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How to end the filibuster with 51 votes

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If you can't manage the 60 votes to overcome a filibuster, you can't manage the 67 votes to change the rules and end the filibuster. At least in theory.

But in practice, there's another path open to the Senate's growing ranks of reformers: The so-called "constitutional option," which is being pushed particularly hard by Sen. Tom Udall, but is increasingly being seen as a viable path forward by his colleagues.

The constitutional option gets its name from Article I, Section V of the Constitution, which states that "Each House may determine the Rules of its Proceedings." In order to fulfill this constitutional order, the Senate must be able to, well, determine its rules. A filibuster, technically, is a way to stop the Senate from determining something by refusing to allow it to move to a vote. Because stopping the Senate from considering its own rules would be unconstitutional, the chair can rule against the filibuster, and the Senate could then move to change its rules on a majority vote.

One caveat: Many people, including Udall himself, believe this has to happen at the beginning of a new Congress. If it doesn't happen at the beginning of a new Congress, then Congress is considered to have acquiesced to the previous Congress's rules, and a filibuster against further rule changes wouldn't interrupt the constitutional right to determine the rules.

This is not a radical theory, or a partisan one: Both Richard Nixon, then the vice president and thus the president of the Senate, and Robert Byrd, then majority leader and considered the greatest parliamentarian to ever walk the chamber, have argued in favor of the constitutional option.

Martin Gold recounted Nixon's argument in a 2004 article for the Harvard Law Review: "Nixon reasoned that because no Senate could deny a future Senate the ability to exercise a constitutional right, and because Rule XXII, paragraph three [the filibuster] "in practice" prevented a majority of Senators from adopting new rules, Rule XXII, paragraph three, was unconstitutional," at least when it came to blocking consideration of new rules. Byrd was even pithier: "This Congress is not obliged to be bound by the dead hand of the past," he said.

But for all the theory, the constitutional option has never quite been used in practice. Instead, it's been repeatedly, and effectively, almost used. In 1917, Senate reformers were ready to use against the filibuster. A compromise was brokered, and that's how cloture -- the ability to shut off a filibuster -- was created. In 1975, reformers again were ready to wield it against the filibuster, and this time, a motion to uphold the constitutional option passed and a motion to table it failed. And again, a compromise was brokered, this time bringing the number of votes necessary to breach the filibuster down from two-thirds of the Senate to three-fifths. The option was also considered for various reasons in 1953, 1957, 1961, 1963, 1967, 1969, 1971, and 1979.

And that gets to the real role that the constitutional option could play: If Democrats lay out a clear path to changing the rules through a majority vote, and if they show enough unity to convince Republicans that they'll really try it, you might see a hasty decision to reach some sort of bipartisan compromise on the rules. But if Democrats push this strategy only to find themselves unable to follow through on it, they may find that they've lost their ability to protest rules changes if Republicans decide to pursue the same strategy when they eventually retake the Senate.

For more:
- CRS report on the nuclear and constitutional options.

- "The constitutional option to change the rules of the Senate" (also pdf) by Martin Gold and Dimple Gupta.

Photo credit: Ethan Miller/Getty Images.

By Ezra Klein  |  July 27, 2010; 2:48 PM ET
Categories:  Senate  
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Next: Another problem with bigotry

Comments

The requirement for a two-thirds majority for a budget or to raise revenue has destroyed California's governance. Why should we allow the same thing to happen to the U.S. as a whole? For fifty years, I've watched a small minority of right-wingers wreck the golden state, it's enough to make you weep.

Posted by: karenfink | July 27, 2010 3:07 PM | Report abuse

Did Republicans threaten to use this mid-session in 2005? When the Dems were filibustering Bush court nominees? If we're only talking legislative threat, why wait until the beginning of a session?

Posted by: zosima | July 27, 2010 3:12 PM | Report abuse

"This is not a radical theory ... Both Richard Nixon ... and Robert Byrd"

Nixon and Byrd! That's a good one.

Posted by: ostap666 | July 27, 2010 3:16 PM | Report abuse

zosima, the beginning of the session is when it's constitutionally authorized to change the rules on a majority vote. Otherwise it takes 67 votes to change the rules.

Posted by: ctnickel | July 27, 2010 3:16 PM | Report abuse

The option discussed is a double-edged sword. The Senate is a continuing body; therefore, to argue that the Senate can change its rules at the beginning of a session of the House implies that the Senate also lacks the ability to continue its committees. [See Mc­Grain v. Daugh­er­ty, 273 U.S. 135, 180 (1927), among others.]

But Democrats do have a way of interpreting reasonably clear statutes in their own favor. Just look at what's happening in various "blue" states today: Democrat Rangel of New York is attempting to settle ethics charges, Democrat Kerry of Massachusetts is trying to justify tax "avoidance" involving his yacht, Democrat Blagojevich of Illinois is defending his attempt to sell the Senate seat vacated by Democrat Obama, and Democratic Party members in Bell, California are justifying their high salaries and lifetime pensions.
With leaders like these, who needs public debate at all -- it would be considerably less expensive, considerably more "efficient," if we'd all just keep our opinions to ourselves, refrain from discussion, and let the Rangels, Kerrys, and Blogojevicks tell us all what to do and how to think.

Posted by: rmgregory | July 27, 2010 3:16 PM | Report abuse

Ezra: You keep bringing this up and would that it be as easy as you suggest. Rule V (2) of the Rules of the Senate say: "2. The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules."

The reason for this is that unless the House, where the entire membership is elected every two years, only one third of the Senate is elected for each two year session of Congress.


Rule XXII says, with regard to cloture:

"2. Notwithstanding the provisions of rule II or rule IV or any other rule of the Senate, at any time a motion signed by sixteen Senators, to bring to a close the debate upon any measure, motion, other matter pending before the Senate, or the unfinished business, is presented to the Senate, the Presiding Officer, or clerk at the direction of the Presiding Officer, shall at once state the motion to the Senate, and one hour after the Senate meets on the following calendar day but one, he shall lay the motion before the Senate and direct that the clerk call the roll, and upon the ascertainment that a quorum is present, the Presiding Officer shall, without debate, submit to the Senate by a yea-and-nay vote the question:

"Is it the sense of the Senate that the debate shall be brought to a close?" And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn -- except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting -- then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of."

That means that a two thirds vote is required to change the rules, including the rule that the rules continue from one Congress to the next.

Posted by: TedYazTrot | July 27, 2010 3:36 PM | Report abuse

rmgregory - It really doesn't imply that at all. McGrain v. Daugherty simply articulated the right of Senate committees to compel testimony across several sessions of Congress.

At no point in the decision did the Supreme Court indicate that they found the powers Ezra implies, powers expressly written into the Constitution, to be invalid. Indeed, it would be a striking omission if the Court failed to note in their judgement that they'd just invalidated a hundred or so years of constitutionally mandated Senate rights.

But perhaps you have more ken to the nature of their thinking than that.

Posted by: strawman | July 27, 2010 3:39 PM | Report abuse

TedYazTrot - a bit of a false equivalency. You lay out the elements of cloture, but that's not what the constitutional option argues. Rather, it says that since the ability of the Senate to establish it's own rules is written into the constitution, and if the filibuster, in practice, prevents them from executing that constitutional, then it can't be used to specifically block rule changes. It wouldn't matter if, to table a cloture motion, the Senate needed 99 votes and an unblemished sacrificial chicken, because the question isn't the mechanics of the filibuster. It's about whether the filibuster is even valid when establishing Senate rules.

Posted by: strawman | July 27, 2010 3:48 PM | Report abuse

Do it! Get it done!

It's time to get a functional government back. No matter if Democrats or Republicans are in the majority.

Posted by: dplionis | July 27, 2010 4:03 PM | Report abuse

I you turn the Senate into a majority rules body then what's the difference between the Senate and the House?

Posted by: RobT1 | July 27, 2010 4:29 PM | Report abuse

If it's possible, it will happen. Sooner or later. You can play it dirty or play it clean but it will happen. It would be admirable to play it clean.

Re legitimacy, I'll take Byrd's word on that over us blog commenters (erudite though we may be).

There's a rule in theater that you don't put a gun on the table in the first act if it's not going to be used by the 3rd act. The gun is now on the table. Thank goodness.

Posted by: BHeffernan1 | July 27, 2010 4:33 PM | Report abuse

Both sides know that the filibuster has to go eventually, since now that the Republicans have opened the Pandora's Box of filibustering pretty much EVERY single bill or nominee you oppose, Democrats will surely do the same when they are in the minority.

Therefore, both sides know it needs to be done, but both sides will cry foul when it is done against them. Additionally, members of the majority party will fear that they will look anti-democratic if they implement such a policy.

Therefore, at the beginning of the next session, there just needs to be a bipartisan group of Senators that comes together and says that 10 years from now, the filibuster will be gone or reformed.

Since neither side has any idea who will control the Congress in 2021, no one will know who will benefit. It would be better to fix this problem now rather than suffering through 10 years of stalemate, but better late than never.

