lot to recommend it. So stop balancing pros and cons and just nuke it.

    (OK, I only say that because I think it’s the right thing to do. But those democratic jellyfish sure do get on my nerves sometimes.)

  12. The Tragically Flip says:

    I generally agree with the post. I would modify it to use a Canadianism, for the Republican majority: filibuster reform if necessary, but not necessarily filibuster reform.

    Meaning if they can pass what they want to pass by hook, crook, reconciliation or Democratic capitulation, they’ll do so. If the Democrats actually block them from something important that they really want, then they’ll overturn it.

    Even then, they’ll invent some means where by they overturn it “just this once” or “just for votes of Type X.”

    That’s what the 2005 “nuclear option” fracas treats us. They invented a constitutional distinction between Judicial confirmation votes and legislative votes, and were prepared to declare the former out of order, but leave the latter. It was the height of hypocrisy, but it shows how they operate.

    From that point to today, there has been absolutely no point for anyone on the left to support keeping the filibuster or supporting any modified filibuster rule that lives only in Senate rules. Unless your rule involves a full Constitutional Amendment, any Senate rule requiring more than a majority for anything can be overturned by the majority at will, and the Republicans have proven they have such will. That’s the lesson of 2005. The filibuster will never save any liberal law nor prevent any regressive judge.

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