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Confused by the filibuster

Earlier today, I tweeted the news* that the financial-regulation bill had gotten 60 votes for cloture. The filibuster was broken. "But when it comes down to it," someone tweeted back, "will they get 60 votes to get the bill passed?"

This is just one more example of how the filibuster perverts the Senate. Plenty of people think that a bill needs 60 votes to pass. It doesn't. It needs 60 votes in order to get a vote on passage. The actual vote still works by majority rules, because that's how we think things ought to work and how we designed the Senate to function. So at this point, financial regulation needs only 51 votes to become law.

Embedded in this, of course, is an obvious opportunity: Senators could split their vote, voting one way on procedure ("the bill deserves an up-or-down vote ...") and another way on passage ("... even though I don't agree with it"). My understanding is that this used to be fairly common, but isn't anymore. Now procedural votes are treated as indistinguishable from actual votes, and so the filibuster is invoked in cases where a simple "nay," rather than procedural obstructionism, would once have sufficed.

*But you already knew that, because you're following my Twitter feed, right?

By Ezra Klein  |  July 15, 2010; 2:06 PM ET
Categories:  Senate  
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Next: FinReg vs. Wall Street reform

Comments

So is there any legitimate reason for keeping the filibuster? What's wrong with a fair up-and-down vote on each issue, rather than the shenanigans of cloture?

Posted by: Nikki4CC | July 15, 2010 2:49 PM | Report abuse

Typically, though, these things that labor to get 60 votes for cloture promptly pass with 96 votes in favor. Sad but true.

Posted by: ecwooten | July 15, 2010 2:50 PM | Report abuse

"Typically, though, these things that labor to get 60 votes for cloture promptly pass with 96 votes in favor. Sad but true."

For some reason the phrase, 'he was against it before he voted for it' doesn't have the same zing as, 'he was for it before he voted against it.' lol

Posted by: tuber | July 15, 2010 3:06 PM | Report abuse

Yeah the "we can't get to 60 but we can get to 98" effect is a really striking one that I'd like to see the White House especially hammer on harder. The Republicans are not acting in good faith, the Democrats are going to suffer massive losses because of it, and Obama's agenda will be impeded (if not totally derailed). I think this is a strong argument and it's really depressing that the White House seems unwilling to make it.

Posted by: NS12345 | July 15, 2010 3:30 PM | Report abuse

"My understanding is that this used to be fairly common, but isn't anymore."

You mean like 5 years ago before the Democrats took control of Congress and the D.C. echo chamber promptly decided that requiring 60 votes is the Senate norm instead of an extraordinary "filibuster"?

Posted by: QuiteAlarmed | July 15, 2010 3:32 PM | Report abuse

The Republicans aren't even using the traditional filibuster to block legislation, just the threat of one. So I say, hold them to it. Next time they threaten to block a vote, force them to hold the floor, which is what used to be the way of filibustering to prevent "cloture," that is, closing the debate. If they're not there debating the issue, then cloture should be a done deal.

Posted by: lagibby1 | July 15, 2010 3:35 PM | Report abuse

Assuming Dems maintain control of the senate, what are the chances that meaningful filibuster reform will take place in the next congress?

Posted by: pwkennedy | July 15, 2010 3:41 PM | Report abuse

"So is there any legitimate reason for keeping the filibuster? What's wrong with a fair up-and-down vote on each issue, rather than the shenanigans of cloture?"

b/c the senate was designed to be different than the house. b/c its supposed to force compromises and better legislation. The Senate is about the rights individual Senators, while the house is about the majority and efficency.

and if the minority won't compromise or acts in bad faith? too bad.

Posted by: NoVAHockey | July 15, 2010 3:50 PM | Report abuse

@pwkennedy : about 0% chance. Right now each senator can stop the senate in its tracks by not agreeing to unanimous consent. The filibuster is more of a partisan thing, but objecting to unanimous consent is a right that every senator has and they don't want to give that up. If they did give those up the institution might function as a legislative body and not a preening ground for deficit peacocks, but what would holy joe, big ben, blanched lincoln, etc do when a proposal or nominee gives them the vapors?