Posted by: vvf2 | July 27, 2010 4:34 PM | Report abuse

RobT1: The Senate has representation based on states, the House has representation based on population.

Posted by: vvf2 | July 27, 2010 4:37 PM | Report abuse

So, if we follow the argument of strawman above, at the moment the House concludes a recess subsequent to an election, the Senate has sworn only 2/3rds of its typical complement and, given quorum, a simple majority (50% plus 1) of that sworn and seated 66.6% could vote to change the rules. If that is indeed the math Senate Democrats wish to apply... heaven help them (and us all).

Would it be wise to apply the same math to ratification of treaties? That's another issue, of course, but is worth considering.

Speaking of fools rushing in where wiser men fear to tread, we have some excellent recent examples of swift summary justice. By looking at Obama's firing of Sherrod and Obama's execution of levy against BP, we see a prime examples of the need for sober consideration -- unlimited debate -- before action is undertaken.

Posted by: rmgregory | July 27, 2010 4:44 PM | Report abuse

RobT1, well, you have to be older to run for a Senate seat, and there are 6-year terms. And, also, I'm sure, a metric ton of other stuff.

Posted by: MosBen | July 27, 2010 4:46 PM | Report abuse

Or, the Democrats could actually MAKE THEM FILLIBUSTER!
The absurd part of this is that the Dems are honoring the "gentleman's agreement" that says the intent to fillibuster is the same as doing it. Make them stand there and talk. Make them actually vote! The dems keep giving up BEFORE the fight!

Posted by: Rockfish66 | July 27, 2010 5:16 PM | Report abuse

The filibuster, which was not an original element of the Senate, has evolved over the body's history and has only recently become the upper chamber's standard operating procedure. The Senate was designed as a majority-rule institution that allowed for extended debate. Under the Constitution, the vice president is empowered to break 50-50 ties. Such a clause would be wildly out of place if the framers intended for a 60-percent majority to be required. The House of representatives had a filibuster up until 1890 and abolished it. What followed has popularly been called the "Battle of the Reed Rules". Thomas Brackett Reed 36TH & 38TH Speaker of the House.

It’s real operation is to embarrass the administration, to destroy the energy of the government, and to substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junta, to the regular deliberations and decisions of a respectable majority.
- Alexander Hamilton [Federalist Paper No. 22]

Posted by: JediRock | July 27, 2010 5:35 PM | Report abuse

Are you libs now saying your behind the Nuclear Option?? What changed your tune

Posted by: mandinka2 | July 27, 2010 6:23 PM | Report abuse

They should go back to the pre 1975 2/3 cloture requirement. Hey Ezra, if you really want mob rule why not advocate for a unicameral legislature like they have in Nebraska? Just get rid of the Senate. Not realistic but just go for it.

Posted by: Truthteller12 | July 27, 2010 6:28 PM | Report abuse

I have never been able to fathom filibusters, nor have I ever understood the "beginning of a new Congress" theory.

What part of "Each House may determine the Rules of its Proceedings" suggests that a chamber acquiesces in the previous session's rules for an entire Congress, unless it acts to change them at the outset?

Posted by: Itzajob | July 27, 2010 6:57 PM | Report abuse

The interesting thing is that as the Senate has harder to filibuster the rate of filibusters has gone up. My guess is that if we moved back to any one person can filibuster (and make them actually stand and talk) then we'll see more compromises. If anyone can block legislation it means that people will have to play nice or they won't get anything done.


This would all be moot if we moved to representational elections instead of first past the post.

Posted by: BradG | July 27, 2010 7:37 PM | Report abuse

itzajob wrote:
"What part of 'Each House may determine the Rules of its Proceedings' suggests that a chamber acquiesces in the previous session's rules for an entire Congress, unless it acts to change them at the outset?"
===============================
Generally speaking the rules of any gentlemen's endeavor are established at the outset, not "in the middle of the game".

Posted by: OttoDog1 | July 27, 2010 8:03 PM | Report abuse

The question is...WHY IN HELL DIDN'T THE DEMOCRATS PURSUE THIS IN JANUARY, 2009?

Oh, right...because the the Bu$h Administration was in charge....this is the first crack.

Rather convenient....

Posted by: victorponelis | July 27, 2010 8:38 PM | Report abuse

The filibuster is arguably more unconstitutional than anything being discussed. It's an anomaly of senate rules, a loophole, not something built into its foundation. It is anti-democratic, it represents minority rule, and while there may have been some justification for it in the past, it has been abused beyond all recognition for purely partisan reasons. All that I'm sure of. What I'm not so sure of is Democrats finding the spine to fix it in the face of what will inevitably be screeches of armageddon from the GOP.

Posted by: TonyQ82 | July 27, 2010 8:39 PM | Report abuse

I am going to see if I can find 51 votes to end your tenure at the Washington Post, Klein. Actually, that shouldn't be hard, but ending the filibuster will be, because both sides know that when their time come to be in the minority, they'll need it. Use your brain, Klein!

Posted by: georges2 | July 27, 2010 8:40 PM | Report abuse

Maybe they could agree to change it to 51 votes in 8 years or a fixed time, that way neither side knows who will get an advantage from the change. They can then consider the rule change for the good of the country rather than a short term partisan advantage.

Posted by: zzgorme | July 27, 2010 8:44 PM | Report abuse

Sorry Ezra, you and your fellow journ-o-lists have had your heyday. In 98 days the left-wing dingbat fantasy of complete control will come to a screeching halt. I hope you enjoyed it while it lasted. It will take decades to undo the damage of the Obama administration.

Posted by: get_it_right | July 27, 2010 8:46 PM | Report abuse

Ezra there is far more value in reading the Extra Value menu at McDonalds than reading what ever kind of pap you and Journolister state run flacks are writing these days. We will remember this in 98 days when over come Franken to fix the mess of 10 percent unemployment you have left this nation with.

Posted by: rf11404 | July 27, 2010 8:57 PM | Report abuse

Whatever the rules, no Senator or Representative from New England or California ever represents me. I'm fed up with the Leftists.

How about a Constitutional Convention? Maybe it's time.

Posted by: RealTexan1 | July 27, 2010 8:57 PM | Report abuse

Journolist,
Journolist,
Journolist.

Ezra Clown: JourNihilist.

Posted by: grunk | July 27, 2010 9:47 PM | Report abuse

The Republicans repeatedly threatened to use what they colloquially called the "nuclear option" DURING the Senate sessions while Bush was President. The "nuclear option" consisted of the President and the Republican leaders of the Senate simply declaring that there was no filibuster and taking the case to the Supreme Court. For those who wrote above, this so-called "constitutional option" can only be done at the opening of a Senate session; which is to say immediately following the election of new Senators. It must be the "first matter" put before the new Senate. If it is invoked, you can expect all sorts of gymnastic gyrations on the part of the Republicans to try to have some other matter be the "first matter" before the new Senate....they will shout, they will march, they will physically confront the Democrats, there will be fistfights and I fully expect guns to be fired to show the world the true masters of the Republican puppets - the guns and hate lobby. I will not be surprised if one or more of the newly elected Tea Party sickos kills a Democratic Senator and invokes immunity based on the act taking place on the Senate floor (as has been done in the past).

I can't wait.

Posted by: DCExile | July 27, 2010 9:50 PM | Report abuse

"Did Republicans threaten to use this mid-session in 2005? When the Dems were filibustering Bush court nominees? If we're only talking legislative threat, why wait until the beginning of a session?

Posted by: zosima | July 27, 2010 3:12 PM"

Yes. The GOP did exactly that, as threatened by Senator Frist under the guise of unleashing the nuclear option. The fact is, a government capable of action is better than a government paralyzed by inaction. We'll never know if policies proposed by the left or the right are better than one or the other so long as any substantive options are dead on arrival at the hands of the minority party. These days, elections turn on what the majority party failed to do, rather than what they managed to do, because the minority prevents progress, and then runs on the failure.

Posted by: hiberniantears | July 27, 2010 9:55 PM | Report abuse

I don't want Washington to do anything. Keep the filibuster. Even with the filibuster, the politicians have endangered America. Can't imagine what the clowns would do without Senate stagnation.

Posted by: JohnnyGee | July 27, 2010 10:00 PM | Report abuse

I don't want Washington to do anything. Keep the filibuster. Even with the filibuster, the politicians have endangered America. Can't imagine what the clowns would do without Senate stagnation.

Posted by: JohnnyGee | July 27, 2010 10:00 PM | Report abuse

As I recall from my Nuclear Option days, the 1975 vote in favor of the constitutional option plus the defeat of the motion to table actually resolved the question. It is the Senate rule that 51 votes are needed to change the rule at the start of a session.
It was precisely the vote on the motion and the defeat of the motion to table the ruling that filibustering judges was not constitutional that set the rule in the Nuclear Option case.

There is a distinction between the start of the session and the middle of a session.
That option would have allowed any future Senate to change the rules with 51 votes by finding any pretext that purports to separate one set of bills from another. A future Senate could rule that it is unconstitutional to filibuster bills involving Texas real estate or health care.
With 51 votes, the constitution means to Senate rules what the Senate says it does.

