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Filibuster follies

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"I do detect some momentum gathering behind Tom Udall’s constitutional option for curbing the filibuster in January of 2011," writes Matthew Yglesias, who spent the weekend at Netroots Nation. I didn't go to Las Vegas, but I'm getting the same thing: There's an effort underway to convince people that a large and growing number of Senate Democrats are seriously considering changing the institution's rules before the start of the next Congress.

I'd be lying if I said this seemed likely. Democrats are going to lose a lot of seats in the next election. A "win" would be losing only quite a few seats. A loss would be losing one -- or two -- houses of Congress. Either way, voters are not likely to dramatically reaffirm their desire to be governed by Democrats.

But because the Senate isn't very democratic, only a third of its members are up for reelection, and that blunts the damage that any single election can do. So Democrats are likely to start the next Congress with a majority, even if they lose the election quite badly. With sufficient unity, they could change the rules before work begins again. But it'll be a pretty raw move: Neutering the opposition after the voters favored them at the polls is a bit hard to defend on principle, and it's even harder when the principle in question is that the Senate should be governed democratically.

We are, however, getting closer and closer to the day when someone does change the rules. Republicans tried to protect judges from the filibuster under Sen. Bill Frist. Democrats are talking about changing the rules at the start of the 112th Congress. And now that they're talking about it, are they really confident that if Republicans take the Senate back in 2012 or 2014, that they won't do what the Democrats couldn't and change the rules in their favor?

My oft-expressed preference is for Republicans and Democrats to figure something out jointly and set it into motion such that it either phases in over the next few years or begins six years from now, when we don't know who'll be in control. But if that's not going to happen, then members of both parties have to be thinking: Do they really want to be the side the rules get changed on, rather than the side that changes the rules?

Photo credit: Louie Traub/AP.

By Ezra Klein  |  July 26, 2010; 11:13 AM ET
Categories:  Senate  
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Comments

I think you VASTLY overrate the psychological impact a rules change would have on the electorate. The folks in DC who might be outraged should already be long past that point.

If no one cares about a year of obstruction following a "change" election, why on Earth would they care about a rules change next year. You're in too deep. You've gone native.

And, since it's obvious that this is going to happen, the only ones who will get benefit from it is the party that does it.

Posted by: BHeffernan1 | July 26, 2010 11:22 AM | Report abuse

Can't both sides agree that they'd rather have cloture require 55 votes than 60?

It would have to be universal--judicial appointments could not be exempted, and still require 60 votes for cloture.

Posted by: Kevin_Willis | July 26, 2010 11:25 AM | Report abuse

So now its OK for Republicans to nulify the public's wishes in 2008 by the filibuster but not OK for the Democrats to change the rules in 2010?

Posted by: ostrogoth | July 26, 2010 11:29 AM | Report abuse

"I think you VASTLY overrate the psychological impact a rules change would have on the electorate."

And I think you vastly overrate the electorate's level of knowledge/attention to those rules. In fact, I dare say I KNOW you overrate it, since Pew did a survey on the matter a few months ago:

http://pewresearch.org/pubs/1478/political-iq-quiz-knowledge-filibuster-debt-colbert-steele

"n the latest installment of the Pew Research Center's News IQ Quiz, just 32% know that the Senate passed its version of the legislation without a single Republican vote. And, in what proved to be the most difficult question on the quiz, only about a quarter (26%) knows that it takes 60 votes to break a filibuster1 in the Senate and force a vote on a bill. The survey was conducted before Massachusetts Republican Scott Brown won a special election to the Senate on Jan. 19; Brown's election means Senate Democrats can no longer count on a 60-vote majority once he takes office."

Posted by: y2josh_us | July 26, 2010 11:31 AM | Report abuse

Just making a preliminary look at what Senators are up for election in 2012 and 2014 and what states they are from, it looks highly likely that Republicans will control the Senate between 2013 and 2017 if they do not get control in 2011, which appears unlikely.

I would remind Democrats that abolishing the filibuster looks good when Democrats have the majority, but doesn't look quite as good when Republicans have the majority.