Posted by: srw3 | July 15, 2010 3:53 PM | Report abuse

@NVH:b/c the senate was designed to be different than the house.

Actually the senate was designed as a compromise so that small states would join the new country after the articles of confederation fell apart. It has morphed over the years into the dilatory body is is now.

Posted by: srw3 | July 15, 2010 3:59 PM | Report abuse

@NoVAHockey: The filibuster was no part of the design of the United States Senate. The design, as shown in the Constitution and Federalist Papers, was for the Senate to be a more deliberative body due to the longer term of its members. The filibuster arose over time as a matter of practice, not design.

Posted by: QuiteAlarmed | July 15, 2010 4:06 PM | Report abuse

@NVH: Remember there was no filibuster until well into the 1800's. There used to be "coimity" in the senate where the minority would not as a rule use denying unanimous consent to simply slow everything down. Filibusters used to be rare. Its only since republicans lost their majority in the senate in 2006 that 60 votes was necessary for senators to blow their noses. Note that the # of filibusters has doubled since the repubs became a minority. Obama has more than double the number of appointees waiting for votes. That is just pure obstruction. Many of these appointees pass with filibuster proof majorities when they finally get to the floor. If that isn't rank obstructionism, I don't know what is...

Posted by: srw3 | July 15, 2010 4:06 PM | Report abuse

I won't argue that as currently empolyed that it is not obstruction --- that's exactly what it is. i just don't see the problem. the right of an individual senator to slow down or even derail legislation is is what makes the senate great.

Posted by: NoVAHockey | July 15, 2010 4:21 PM | Report abuse

@NVH: the right of an individual senator to slow down or even derail legislation is is what makes the senate great.

All true except for the final word--replace "great" with "pathologically dysfunctional".

And as pointed out above by me and others, the senate was not designed by the founders to be a place where the minority relentlessly obstructs the majority and forces a super majority vote for a senator to blow his/her nose. Thoughtful deliberation is not the same as mindless obstruction. The reason repubs mindlessly obstruct is that they have nothing positive to offer and have no intention in working with dems to improve legislation as has been amply demonstrated over the last 18 months. Quite simply, repubs are out to destroy Obama's presidency and don't care if the crater the economy and kill effective governance in the process.

Posted by: srw3 | July 15, 2010 4:33 PM | Report abuse

@NVH: so holding up qualified nominees for months and then approving then by large majorities is good for you? What exactly does this accomplish beyond hamstringing Obama's ability to run the govt and keeping the senate from taking up other important issues?

Posted by: srw3 | July 15, 2010 4:46 PM | Report abuse

The filibuster used to be useful to slow down legislation a senator didn't like. But now it is used for each and every bit of standard business--even for things that eventually garner 98 votes. The Republicans are crying wolf and awful lot these days. And to those who say that Democrats use it the same way when they're in the minority are just misinformed.

http://www.american.com/archive/2008/march-april-magazine-contents/our-broken-senate

Posted by: wd1214 | July 15, 2010 4:48 PM | Report abuse

"Quite simply, repubs are out to destroy Obama's presidency and don't care if the crater the economy and kill effective governance in the process."

And? If his plans are so great, surely the dems will expand on their already sizeable majorities this fall.

"holding up qualified nominees for months and then approving then by large majorities is good for you?" holding them up proves they are not needed at all.


Posted by: NoVAHockey | July 15, 2010 4:58 PM | Report abuse

@NVH: holding them up proves they are not needed at all.

This is the stupidest thing I have read in several weeks. Tell that to the people waiting months for hearings before the understaffed federal judiciary. Lots of govt agencies are not able to function as they should because they are understaffed and often lacking the leadership from confirmed appointees at the top. Plus, having to break multiple filibusters takes a lot of time, even if you have the votes. And this doesn't even touch objecting to unanimous consent to allow the senate to act.


" If his plans are so great, surely the dems will expand on their already sizeable majorities this fall."