Posted by: windshouter | July 27, 2010 10:03 PM | Report abuse

I agree it is frustrating but it scared me when the repuglicans controlled the Senate with 51 votes. There has to be a way to stop them from completely destroying the country. Also, the Party of No is against anything and everything the Democrats propose... so be it. Let them run on that.

Posted by: Geopolitics101 | July 27, 2010 10:05 PM | Report abuse

More jive n`schuck from the JournoList juvenile.Ezra has no credibility.He should be parking cars at Morton`s.

Posted by: bowspray | July 27, 2010 10:38 PM | Report abuse

Bush & Republicans used Reconciliation to pass 2 UNFUNDED tax cuts for Billionaires - but had a hissy fit when Democrats used Reconciliation to pass health care reform.
Dick Cheney had to be called in for one of the tax cut votes to make the magic "51."
Republicans were determined to give those millionaires and billionaires tax cuts which didn't create jobs!

"Tax cuts create jobs." - Bush, hahahahaha - in China.

Posted by: angie12106 | July 27, 2010 10:44 PM | Report abuse

I predict that Ezra's enthusiasm for this maneuver will disappear in a NY minute should the Republicans retake the Senatea in 2010, which although unlikely might happen if a real "wave" election happens in November.

The frustration on the part of the Dems is absolutely palpable. They already HAD a filibuster-proof Senate until Brown got elected, and yet they did not take advantage of it. The Left, and in particular, the Far Left, is really PO'd at Obama for squandering their once in a lifetime electoral advantage. Come Novemeber, it will be long gone, as even if the Repubs don't take the House or Senate, it will be very close.

Posted by: CREEBOLD | July 27, 2010 10:49 PM | Report abuse

Gridlock is destroying government's ability to govern. One way or another the filibuster must go. If the 'Pugs gain control and wreak havoc for one term, so be it: in so doing they will only cement their doom.

Posted by: raschumacher | July 27, 2010 11:38 PM | Report abuse

Interesting scenario. The ability for either party to obstruct, whatever their reasons, hurts our country. The filibuster isn't sacred. Time has come to remove this impediment from the legislative process.

Taking the blunt instrument of a filibuster away will force both parties to act with less partisanship, and forge compromise. Taking the filibuster away will force them to do their jobs.

Just do it

Posted by: right_as_rain | July 28, 2010 12:49 AM | Report abuse

The thing you liberal filibuster haters need to remember is that before the filibuster there was effectively a 100 vote requirement to proceed to a vote so you ought to be happy that it only takes 60 now. There should be as much debate in the Senate as a Senator desires. That was the way the founders set it up. It only takes a simple majority for a bill to pass but only if Senators are prepared to proceed with a vote.

Posted by: Truthteller12 | July 28, 2010 1:23 AM | Report abuse

A fantastic very authoritative article on the constitutional option is by top expert Ian Millhiser at The American Prospect:

http://www.prospect.org/cs/articles?article=how_to_kill_the_filibuster_with_only_51_votes

Millhiser writes:

Because Reichelderfer prohibits a previous Congress from tying the hands of a future Congress, the rules governing Senate procedure in 2010 cannot bind a newly elected Senate in 2011. The old Senate rules essentially cease to exist until the new Senate ratifies them, so a determined bloc of 51 senators could eliminate the filibuster altogether by demanding a rules change at the beginning of a new session...

...Given the Roberts Court's penchant for mischief-making, it's possible that the justices would seize upon this argument and thwart the will of the Senate majority should such a majority vote to abolish the filibuster next January.

Such a turn of events, however, is exceedingly unlikely. For one thing, if the Supreme Court accepts the continuing-body theory, it would do a whole lot more than simply lock the filibuster in place. Were the mere existence of a legislator who has not stood for election since a law or rule was enacted enough to prevent newly elected lawmakers from repealing a recently enacted law, then all federal laws could be enacted with a six-year shield of invulnerability -- untouchable until the last senator present when the law was enacted stands for a new election. Nothing in the Supreme Court's precedents suggest that erecting such a shield would be acceptable, however -- indeed, they say quite the opposite. As far back as the Court's 1810 decision in Fletcher v. Peck, the justices unanimously declared that "one legislature is competent to repeal any act which a former legislature was competent to pass," acknowledging no exception for laws enacted within the last three election cycles.

There is also a profoundly practical reason why the Court is unlikely to undo a change to the Senate rules -- it lacks the authority to do so. Under a line of precedents stretching back to its landmark 1803 decision in Marbury v. Madison, the Court will actually refuse to hear any case involving a matter that is "textually committed to the political branches." In other words, if the text of the Constitution itself provides that a particular question must be resolved by the Senate, the House, or the White House, the Supreme Court won't stand in that branch's way.

Recall, then, that the Constitution does provide that "each House may determine the rules of its proceedings." Thus, the Senate's rules are up to the Senate, and the Senate alone, and the Supreme Court would be grossly overstepping its bounds to second-guess the senators.

End Quote

Posted by: RichardHSerlin | July 28, 2010 1:38 AM | Report abuse

I'm with Yglesias that if the Republicans move to eliminate it when they eventually, inevitably retake the Senate at some point in the unbounded future, no matter when it is, Democrats should leap at the chance. Because some day the Democrats will also retake the Senate again, and the Republicans will have to live under the rules they agreed to. It doesn't terribly matter which party does it, since they will both reap the benefits.

Putting off the change because it will temporarily benefit the dominant opposing party is very shortsighted indeed, since the other party is going to get it eventually anyway.

Posted by: HerooftheBeach | July 28, 2010 2:09 AM | Report abuse

The filibuster is the greatest element of our democracy - it stops the tyranny of the majority.

The world is wonderful - don't ruin it.

.

Posted by: YouCanPostThis | July 28, 2010 2:27 AM | Report abuse

Four points to consider in response to Klein:

First, why would the Democrats want to get rid of the filibuster? It would take an exceedingly short memory not to recall 2003-2007 when Republicans had majorities in both the House and Senate in addition to the presidency, and Democrats survived on the filibuster. Now, the tables are turned and Democrats suddenly want to get rid of it? Maybe until next January they want to get rid of the filibuster, or until the next time Republicans have a majority, but Democrats with any sense of history will move to preserve the filibuster in some form.

Of course, Byrd and Kennedy were the pair on the Democratic side of the aisle with the longest memories, so perhaps Democrats really are that foolish that they would follow the path that Klein lays out here.

Second, Klein completely ignores the strong argument against his plan that the Senate is a continuous body. Only a third of the Senate is replaced every two years, and the Senate typically treats itself as continuous. The House is a new Congress every two years, but the Senate, at least with respect to its rules, does not restart in quite the same way after every election. After all, two thirds of the members are still serving the same terms that they were before the election, and it makes no sense to treat them as a "new" Congress when they are two or four years into six-year terms. If the Senate is a continuous body, which many consider it to be, then the start of a new Congress is really an irrelevant marker that only applies to the House.

Third, the filibuster rule does not prevent the Senate from determining its own rules. It sets a high threshold for changing rules, but it prevents nothing, and so it can't be ruled unconstitutional simply on these grounds. Besides, were the Senate to declare all of its rules invalidated, by what process would it adopt new rules? Resetting all rules to zero at the start of a new session of Congress creates a quandary. The House has to vote in order to accept new rules, and yet it has no rules in place to determine how that vote is to be carried out. So how does the House vote to accept new rules without any rules in place? How would the Senate do this? The chambers can't hold a vote until they agree on rules governing voting, but they can't create those rules without a vote. Chicken and egg, but for this issue it is a relevant problem.

Finally, why does everyone want to turn the Senate into a miniature House? Populists already took the Senate away from state legislators with direct elections, which solved little of the corruption and turned senators into super-representatives. Now people like Klein want to make Senate rules like House rules, which are a yo-yo. Each time parties switch power, the new majority rewrites rules in their favor in the House. The Senate is more staid and less given to partisan swings. Perhaps cloture is broken, but removing it would usher in hyper-partisan legislating, hardly an improvement.

Posted by: blert | July 28, 2010 3:59 AM | Report abuse

I agree that the Filibuster must go. And I say the sooner the better. Of course the party in the majority in the Senate will be the ones to change the rule, so they will get the benefit for that cycle. Which um...the voters gave them by voting them in the majority right?

How exactly is majority rule in light of the current Filibuster abuse a strange concept in a democracy again?

But the other party will benefit later. And the country will benefit all around by having a government that can actually get things done.

Keeping the Filibuster the way it is being used now, and we can thank the republicans for setting the standard, will create a revolving party of No.

Or the current use can even set the stage for one rogue Senator (can anyone say Tea Party or libertarian) to Filibuster everything out of an ideological no/less government position effectively shutting down all legislation, and debate.

Either way, nothing will get done without a once in 20 year 60 vote majority because of the need to hold on to our sacred filibuster.