Posted by: lancediverson | July 26, 2010 11:32 AM | Report abuse

"Neutering the opposition after the voters favored them at the polls is a bit hard to defend on principle, and it's even harder when the principle in question is that the Senate should be governed democratically."

No. It's not.

The majority in legislative body should have to power to call for a vote on the business that comes before that body. This is not a difficult principle to defend.

The minority party should not have the power to block all business and kill all legislation that comes before the body. THAT is a difficult principle to defend.

The ultimate irony will be if the GOP takes the senate and kills the filibuster as their first item of business. I will totally support them if they do this.

If the dems, after years of complaining and abuse, can't get it together to reclaim the principle of simple majority vote -- then they've done this to themselves. I will not be at all sympathetic to their complaints in 2011 and 2012 that the GOP is blocking meaningful legislation.

Posted by: bswainbank | July 26, 2010 11:34 AM | Report abuse

Changing the Senate rules will have to wait for the next Republican majority that is short of 60 votes. They have the raw will to make it happen. See the nuclear option.

Posted by: jnc4p | July 26, 2010 11:36 AM | Report abuse

y2josh_us: we agree.

The political implications are that a bunch of people in DC will freak out and no one else in the country will care.

Posted by: BHeffernan1 | July 26, 2010 11:37 AM | Report abuse

Here's another vote for the "voters don't know or care about the rules in the senate". I can't imagine more than a tiny handful of votes being swayed in 2012 because the Dems abolished the filibuster in 2011.

Ezra/Dylan: is there any data suggesting how voters would view the elimination of the filibuster under different scenarios?

Posted by: willholm | July 26, 2010 11:38 AM | Report abuse

I would remind Democrats that abolishing the filibuster looks good when Democrats have the majority, but doesn't look quite as good when Republicans have the majority.

Filibusters didn't do Dems much good during the Bush administration because more than a few of them were willing to vote against one. They only pulled off 40 votes for what... Three judges? Maybe a couple other things.

In any case, the real problem with the filibuster which hasn't gotten much press is that even unsuccessful filibusters tie up the Senate for 3 days. So the Republicans have threatened to filibuster pretty much every single nominee. (There's a couple hundred now that are waiting to be confirmed, right?) And because it'd take almost two years to plow through all those nominees (that are going to get 80-90 votes), almost none of them come up.

There needs to be a greater cost to filibustering. Right now, it costs nothing to do while heavily punishing the majority even if it's unsuccessful.

Posted by: lol-lol | July 26, 2010 11:50 AM | Report abuse

"...voters are not likely to dramatically reaffirm their desire to be governed by Democrats."

While this seems almost certain to prove true, it is also true that the public detests the sense that everything takes forever in Washington. I think the Democrats can sell the reform on the grounds of "eliminating procedural delays" and "letting everything come to a simple up or down vote."

The Democrats should also be able to sell the fact that this reform will be a benefit for either party that holds a majority.

I think that reforming the Senate rules would actually be very popular (or, at worst, simply uninteresting rather than unpopular) if the Democrats can message it properly. Of course, that's always a big "if."

Posted by: Patrick_M | July 26, 2010 11:52 AM | Report abuse

there are only 2 reasons democrats won't end the filibuster:

1. skittish dems reacting to losses in the election.
2. conservative dems (beyond the obvious ben nelsons) behind the scenes nixing it.

if the dems don't change the filibuster--nothing will get done. i don't think they can even get a budget passed. really. liberal dems aren't going to cave. republicans won't budge. there are not 60 votes for anything of real import in the post 2010 election scenario.

and, if the democrats don't change the rules, the republicans will change them as soon as they get control. you can count on it.

and agreed with those saying no one will care except those who actually closely follow politics. for the rest, it will be just another dem-repub argument loaded with dc insider claims. the republicans will cry fowl, facism, ignoring election results, etc. the democrats will claim democratic voting and republicans abused the filibuster.