I guess you are just not reading and simply writing whatever comes into your mind.

Relentless, pointless obstructionism both forces the good ideas to be watered down and keeps other legislation from being voted on. Not allowing a vote on unemployment extension is a good example of this. Dems get blamed because repubs won't allow an up or down vote.

Posted by: srw3 | July 15, 2010 5:49 PM | Report abuse

I wish we needed 100 votes to end debate. The idea that you can simply vote to silence the opposition should be abhorent to the idea of a free society.

Majority rule is nothing more than the abilty of 51% of people to take away the rights of the other 49%. Majority rule has just as much capacity for tyranny as an absolute monarch.

Posted by: BradG | July 15, 2010 6:04 PM | Report abuse

@BradG : Don't know much about representative govt do you? No one is silencing anyone. The repubs can put forth their arguments why they are right. They can go to the media and make their case. Its not like they don't get ample time to air all of their reasons why dem legislation is the coming of the anti-christ. That isn't why they filibuster every piece of substantive legislation. They shouldn't be able to simply try to run out the clock by mindless obstruction. Why should a nominee have to wait for months and then be confirmed with 90+ votes. It has nothing to do with the merits of the appointee or the merits of a bill. The repubs have obstructed everything.

Yeah, majority rule is the worst thing out there. That's why the founding fathers made it a part of our constitution, where BTW, there is no requirement for super majorities in the senate.

Posted by: srw3 | July 15, 2010 6:30 PM | Report abuse

Majority rule might be good. Look at health care "reform", immigration "reform", administrative prohibition against oil drilling in the Gulf -- why can't Congress simply implement the will of the majority?

A majority has opposed the Obama/Pelosi Regime's health care taxes, has opposed the Obama/Pelosi Regime's lawsuit regarding Arizona's immigration law enforcement, and has opposed the Regime's unlawful prohibition of oil drilling in the Gulf -- why can't the majority be allowed to govern? Why can't the Congress be more representative -- hold up and/or defeat legislation proposed by the rabble fringe of self-proclaimed "progressives"? Why does the majority have to wait for the Center for American Progress Foundation -- which calls itself the "government in exile" -- to approve legislation?

I'm all for majority rule... but to achieve majority rule one must first achieve representative government.

Posted by: rmgregory | July 15, 2010 6:56 PM | Report abuse

@BradG "Majority rule is nothing more than the abilty of 51% of people to take away the rights of the other 49%" - Huh?Majority rule is not perfect, but what is your alternative? Having the minority rule the majority instead? Having everyone just do whatever they want (translation: anarchy)? Or never doing anything until there is unanimous agreement - a completely unrealistic expectation!

Posted by: peeje | July 15, 2010 7:11 PM | Report abuse

@rmgregory "A majority has opposed the Obama/Pelosi Regime's health care taxes", etc. Really - what is your evidence of this? The fact that Obama was elected is evidence that the majority supported him enough to vote for him at that time. The loudness & persistence of a particular group does not necessarily mean that they represent the majority. Those who oppose Obama were as zealous in their oppostion before the election as they are now, but when the votes were in, they proved at that time to be just an especially vociferous minority. Only time & the next election will tell whether they have now become a true majority.

Posted by: peeje | July 15, 2010 7:23 PM | Report abuse

@rmgregory : are you still grousing about the fact that republicans got their as*es handed to them in 2008? Representative government is not govt by referendum. We elect reps for a specified term and then we judge their actions in the next vote. Governing by poll is a recipe for disaster. That is the model the constitution describes or are you against that too?

Posted by: srw3 | July 15, 2010 7:36 PM | Report abuse

"""Majority rule is nothing more than the abilty of 51% of people to take away the rights of the other 49%""

The Senate is not a representative body by population. It represents states. And the Republicans did not garner enough support from the states to acquire a majority of the senators. The system was purposely tilted in their favor, and they still lost. There's no use whining now that even in an anti-majoritarian institution that now SUPER-majorities should be required for everything.

Posted by: tyromania | July 15, 2010 11:14 PM | Report abuse

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