Posted by: chefbrian2 | July 28, 2010 4:19 AM | Report abuse

All I can say is "be careful what you wish for, you just may get it!" The Dems won't be in the majority forever and they may wish they had that filibuster back.

Posted by: ronjaboy | July 28, 2010 7:08 AM | Report abuse

TonyQ82 has got it right.

@georges2: Things are different. This time around the minority party, the Republicans, are applying the filibuster much, much more. There is a sense they are tying up not just one bill on one issue but many bills on many issues, bringing to a halt action in the Senate on all things the minority opposes.

@Truthteller12: The minority applies the filibuster not only to prevent a vote on a bill the minority opposes but to prevent mere debate on a bill the minority opposes, turning on its head the principle behind filibuster - extended debate.

Posted by: cmckeonjr | July 28, 2010 7:52 AM | Report abuse

Hey Zosoma, yes they did threaten it ("the nuclear option") eventhough the Democrats DID NOT FILIBUSTER Bush's extremist right-wing Supreme Court nominees.

Posted by: chase-truth | July 28, 2010 8:05 AM | Report abuse

The Senate is the sole judge of its own rules. If a Senate majority voted that every person speaking in the Senate had to stand on one foot there would be no appeal. The Senate can change its rules by a majority vote at any time. The failure of the Democrats to change the filibuster is due to one of two reasons, either the Democrats do not have 51 Democrats willing to change the rules or they are just plain dumb. Bill Frist, when he was Republican leader, threatened the "nuclear option" and we got two dreadful Supreme Court justices, Roberts and Alito.

Posted by: Desertstraw | July 28, 2010 8:36 AM | Report abuse

In virtually every other endeavor that involves votes or "scores", you only need to win by "ONE" to achieve victory. In the Senate, it seems you have to win by TWENTY to even move forward. No wonder so little gets done.
Change the rules ASAP and we will ALL be better off.

Posted by: jmsbh | July 28, 2010 8:51 AM | Report abuse

"I agree as a registered Voter/Vet USAF, Graduate Student, Masters Program, Professional Studies,
East Tennessee State University, and I forwarded this great article to the President who needs to do just that!

The Republicans did it time and time again, and we see the disasterous results they left the country in, who lost a record 8.5 Million jobs, left a record/debt/Bill/Deficit $1.5 TRILLION then left town/office the Pew Poll reported with the "LOWEST JOB APPROVAL RATING IN THE HISTORY OF THE UNITED STATES PRESIDENCY 20 PERCENT!

These are the facts folks, this is the criminal/Republican/record of the "Blew it Bush Admin, that the Republicans want so desparately to return too hoping you won't pay attention to the record/facts/MESS they left/dumped in your lap and the President's, that why I agree that the Democrats/President must do as the Republicans did, but this time, it's the Democrats in charge and they are helping the working/poor and the Middle Class, who need help after the Criminal/record/Mess/Republcans left for all American's to clean up, and the Republicans are hopeing America you won't remember the record/facts come November but this America will never forget the Criminal/Republican/record/mess that has ruined my country's economy and image around the world and that my fellow American's is a fact I hope your remember come November and vote the Republicans "OUT"
as the Republicans/party of "NO" hope you won't remember it, and hopes to return to doing the same thing if America is so foolish as to put them back in then America deserves what it gets!

The Party/NO/Republicans have ruined you good America, and now they are hopeing your keep blaming the President who has done a good job at cleaning up a Criminal/Republican/Mess that has left America deep in debt, an economy in ruines, and America's image in tatters!

These facts cannot be ignored and if America does put the Party/NO back in then America deserves more of the same from the party of "NO" and deserves what it gets!

I hope you won't forget why we are in this Criminal/MESS America and I can assure you it wasn't the Democrats who did it, it was the party/NO who ruined you and ruined you good, be sure now you/run and put some more Republicans back in that way they can finish you off better than any terrorists group could ever do, and their Criminal record is proof of that!

..."The Republicans sure do appreciate it...

Posted by: ztcb41 | July 28, 2010 9:19 AM | Report abuse

The US is a republic, not a democracy. Our founders did this on purpose, as they believed and history has proved that democracies become tyrannical. Just think about about the roller coaster of changing laws that citizens would suffer if a simple majority ruled in both chambers. Ease of legislation would also make repeal of legislation easy. (ie. health care) It is only contentious issues that create filibusters and thank God for that. As a people, we should support the filibuster, otherwise massive legislation could take place at the whim of a majority changing every 2 years with elections of House members. People rule would become party rule. Good governance is not about legislating quickly. Easy change would be the worst governance possible, Remember the Democrats screeching about the importance of the filibuster in years past to avoid "the tyranny of the majority?" That is one of the few things that I agree with them on, Unfortunately Democrats change their tune when they are in the majority, just as the Republicans would and have.

Posted by: kalojohn | July 28, 2010 10:24 AM | Report abuse

Ezra Klein 2005 when Republicans were in the majority basically this would be a power grab : http://www.prospect.org/csnc/blogs/ezraklein_archive?month=05&year=2005&base_name=done_deal (Credit Redstate.com)

Ezra Klein 2010 when Democrats are in the majority basically this is following the Constitution.

Posted by: ctpsb2 | July 28, 2010 10:43 AM | Report abuse

Jon Walker at Firedoglake and KagroX at Congress Matters both had this exact report seven or eight months ago. Yet here you are putting it up now like you are some revolutionary authority on the subject.

Posted by: bmaz | July 28, 2010 10:54 AM | Report abuse

There is no doubt that the filibuster can be ended with a simple majority vote, this is why the republicans threatened endlessly to kill it when they were in power. The real problem here is fear, if the Democrats kill the filibuster, and then lose their majority, they will be unable to stop the Republican ruination of the country. Republicans never worried about losing their majority, all they worried about was forcing thru their agenda. Democrats could learn a lesson, especially since they were handed a supposed filibuster proof majority, and did nothing with it.

Posted by: pblotto | July 28, 2010 10:59 AM | Report abuse

I have a better suggestion.

Pass a Constitutional amendment to eliminate the Senate, and instead have a unicameral legislature, like Nebraska (which, last I heard, hadn't gone to Hades in a handbasket).

Just think of all the money we could save!!!

Posted by: Nosy_Parker | July 28, 2010 11:42 AM | Report abuse

Or, the Democrats could actually MAKE THEM FILLIBUSTER!
The absurd part of this is that the Dems are honoring the "gentleman's agreement" that says the intent to fillibuster is the same as doing it. Make them stand there and talk. Make them actually vote! The dems keep giving up BEFORE the fight!

Posted by: Rockfish66
---------
The problem is that they are gentlemen and all they do is make a threat of filibuster to have an effect of not doing anything.

Incidentlly, when Byrd was younger: In 1988, while attempting to shut down a Republican filibuster of campaign finance reform legislation, then majority leader Robert Byrd even went so far as to invoke a power that hadn't been used since 1942: he dispatched the Senate sergeant-at-arms to arrest missing Senators and escort them to the floor. Oregon's Bob Packwood was carried onto the floor at 1:19 a.m., after a scuffle in which he attempted to jam his office door and ended up reinjuring a broken finger. Byrd didn't give up until a record-setting eighth cloture vote failed to end the debate.

Posted by: beeker25 | July 28, 2010 11:52 AM | Report abuse

JournoList......

Son, neither you or your employer have any credibility left.

Posted by: Spider79 | July 28, 2010 11:53 AM | Report abuse

Sorry Ezra, you and your fellow journ-o-lists have had your heyday. In 98 days the left-wing dingbat fantasy of complete control will come to a screeching halt. I hope you enjoyed it while it lasted. It will take decades to undo the damage of the Obama administration.

Posted by: get_it_right |
-----------
You must be in a COMA when the damage was already done by the Republicans rule for the past 30 years and that will take decades to undo.

Posted by: beeker25 | July 28, 2010 11:56 AM | Report abuse

It's interesting that Ezra's opinion on the "Constitutional Option" seems to rest not upon any understanding of what is constitutional, but upon who is in the majority. When the Republican majority tried to eliminate judicial filibusters in 2005 but were thwarted by the bipartisan "Gang of 14", Ezra had this to say:

"Crisis averted. Seven Republicans and Seven Democrats brokered a deal ... averting the nuclear option.

...

The filibuster is not blocked in future cases and all parties pledge to vote against attempts to end it for the duration of the 109th Congress. Jeff Dubner is unhappy, but I don't really see why.

...

With these seven promising to vote against any more attempts to end the filibuster for the duration of this Congress, it seems like we got what we wanted -- the preservation of the filibuster for the Supreme Court nominee.

...

So I'm happy.

...

Better yet, we can still hang this power grab on the Republicans' neck come 2006. As part of a wider argument about their abuses of power, it'll make perfect sense, and the fact that seven Republicans signed on to stop it will only strengthen our case."

So when the Republicans tried a more limited version of what Klein now proposes, he termed "the nuclear option" (What happened to the Constitutional Option?)to be a "power grab", and its defeat made him "happy". Now that he thinks that the Democrats will retain the majority but lose seats after the 2010 election, he thinks that "the constitutional option" is a great idea.