Posted by: hansonjb | July 26, 2010 12:02 PM | Report abuse

This is a done deal. The die is cast. I suppose it's possible the Dem's won't have the guts and it will wait for a Repub majority but it will happen. I lean liberal and I'd support the R's doing it too if D's don't.

What would be interesting to talk about is how the dynamics will change when 60 is no longer the magic number. One could argue it will encourage bipartisanship by adding consequence, making voting result in lawmaking and so on.

Posted by: BHeffernan1 | July 26, 2010 12:14 PM | Report abuse

"Neutering the opposition after the voters favored them at the polls is a bit hard to defend on principle,..."

Logic fail. "Favoring" the Republicans means that the Republicans are in the majority. Momentum isn't what is important, it's the state of the vote count, not the first derivative.

For the past two years, the Republicans have steadfastly refused to play along with the notion of majority rule. The filibuster rule is an accidental vestige that has outlived any original purpose.

What happens if the Democrats have 53 Senators and the Republicans have 47? Is it really an acceptable state of affairs to pass no significant legislation whatsoever for two years? The current state of affairs is a fiasco, and should not be allowed to persist.

Posted by: rick_desper | July 26, 2010 12:40 PM | Report abuse

"I would remind Democrats that abolishing the filibuster looks good when Democrats have the majority, but doesn't look quite as good when Republicans have the majority."

We have not seen a successful, meaningful Democratic filibuster in decades, not since the "Democrats" were the Dixiecrats opposing civil rights reform.

The filibuster is not a double-edged sword. Not in today's political climate. The same "sensible centrists" who filibuster Democratic legislation would never dare to do the same to Republican legislation!!

Posted by: rick_desper | July 26, 2010 12:44 PM | Report abuse

"and, if the democrats don't change the rules, the republicans will change them as soon as they get control. you can count on it."

And this is the truth. They nearly killed the filibuster in 2008. But what the did effectively killed any threat that Democrats would ever filibuster anything, since they lined up "centrist" Senators who would never filibuster them (even when they continue to perpetuate the myth that all legislation requires 60 votes, a constraint that only appears to matter when Democrats have the majority).

The persistence of filibuster constraints has to be viewed as a tool for "centrist" Democrats to be able to achieve nothing. But is that really helping them (or the party?) Let's consider how well Blanche Lincoln is doing in Arkansas. And Harry Reid only has any political future because his candidate is considered beyond the fringe, even for a Nevada Republican. (How the GOP have screwed up such a gimme is beyond me.)

Posted by: rick_desper | July 26, 2010 12:49 PM | Report abuse

I think that the Dems won't do it even if they only lose 2-3 seats (as I expect). Reasons: First, the filibuster and allied rules like holds give each individual Senator a great deal of personal power, which they will be loathe to give up. Second, Conservadems like not having to vote on stuff that their friends and donors don't like. Even without Blanche Lincoln and Evan Bayh we will still have Ben Nelson and Mary Landrieu and maybe a new conservativish person from IN or NC.

And I think how the Dems do in 2010 will have a whole lot to do with how they do in 2012 and 2014. True, there are a whole lot of Dems up in 2012, but they are a strong group, the R's have to defend John Ensign's seat in a state that produced Sharron Angle and Jim Gibbons; the seat of the electorally damaged KB Hutchinson; and Joe Lieberman's seat.

In 2014 we have another large but strong class. We can replace Max Baucus while they decide what to do with Lindsay Graham and defend another small class of western and soutrhern nonentities plus Susan Collins.

Posted by: Mimikatz | July 26, 2010 12:56 PM | Report abuse

I'm skeptical it could happen if only because of the numbers. The Republicans would need a miracle to win control, but they could certainly cut the Democrats down to 53-55. It will take 50 Democratic senators + Joe Biden to abolish or modify the filibuster, and I can't imagine Ben Nelson, Mary Landrieu, and Mark Pryor, for example, voting to abolish it. I would guess you'll get at least 5-6 Senate Dems opposed.