I wonder if his opinion will change if the Republicans run the table and win a thin majority in the Senate? If not, this brings a broader question to mind- Even though Klein is an opinion journalist and not a reporter, don't opinion journalists have to display a modicum of intellectual honesty to have their opinions respected? What's the point of reading the column if he is going to simply carry water for the Democratic cause du jour?

Klein quotes from 2005 taken from www.prospect.org/csnc/blogs/ezraklein_archive?month=05&year=2005&base_name=done_deal

Posted by: jakeg100 | July 28, 2010 11:56 AM | Report abuse

It's interesting that Ezra's opinion on the "Constitutional Option" seems to rest not upon any understanding of what is constitutional, but upon who is in the majority. When the Republican majority tried to eliminate judicial filibusters in 2005 but were thwarted by the bipartisan "Gang of 14", Ezra had this to say:

"Crisis averted. Seven Republicans and Seven Democrats brokered a deal ... averting the nuclear option.

...

The filibuster is not blocked in future cases and all parties pledge to vote against attempts to end it for the duration of the 109th Congress. Jeff Dubner is unhappy, but I don't really see why.

...

With these seven promising to vote against any more attempts to end the filibuster for the duration of this Congress, it seems like we got what we wanted -- the preservation of the filibuster for the Supreme Court nominee.

...

So I'm happy.

...

Better yet, we can still hang this power grab on the Republicans' neck come 2006. As part of a wider argument about their abuses of power, it'll make perfect sense, and the fact that seven Republicans signed on to stop it will only strengthen our case."

So when the Republicans tried a more limited version of what Klein now proposes, he termed "the nuclear option" (What happened to the Constitutional Option?)to be a "power grab", and its defeat made him "happy". Now that he thinks that the Democrats will retain the majority but lose seats after the 2010 election, he thinks that "the constitutional option" is a great idea.

I wonder if his opinion will change if the Republicans run the table and win a thin majority in the Senate? If not, this brings a broader question to mind- Even though Klein is an opinion journalist and not a reporter, don't opinion journalists have to display a modicum of intellectual honesty to have their opinions respected? What's the point of reading the column if he is going to simply carry water for the Democratic cause du jour?

Klein quotes from 2005 taken from www.prospect.org/csnc/blogs/ezraklein_archive?month=05&year=2005&base_name=done_deal

Posted by: jakeg100 | July 28, 2010 11:57 AM | Report abuse

Let's find as many ways to go against the American people. Hey, why not WaPo? Isn't that what you always advocate?

If the American people vote out the clowns, why would you think is is your "right" to continue to defy American will?

Americans did not want the health reform. But, you immorally, and unethically (if not illegally) crammed it down our throats.

But, what do you care, right? Once you're in the inner circle, you do not have to deal with the junk policies you push on everyone else.

Ah, the Democrats new byline:

The hell with what the people want!

Posted by: notbuyingit | July 28, 2010 11:58 AM | Report abuse

It's interesting that Ezra's opinion on the "Constitutional Option" seems to rest not upon any understanding of what is constitutional, but upon who is in the majority. When the Republican majority tried to eliminate judicial filibusters in 2005 but were thwarted by the bipartisan "Gang of 14", Ezra had this to say:

"Crisis averted. Seven Republicans and Seven Democrats brokered a deal ... averting the nuclear option.

...

The filibuster is not blocked in future cases and all parties pledge to vote against attempts to end it for the duration of the 109th Congress. Jeff Dubner is unhappy, but I don't really see why.

...

With these seven promising to vote against any more attempts to end the filibuster for the duration of this Congress, it seems like we got what we wanted -- the preservation of the filibuster for the Supreme Court nominee.

...

So I'm happy.

...

Better yet, we can still hang this power grab on the Republicans' neck come 2006. As part of a wider argument about their abuses of power, it'll make perfect sense, and the fact that seven Republicans signed on to stop it will only strengthen our case."

So when the Republicans tried a more limited version of what Klein now proposes, he termed "the nuclear option" (What happened to the Constitutional Option?)to be a "power grab", and its defeat made him "happy". Now that he thinks that the Democrats will retain the majority but lose seats after the 2010 election, he thinks that "the constitutional option" is a great idea.

I wonder if his opinion will change if the Republicans run the table and win a thin majority in the Senate? If not, this brings a broader question to mind- Even though Klein is an opinion journalist and not a reporter, don't opinion journalists have to display a modicum of intellectual honesty to have their opinions respected? What's the point of reading the column if he is going to simply carry water for the Democratic cause du jour?

Klein quotes from 2005 taken from www.prospect.org/csnc/blogs/ezraklein_archive?month=05&year=2005&base_name=done_deal

Posted by: jakeg100 | July 28, 2010 12:03 PM | Report abuse

The filibuster requires BOTH sides to compromise


It is a formula for compromise, not gridlock.

Obama went around the country for years saying he was the master of compromise, he comes into office and suddenly he wants it all his way.

That is not a problem with the filibuster, it is a problem with Obama.


.

Posted by: YouCanPostThis | July 28, 2010 12:09 PM | Report abuse

How pathetic and desperate is Ezra Klein to look for inspiration to Tricky Dick Nixon and a Klansman like Robert Byrd for inspiration!! Was the journolist fiasco so embarrassing for Klein that he has lost his mind? And, btw, the Dems will be loving the filibuster again in the spring of 2011...

Posted by: tarabrady54 | July 28, 2010 12:21 PM | Report abuse

How pathetic and desperate is Ezra Klein to look for inspiration to Tricky Dick Nixon and a Klansman like Robert Byrd for inspiration!! Was the journolist fiasco so embarrassing for Klein that he has lost his mind? And, btw, the Dems will be loving the filibuster again in the spring of 2011...

Posted by: tarabrady54 | July 28, 2010 12:22 PM | Report abuse

The recurring theme here is how Republican will ruin this country if the filibuster is eliminated. It is a logic fear considering that the Repubs had 8 years of practices screwing things up.

But I say they are ruining the country now too with the Filibuster too. Can we imagine a worse situation then what we have now? I can't. Every single Bill is filibustered regardless of popular citizen support.

Besides for war spending (which dumped the money for teachers losing 100,000 jobs), can anyone here name a Bill that was not Filibustered, or threatened to be?

I say forget this fear when the other guys are in power. It cannot get worse then it is now. Especially if both sides play this game.

Posted by: chefbrian2 | July 28, 2010 12:25 PM | Report abuse

A very nice and enlightening article. I always appreciate it when someone takes the time to write things that educate rather than denigrate.

It is time that majority rule means something. These "super" majorities have a valuable purpose under very strict circumstances. However, the Party of No has decided to use the filibuster to block everything. Hence, there goes any efforts to provide for the majority.

Based on what I see and hear on the news, it seems that our democratic republic is headed toward a major breakdown. The overhyped fearmongering coming from the radical right is driving us right over the cliff. I pray for an everygrowing group of moderates in our country who will vote based on principles rather than on blind allegiance to some form of fringe agenda. The hatred coming out of the teaparty movement is scary. Where are the statesmen who claim to be a part of this movement?

Posted by: EarlC | July 28, 2010 12:34 PM | Report abuse

Another important leftist opinion brought to you by the Washington Post and their know-nothing, 23 year old D.C. "journolist" propagandist.

Identical idiotic opinions will soon emanate from the other corners of the fever swamps of liberal political "thought".

Posted by: hurtubises | July 28, 2010 12:36 PM | Report abuse

rmgregory: "By looking at Obama's firing of Sherrod and Obama's execution of levy against BP, we see a prime examples of the need for sober consideration -- unlimited debate -- before action is undertaken."

And by looking at the vast swaths of legislation that has been killed or delayed by the filibuster, we see prime examples of how unlimited debate can allow a minority to prevent any action from being undertaken and make governance almost impossible.

You shouldn't note only the upsides of "unlimited" debate without considering the terrible downsides. Pure majority rule can generate mistakes, but any system will have mistakes. Allowing a minority to block legislation will create gridlock for both sides. There is no other major legislative body that works this way, and there are good reasons for it.

Posted by: dasimon | July 28, 2010 12:38 PM | Report abuse


The filibuster requires BOTH sides to compromise
It is a formula for compromise, not gridlock.
Obama went around the country for years saying he was the master of compromise, he comes into office and suddenly he wants it all his way.

That is not a problem with the filibuster, it is a problem with Obama.

Posted by: YouCanPostThis
* * * * ** * *

There are so many factual errors in the above copied post that I'll just say that Obama has truly been a master of compormise otherwise we would not have a health industry overhaul, financial industry overhaul, and on and on. Had Obama had his way, we would actually be in much better health, financial, and economic positions. He tried very hard to get support from the Party of No only to get a meager one or two votes here and there on a few of his major initiatives.

The Party of NO has become so proud of their performance that they will go into the fall campaigns proudly proclaiming that they are indeed the Party of No. When you have no hand to play, you fold. It is time for the GOP to just fold.

Posted by: EarlC | July 28, 2010 12:43 PM | Report abuse

YouCanPostThis: "The filibuster requires BOTH sides to compromise

"It is a formula for compromise, not gridlock."

It is a formula for gridlock when it's not in the minority's political interest to compromise. I think that's been clearly evident as Democrats have made compromise after compromise only to see legislation blocked in the Senate time after time.

Democrats proposed health care legislation much like what Republicans proposed in response to the Clinton plan, and then watered it down even further. It got zero Republican Senate votes. They proposed cap-and-trade which McCain touted when he was running for president. Zero Republican Senate support today. McConnell said last decade that disclosure was the answer to campaign finance issues. No Republican Senator was willing to cross the aisle for a clean disclosure bill.

That's not working for compromise. That's allowing a minority to block legislation because it's not in their political interest to do allow anything to get done. If they were interested in compromise, we'd have seen it by now.

For elections to have consequences, it's time for the filibuster to go. Otherwise, Democrats will do the same to Republicans when the situation is reversed, and the Republicans will be crying bloody murder while Democrats tout the alleged sanctity of "unlimited debate."

Posted by: dasimon | July 28, 2010 12:46 PM | Report abuse

Several people have commented that the republicans are abusing the filibuster and using it more than any other time in history.

There's another way to look at this. You could just as easily say that the democrats are doing far less consensus building than any other majority in history.

Reagan managed to pass legislation while he had a democrat congress partly. How was this possible - just because of the good-will of democrats? - HAH!

When democrats start compromising they tend to pick off a few republicans. If they compromise a bit more and build a consensus, they get even more republicans to go along. Instead, they've shut out the minority totally, so we shouldn't be surprised by the resulting filibusters.

Posted by: RickHap | July 28, 2010 1:24 PM | Report abuse

RickHap: "Reagan managed to pass legislation while he had a democrat congress partly. How was this possible - just because of the good-will of democrats?"

Democrats crossed party lines when it was in their political interest to do so. It was easy for conservative Democrats to go along with popular items like tax cuts (especially when they weren't paid for).

By contrast, there are few if any liberal Republicans left, and it's not in their political interests to cross party lines if they want to regain power.

Democrats have compromised over and over again and not come up with Republican senate votes. Few if any Republicans have said "if you just do X, I'll be on the bill." Instead, Democrats have included X and Republicans have kept moving the goalposts saying "well, I'd like to see Y too." Sure, if they adopted the Republican agenda they'd have lots of Republican votes, but that kind of defeats the purpose of being in the majority--and of elections having consequences--doesn't it?

Posted by: dasimon | July 28, 2010 1:38 PM | Report abuse

rmgregory: "we see a prime examples of the need for sober consideration -- unlimited debate -- before action is undertaken."

But the filibuster is not being used for "sober consideration"; it's being used to kill legislation the minority disagrees with. Just look at the recent extension of unemployment benefits. Do we really think that those who voted no on cloture really believed that the issue needed more debate? They said they thought the extension should be fully paid for. The majority thought otherwise. There was nothing left to debate, so there was no procedural reason to vote against cloture.

Those who voted no did so not because they thought more discussion would be useful but because they disagreed with the majority and wanted to kill the bill on its substance. That's an abuse of procedure, and that's why the rules need to be changed.

Given the evils of an occasional too-hasty vote and allowing the minority party to prevent any vote, I'll take the former.

Posted by: dasimon | July 28, 2010 1:44 PM | Report abuse

dasimon: "And by looking at the vast swaths of legislation that has been killed or delayed by the filibuster"

Yeah, they're delaying or killing bills that Congress keeps trying to vote on before anybody has bothered to read them.

Or in the words of Nancy Pelosi "We have to pass this bill to find out what is in it".

I'm ok with delaying or killing bills if the vote occurs before anyone knows the details of what is in it and what it will do. Maybe you're a big fan of buying a pig in a poke; but I'd rather have some knowledge before I support sweeping changes.

Clearly I'm a reactionary obstructionist who is standing in the way of progress (*assuming we'd get progress from these changes, which can;'t be known as nobody actually reads the bills anymore)

Posted by: gekkobear1 | July 28, 2010 2:04 PM | Report abuse

This is shameful. After creating the Journolist cabal, why is Ezra Klein still employed?

Oh, and this scheming to change the rules is ahameful, too. I am beginning to think that Democrats are not just different, they are somewhat evil and nasty.

Posted by: fallenstar2005 | July 28, 2010 2:07 PM | Report abuse

The way the liberals have bashed the republicans on being obstructionist, you would think it might be better for them to become the minority party. I mean, good grief, the Democrats had, at one time, a 60 vote majority and they still cry about the minority party. If the minority party has this much power, then I would advise them to become the minority party. It is, after all,what the Democrats crave most- Power over everything.

Mr. Klein - Time to come clean on those Journolist names. Release all your members for full disclosure.

Posted by: grapids38 | July 28, 2010 2:19 PM | Report abuse

While Byrd may have favored the 'constitutional option', he himself opposed eliminating the filibuster in the article referenced below from just a few months ago.

Byrd of course is famous for USING the filibuster to try and DEFEAT the Civil Rights Act of 1964. Good thing Republican votes allowed cloture to be achieved over the objections of Byrd and the other racist Democrat Senators.

Byrd in May 2010:
http://www.huffingtonpost.com/sen-robert-byrd/the-filibuster-and-its-co_b_581919.html
'I heartily commend the Majority Leader for this progress, and I strongly caution my colleagues as some propose to alter the rules to severely limit the ability of a minority to conduct a filibuster. I know what it is to be Majority Leader, and wake up on a Wednesday morning in November, and find yourself a Minority Leader.'

Posted by: rwalsh00 | July 28, 2010 2:31 PM | Report abuse

More from Byrd:

'The Committee must, however, jealously guard against efforts to change or reinterpret the Senate rules by a simple majority, circumventing Rule XXII where a two-thirds majority is required.

As I have said before, the Senate has been the last fortress of minority rights and freedom of speech in this Republic for more than two centuries. I pray that Senators will pause and reflect before ignoring that history and tradition in favor of the political priority of the moment. '

Posted by: rwalsh00 | July 28, 2010 2:32 PM | Report abuse

The filibuster is intended to bring about debate. However, when you have a Democrat involved, debate means you see it their way or you're an obstructionist. The Democrats don't want to debate, they want to rule. The Democrats don't want the electoral college, they want a flat-out vote count so they can win the major cities and lord themselves over anyone who doesn't live in the population centers.

In short, the Democrats are against most of the things that make this country great and the only reason people think about it is because they control the media and all the Journolist people agree with them.

Posted by: bflat879 | July 28, 2010 2:42 PM | Report abuse

The GOP has devolved into a pitiful remnant of anything deserving respect. All they know how to do is obstruct, because it is in their political interest to keep the Democrats from meaningful accomplishments -- regardless of the harm it does to the country in the meantime.

That behavior of "party before country" crosses the border on treason. They are collectively a bunch of lieing hypocrits whose sole intent is power. Power to utterly destroy the middle class at the expense of their buddies in the boardroom.

Pathetic. They are pathetic excuses for congresspeople. They are pathetic excuses as human beings. Boehner doesn't even know if his brothers and sisters have jobs, great Family Values, John!

Posted by: ethanquern | July 28, 2010 2:53 PM | Report abuse

"The thing you liberal filibuster haters need to remember is that before the filibuster there was effectively a 100 vote requirement to proceed to a vote"

Truthteller12, the first filibuster was in 1841 when there were 26 states and, thus, 52 senators.

So how could there possibly be a 100 vote requirement, as you say?

Posted by: mnbeancounter | July 28, 2010 2:53 PM | Report abuse

Ezra Klein should be restricted to the comic section of the Washington Post.

Why is this fool still writing for this organization?

He has conspired to violate a sacred trust that is crucial to our freedoms...most of all...the freedom of the press.

He no longer has any credibilty.

Posted by: jkptak | July 28, 2010 3:07 PM | Report abuse

Ezra Klein is a child. He thinks like a child, acts like a child, and writes like a child. The obvious question of Klein is: if the Republicans manage to get a majority of 51 votes for the next Senate, will Klein still support an end to the filibuster?

I would bet not. Ezra Klein is a child hypocrite.

Posted by: RickCaird | July 28, 2010 3:15 PM | Report abuse

Interesting comments, for the most part.
Too bad you have to wade through some rather idiotic dribble to get to them.

Posted by: tricarim | July 28, 2010 3:56 PM | Report abuse

gekkobear1: "they're delaying or killing bills that Congress keeps trying to vote on before anybody has bothered to read them....I'm ok with delaying or killing bills if the vote occurs before anyone knows the details of what is in it and what it will do."

That's simply not true. Everyone knew what extending unemployment benefits would do. Yet almost all the Republicans voted against cloture. The idea that they voted no so we could have further discussion defies reality, because there wasn't anything more to discuss; they were voting to block the legislation on the merits.