That being said, it actually is quite possible that Senate Democrats could end up with only a net 1-2 seat loss. Right now, only Ark. and ND are definitely gone, though Delaware and IN are likely losses too. It's quite plausible that they could pick up those 4, but fall short in NV, CO, PA, IL, WI, WA, and CA. Meanwhile, if Democrats pick up 2 seats - OH and FL (Crist) - that would leave 57 Senate Democrats. Beating expectations AND keeping a large majority could be enough to force a change in the filibuster.

Posted by: Isa8686 | July 26, 2010 1:34 PM | Report abuse

"But it'll be a pretty raw move: Neutering the opposition after the voters favored them at the polls is a bit hard to defend on principle, and it's even harder when the principle in question is that the Senate should be governed democratically."

That has to be one of the more crackpot things I've ever read. Ezra: how "raw" is it for the GOP to march lockstep after getting their heads handed to them in 2006 and 2008? The Public wanted to be "governed" by the Dems. The GOP didn't care. Why should the Dems roll over after November? Will they benefit from handing the GOP another 2 years to prevent them from governing?

I really don't get you're ongoing meme that the Dems need to play nice. They need to govern. Their failure come November is specifically tied to their failure to govern the economy. They won't be able to do that in January with the filibuster in place. You're suggesting that they should just throw in the towel and accept another two econimic lost years, or hope for Magic Ponies to save us all.

Posted by: toshiaki | July 26, 2010 2:39 PM | Report abuse

@toshiaki, I agree.

This will happen not because of principles, or how it looks in PR terms (the public really couldn't care less), but because the Democrats need to be able to GOVERN, or else they will get thrown out on their asses the next election. Thus, the filibuster will be removed for one of the only reason anything gets done in the Senate - so they can save their own job.

Posted by: michaelh81 | July 26, 2010 2:57 PM | Report abuse

Democrats should announce BEFORE the election that they are going vote to eliminate the filibuster no matter who controls the Senate next year. The Vice President can call for the vote regardless of who the majority party is. The vote to eliminate the filibuster would actually be easier to win if Republicans hold the majority - the only people voting against it would be the small number of "centrist" Senators who actually benefit from the current system.

Posted by: Alex_Olivares | July 26, 2010 3:04 PM | Report abuse

I just can't quit you, filibuster discussion.

Alex, agreed. Go public, announce you'll do the vote either way. If some centerist R's want in, they could influence it (55 votes or whatever). If the VP calls for the vote, so much the better as he ought to be more beholden to the President than to the senate.

Just do it. For the good of the country. Wanna make it 55 votes? Great. But do something. As it is you are embarrassing yourselves.

Posted by: BHeffernan1 | July 26, 2010 7:15 PM | Report abuse

Ezra, I am not sure what you are concerned about...you have already achieved Liberal Utopia!

Massive entitlments, never ending unemployemnt benefits, universal health care on the horizon, handouts as far as the eye can see. What more could you ask for?

I suppose there is the little problem of the $109 trillion in unfunded entitlments and the massive interst on the national debt which will consume greater than 90% of tax reciepts in 10 years.

Still, as taxes are raised, and more US jobs and investment move overseas, the Liberal Utopia will be strengthened since an even bigger proportion of American Families will be dependent on handouts from Uncle Sam! Ahhhhh dolce vita!

Posted by: ELF2 | July 26, 2010 11:56 PM | Report abuse

"Neutering the opposition after the voters favored them at the polls..."???

Ah beltway wisdom: if the Dems win a majority in the democratic House of Representatives, but it is a smaller majority than they have now...Republicans win! Despite being in the minority. Despite more Americans having Democrats representing them. Likely Despite having more Americans voting for a Democrat in the House.

Please do not say this again. Ever. Democrats will likely lose seats, but unless the House turns over to Republican control the Democrats will WIN THE ELECTION.

If two teams play a double header, and the first game A wins 9-3, and the second they win 5-4: then...A won BOTH games! B did not win game two because they did better and the score was closer!

Posted by: jakek | July 27, 2010 4:30 PM | Report abuse

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