As for health care, again it's absurd to suggest that one has to read every line of every bill to "know what's in it." Otherwise Congress would never get anything done. That's why representatives have staffers.

Most cloture votes have not been to give members more time to read legislation. Health care was debated for over a year. Those who voted no on cloture would have voted no regardless of how much time it took because they wanted to stop the legislation. The idea that they just wanted everyone to "read the bill" makes for rhetorical cover, but does anyone really doubt they would have voted no on cloture a week, a month, even six months later? I believe McConnell said he'd do everything he could to stop the legislation, and that includes using his minority power to kill it even if there was nothing to add to the discussion.

Posted by: dasimon | July 28, 2010 5:19 PM | Report abuse

bflat879: "The filibuster is intended to bring about debate. However, when you have a Democrat involved, debate means you see it their way or you're an obstructionist."

Again, that's not true. Democrats have compromised time and time again. The health care bill was based on Republican ideas (how long did the Senate's "gang of six" go on?). So was cap-and-trade. So was the deficit commission. Yet Republicans used the filibuster not to encourage more debate, but to block the legislation (some Republican cosponsors voted against their own deficit commission bill). When there's little other explanation than obstructionism, then there's no reason to call it anything other than what it is.

"The Democrats don't want the electoral college, they want a flat-out vote count so they can win the major cities and lord themselves over anyone who doesn't live in the population centers."

There are plenty of Republicans who support a national popular vote system. A 2007 poll showed 72% support a national popular vote for president, including 60% of Republicans. http://www.nationalpopularvote.com/resources/Wash-Post-Kaiser-Harvard-June-2007.pdf Rural states get most of their influence through their equal representation in the Senate. Whatever they get through the electoral college is marginal by comparison. (And why shouldn't urban areas get more attention? When was the last presidential campaign where candidates offered an urban policy?)

"In short, the Democrats are against most of the things that make this country great"

If that's the case, then people should vote for a Republican majority and allow elections to have consequences. It's not justification to allow a minority to block legislation. Unless, of course, you want to see the Democrats doing the same thing if/when control changes to the Republicans.

Posted by: dasimon | July 28, 2010 5:34 PM | Report abuse

Posted by: karenfink
The requirement for a two-thirds majority for a budget or to raise revenue has destroyed California's governance. Why should we allow the same thing to happen to the U.S. as a whole? For fifty years, I've watched a small minority of right-wingers wreck the golden state, it's enough to make you weep.
\\\\\\\\\\\\\\\\\\\\\\\\\\\\
Karen-

I was around when Prop 13 happened and they weren't "a small minority of right-wingers." People were being thrown out of their homes because of oppressive property taxes and the way the legislature and local governments were doling out money to feel-good programs. Property taxes increases were running 50 percent to 100 percent or more, annually.

Basically, the people of California DO NOT trust their government, with tax revenues.

Since then, we have heard all of the Prop 13 gloom and doom stories, but no one has reported that according to California's State Board of Equalization data, property tax revenue has increased 800% from $5.6 billion a year to $50 billion.

Sales, income and corporate taxes, have increased over 500%, over the same period. This does not include "penalty assessments" that are 400%+, tacked onto a fine, for a moving violation.

So, why is the State of California so broke? It isn't the "Right Wingers."

When I moved to NoVA, I was shocked to find other people I went to school with and worked with, living back here. California, especially Los Angeles, is so "Nanny State," business oppressive and fiscally unsound, that the big dollar / taxpayer earners from the science and technology fields have left town and so did business.

Look at the cost of a home in the San Fernando Valley. I have a great job, a house on a golf course and belong to a country club, here in NoVa.

Good luck finding a home in Tarzana / Encino / Woodland Hills for less than a million, right on a golf course.

When California funds programs like freebies for illegal aliens, people vote with their feet.

Exhibit A-
Free Lunches:

http://www.latimes.com/news/local/la-me-summer-meals-20100630,0,6438591.story

Exhibit B-
Why work, when you can be on Funemployment?

http://www.latimes.com/news/local/la-me-funemployment4-2009jun04,0,7581684.story

Posted by: Computer_Forensics_Expert_Computer_Expert_Witness | July 28, 2010 5:48 PM | Report abuse

Ezra, has this been cleared by JournoList Group?

Posted by: theaz | July 28, 2010 6:09 PM | Report abuse

Be careful what you wish for you phucking Liberals. Your day of reckoning is coming.

Posted by: hz9604 | July 28, 2010 7:01 PM | Report abuse


Fire Klein.

Posted by: screwjob18 | July 28, 2010 7:43 PM | Report abuse

@Computer Forinsics - You, sir, are either ill-informed or a flat out liar. There were exactly ZERO people thrown out of their houses in California due to property tax increases. That is a lie. Either you are repeating some bull-pucky you learned from Howard Jarvis or you pulled that idea right out of your rectum. It ain't true.

You talk about the cost of housing in VA compared to the LA basin as if Prop 13 isn't important to the boom and bust cycle of housing in CA. Prop 13 provides a large incentive against housing stock turnover and against building new multi-family urban housing. Did you consider that the LA "density everywhere" model is also an artifact of LA being the only large urban area in the United States that is geographically constrained by mountains and ocean and also a city that largely grew up after 1920? Did you consider the Prop 13 perverse incentive that encourages taking residential properties off the tax roll via inflation and that also provides a strong disincentive to reinvestment? Lastly, did you consider the "white flight" right to the edges of the city in LA and how that has impacted the aerospace industry and the other high tech industries in LA by inflating the price of residential properties? I mean, you could spend a year and 10,000 pages writing about all the ways that Prop 13 hurts California's economy, provide perverse incentives for the wealthy and takes money from the middle class and gives it to the wealthy. You could write a whole additional book on the problems with generational, tax free wealth created by Prop 13. I have neighbors here in the Monterey Bay that live in a multi-million dollar home and have a family income well below $65k. They are in their 30's and OWN this home because his father bought in 1978, put it in a trust and then transfered it to his son in small chunks. They pay $2700 a year in property taxes. Do you think that is good for CA?

Posted by: KurtOvermeyer | July 28, 2010 7:49 PM | Report abuse

Filibuster insures that a significant majority is needed to pass important legislation. Stop worrying about this. Our founding fathers screwed up when they did not require term limits. These yo-yo's get elected and then only work to get government money for their district, so they can be reelectd. None of them have any concern for the national debt. Term limits would solve this problem.,

Posted by: sportsfan2 | July 28, 2010 8:18 PM | Report abuse

@KurtOvermeyer-

1. I was there, working with Paul Gann and Howard Jarvis.

2. My statistics are referenced, like the State Board of Equalization.

3. Instead of saying "thrown out," let me be more specific; tax sales and people selling to get out, so it did not impact their credit rating.

4. The "Aerospace Boom" puttered out in the '90's after almost 20 years and has been on the decline, ever since. Most businesses have bailed out of California, due to high taxes and the excessive cost of utilities, especially when the LA City Council "steals" the surplus that the Department of Water and Power generates, instead of allowing it to be placed into improving the infrastructure and is forced to raise rates.

5. I grew-up in the San Fernando Valley, where once there were ranches containg strawberry fields, citrus, and olive groves as well as dairy farms, which I used to frequent. People like Norris Poulson, Sam Yorty and especially the Tom Bradley adminstrations exacerbated the situation by allowing of massive growth in the San Fernando Valley, without a mass transit infrastructure that other parts of Los Angeles has. Today, the San Fernando Valley is still the "red-headed stepchild" that still suffers, but the rest of Los Angeles doesn't.

In conclusion, about your friends up in Monterey Bay, let me say this. What the heck business is it of yours how much they pay? It isn't your money and the law is quite clear as to ownership and the benefits.

The problem I see, with you and the rest of the Obama-Nutzis is that you are envious, greedy, insatiable, wanting instant gratification, a free ride and to punish those who have worked dilligently to accrue some sort of wealth to either live or pass down to our children. Your friends are blessed and extremely fortunate that the tax man isn't coming, but the greedy people like yourself, continue to complain.

Well guess what. Fix your own freakin' wagon and quit coveting another's good fortune. If you don't like the tax structure, MOVE!!! That's what I did. The money I earn is the fruits of my labor, not yours!!!

All California has to do is stop the spending and kick the public unions out, to start on the road to recovery.

Posted by: Computer_Forensics_Expert_Computer_Expert_Witness | July 28, 2010 9:07 PM | Report abuse

sportsfan2: "Filibuster insures that a significant majority is needed to pass important legislation. Stop worrying about this."

What is "important"? And why should a "significant majority" be required? Why not let elections have consequences? If Democrats act the same way when Republicans get the majority, it practically insures that NO important legislation will be passed. That would make the nation essentially ungovernable. So I'm going to continue worrying about it because I'd like to see a governable nation.

Moreover, the filibuster does not apply to some fiscal measures; the Bush tax cuts passed by a 50-50 vote with Cheney breaking the tie. That was extremely important legislation and did not require any kind of "substantial majority"; indeed, it didn't get a majority of senators at all.

"These yo-yo's get elected and then only work to get government money for their district, so they can be reelectd. None of them have any concern for the national debt. Term limits would solve this problem."

I understand the frustration, but I think term limits would only make the problem worse. Legislating is complicated enough. Putting new people continually in place with little experience would give more power to lobbyists who know how things work and who have too much influence already. Indeed, I think term-limited state legislatures have run into just such problems.

Moreover, there are many representatives who do terrific jobs. I would hate to lose their services on account of a relatively small number of hacks in Congress.

Rather than term limits, we should have public campaign financing. That way, incumbent hacks would face the threat of real opposition, and those doing a good job would have little to fear. Pork will always be with us, but it's a minor problem (a tiny part of the budget) compared to other problems.

Posted by: dasimon | July 28, 2010 9:51 PM | Report abuse

Computer_Forensics: "The problem I see, with you and the rest of the Obama-Nutzis is that you are envious, greedy, insatiable, wanting instant gratification, a free ride and to punish those who have worked dilligently to accrue some sort of wealth to either live or pass down to our children. Your friends are blessed and extremely fortunate that the tax man isn't coming, but the greedy people like yourself, continue to complain."

You need to back up your assertions with facts. There are many wealthy people who support Obama; they know they are "fortunate" not because they don't pay taxes but because they've made a lot and done very well, and that the physical and social infrastructure provided by government--in addition to their own hard work--has had a hand in their success.

Just look at the hue and cry about letting the Bush tax cuts expire for the wealthy. You'd think the world economy would collapse as a consequence. All that's being proposed is returning the top rates to those of the Clinton era, and as I recall those rates were no impediment to job creation, wealth creation, or the ability to pass on large amounts of money to one's family.

Everyone I know who has looked at budget numbers seriously has concluded that getting a handle on the problem will require both spending cuts and tax increases. If you think the tax structure is already unfair to the wealthy, what are the options? Tax the poor and middle class more?

And if higher taxes would help get our fiscal situation in order, stabilize the economy, and increase asset values, I think that's a deal most people would take. I'd gladly pay Clinton-era rates if my portfolio would go back to Clinton-era levels.

I'm wealthy, I pay high taxes, and I don't think that's unfair. I don't think it's "greedy" for "us" (after all, we are our government) to educate kids from families who wouldn't be able to afford the market price for education, or help the elderly who worked hard their whole lives but couldn't get jobs with salaries that allowed them to save enough for self-supported retirement, or provide health insurance for people who are working hard at minimum wage jobs and can't pay for coverage.

But some people feel differently. That's why we vote. And that's why we have majority rule...except, apparently, in the US Senate.

Posted by: dasimon | July 28, 2010 10:09 PM | Report abuse

Ezra Ezra Ezra is it so much trouble for you guys to be at least a bit consistent in your own personal beliefs. I mean I know you are biased in favor of the Left but in 2005 in an article you wrote for The American Prospect you called the Republican threat to do away with the filibuster was a POWER GRAB now that it's the Democrats considering it it's a-ok right.
You better think twice what you wish for. It's pretty irresponsible to act as if you will always be in the majority and weakening what tools the Minority has to work with may just come back to haunt you down the road.

Posted by: Michael_Dugas | July 28, 2010 11:09 PM | Report abuse

When the Republicans, then in majority, hinted that they might do something similar, just a few years back, The Democrats had a hissy fit, and called that the "Nuclear Option", because they claimed it would destroy the Senate.
We haven't had any real fillibusters in quite a few years now. We just have Democrats pretending that is the reason they can't pass certain legislation, that, in fact, they just can't agree on.

Posted by: kesac | July 28, 2010 11:26 PM | Report abuse

Michael_Dugas: "in 2005 in an article you wrote for The American Prospect you called the Republican threat to do away with the filibuster was a POWER GRAB now that it's the Democrats considering it it's a-ok right."

Michael Michael Michael: Ezra has also called Democratic attempts to do away with the filibuster in mid-term as a power grab.

In fact, Ezra has an entry responding to your point posted before you made your post. Check it out: http://voices.washingtonpost.com/ezra-klein/2010/07/filibuster_reform_and_power_gr.html

Posted by: dasimon | July 28, 2010 11:48 PM | Report abuse

Ezra

Go for it! I have been on a personal crusade to eliminate the filibuster in the Senate.Here is my Google blog from April:

Sunday, April 4, 2010
End the filibuster!
Here is a copy of a letter I sent VP Biden (and also Ed Shutz and Rachel Maddow):

I am a strong supporter of this administration and President Obama. I have a suggestion on how to finally end Republican obstructionism: End the Senate filibuster by changing the rules.
As you well know, the filibuster is a rule made by the Senate and is not in the Constitution. There was a Supreme Court Ruling in 1892 - United States versus Ballin - which found that changes to Senate rules could be achieved by a simple majority. Changing the rule to a simple majority would restore democracy to the US Senate and allow elections to have some meaning. This is necessary since the Republican Party plans to stop any legislation from passing the Senate.
I remind you of the rules to change the filibuster:
(from Wikipedia)
A senator makes a point of order calling for an immediate vote on the measure before the body, outlining what circumstances allow for this. The presiding officer of the Senate, usually the vice president of the United States or the president pro tempore, makes a parliamentary ruling upholding the senator's point of order. The Constitution is cited at this point, since otherwise the presiding officer is bound by precedent. A supporter of the filibuster may challenge the ruling by asking, "Is the decision of the Chair to stand as the judgment of the Senate?" This is referred to as "appealing from the Chair." An opponent of the filibuster will then move to table the appeal. As tabling is non-debatable, a vote is held immediately. A simple majority decides the issue. If the appeal is successfully tabled, then the presiding officer's ruling that the filibuster is unconstitutional is thereby upheld. Thus a simple majority is able to cut off debate, and the Senate moves to a vote on the substantive issue under consideration. The effect of the nuclear option is not limited to the single question under consideration, as it would be in a cloture vote. Rather, the nuclear option effects a change in the operational rules of the Senate, so that the filibuster or dilatory tactic would thereafter be barred by the new precedent.
It is time to change this rule and return the Senate to a real democracy. Only then can President Obama's initiatives be made into law.
Posted by Larry at 3:16 PM 2 comments

Posted by: larrys3255 | July 29, 2010 3:45 PM | Report abuse

@dasimon
(My comments are embedded)

Yes, I can sell-out like Jamie Dimond (Chase), Barbara Streisand and Jeff Immelt (GE).

...Bush tax cuts expire for the wealthy.

> They expire for everybody who pays taxes. Welfare rats, illegals that don't pay taxes and the shiftless and lazy, want raises in welfare and benefits, at taxpayer expense. Screw 'em.

You'd think the world economy would collapse as a consequence...

> The Clinton era didn't tax insurance plans, have a 55% rate on death taxes, there was no cap on medical flex-spend / HSA's and since people generally earn more than under Clinton, when dollarized, we end up paying more and enjoying it less, while 48%+ don't pay a dime!!! The money I earn pays for goods and services, which translates into jobs and tax revenue. When my taxes go up, I have less to spend and the money goes into a government rat hole, where people become enabled and not "free" to achieve.

Everyone I know who has looked at budget numbers... Tax the poor and middle class more?

>As Joe Bite-Me sez, "Everybody has to have skin in the game." When 48+% of working Americans and resident aliens don't pay ANY Federal Income Tax, it's time they did their "patriotic duty" and stepped-up to the plate.

And if higher taxes would help get our fiscal situation in order...

>I disagree. The way to prosperity is the creation of wealth through opportunity and incentivization. Handing out $250 checks to seniors, out of control stimulus money, which went down a rat hole, taking over GM and offering a two-year unemployment program is killing this country and wait until bond rates skyrocket.


I'm wealthy, I pay high taxes, and I don't think that's unfair.

> Send Tim Geithner a check, on top of your current taxes. Don't volunteer my (or anybody else's) money.

I don't think it's "greedy" for "us" ... to educate kids from families or help the elderly... or provide health insurance for people who are working hard at minimum wage jobs and can't pay for coverage.

> Who said life is fair? People and government need to live within their means, not be like vampires and suck off what isn't yours. I went to school, paid for it myself, worked nights and weekends, while others sponged off the system, while partying in Palm Springs or Mammoth Lakes. If people choose to work at minimum wage jobs, they can choose to advance themselves or suffer the consequences. I chose the former. The elderly? If they were stupid enough to squander their money and not invest in their 401k, that was their choice. Let them move to some place where the cost of living is within their means.

>If people can't pay for coverage, there is always Medicaid, the free clinic or CASH.

But some people feel differently. That's why we vote. And that's why we have majority rule...except, apparently, in the US Senate.

> People DO NOT TRUST GOV'T. That's why we have a cloture rule in the Senate. It's a still majority rule.

Posted by: Computer_Forensics_Expert_Computer_Expert_Witness | July 29, 2010 5:11 PM | Report abuse

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