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Why Democrats can't break the filibuster

Matt Yglesias mentioned Tom Udall's hope that the Senate will adopt new rules that reform the filibuster and ease some of the obstruction at the start of the 112th Congress. I did an interview with Udall on this plan here. I don't think it'll work.

Matt hints at my qualms in his post: "it’s quite easy to imagine the Senate exercising Udall’s 'constitutional option' amidst the hope and enthusiasm associated with the beginning of the Obama administration. ... Now 18 months later, Washington is older and wiser on these matters. But will it really be politically feasible to adopt a more sensible ruleset with a less-popular President Obama and a diminished majority in the Senate?"

You can't return from an election in which the public decisively voted for the Republicans and then say that in the interests of democratic governance, you're taking away the tools Senate Republicans use to exert control over legislation. The difficulty with procedural reform is that it's both hard to do and it's never quite the right time. When you've got enough power to do it, you're probably trying to pass actual legislation that you can show to voters. When that power ebbs, procedural issues seem more urgent, but you don't have the power to pursue them.

A better option -- and my favored option -- is for Democrats to join with Republicans to set rules that will go into place six or eight years from now. That should hopefully erase the question of who will benefit in the next Congress, and allow everyone to think like a member of both a potential minority and potential majority. It's like setting rules from behind Rawls's veil of ignorance.

Another option is to lay the groundwork in advance. Republicans did a lot of filibustering during the 2006 to 2008 period, and because George W. Bush was in office, Democrats weren't doing a lot of legislating. But Democrats didn't use the quiet period strategically. There was no effort, for instance, to force Republicans to actually stand up and filibuster popular initiatives so that Democrats could create a public argument against the filibuster that would've justified action in 2008.

Instead, they waited for procedural obstruction to stall their agenda and destroy their poll numbers and then decided it was an important issue worth addressing. That doesn't get you anywhere.

By Ezra Klein  |  July 20, 2010; 2:08 PM ET
Categories:  Senate  
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Comments

Are you going to post about the latest leaked Journolist email from Spencer Ackerman and Chris Hayes re: Jeremiah Wright?

http://online.wsj.com/article/SB10001424052748703724104575379194025225772.html

Posted by: clawrence12 | July 20, 2010 2:29 PM | Report abuse

"procedural obstruction" may have stalled the democratic agenda, but the dems managed to "destroy their poll numbers" on their own.

Posted by: NoVAHockey | July 20, 2010 2:42 PM | Report abuse

"It's like setting rules from behind Rawls's veil of ignorance."

I find these shoehorned Wire references to be supremely satisfying.

Posted by: strawman | July 20, 2010 2:44 PM | Report abuse

By all means, though, please advocate setting Senate rules behind a "veil of ignorance."

Posted by: clawrence12 | July 20, 2010 2:45 PM | Report abuse

And now I realize Ezra's talking about John Rawls the philosopher! I think we can agree that this is both personally embarrasing, and also a somewhat more disappointing metaphor.

Posted by: strawman | July 20, 2010 2:48 PM | Report abuse

The problem with the filibuster is it broke the senate AND nobody understands it or cares. The Democrats, with huge majorities and the presidency get no credit for saying the mean Republicans won't let them pass meaningful legislation.

The flip side is killing the filibuster dead would make a huge difference in allowing the elected party to actually govern AND it wouldn't be a big deal politically. If the election of 2010 isn't about the filibuster (and it isn't) then 2012 won't be either.

Whichever party controls the senate in 2012 will have been elected with a mandate to govern. That means killing the filibuster.

Posted by: bswainbank | July 20, 2010 2:56 PM | Report abuse

Ezra said that "[Dems] can't return from an election in which the public decisively voted for the Republicans and then say that in the interests of democratic governance, you're taking away the tools Senate Republicans use to exert control over legislation."

Actually, assuming Dems still hold the majority, yes they can eliminate or modify the filibuster rules--and they should. The primary reason that Dems are unpopular is because, despite their accomplishments, they're perceived to be ineffectual--primarily when it comes to jobs. Get rid of the filibuster, get things done, and Dems should be fine.

Posted by: cjo30080 | July 20, 2010 2:57 PM | Report abuse

bswainbank and cjo30080 have not fully considered the "veil of ignorance" and whether the Democratic Party will ever be in the Senate MINORITY. By all means, get rid of the filibuster right before you need to use it.

Posted by: clawrence12 | July 20, 2010 3:00 PM | Report abuse

Wow, Ezra, I usually agree with you, but I think this is you at your most misguided.

The constitutional option is MUCH MORE politically feasible now than ever, certainly than 18 months ago. Then, there was all this hope for bipartisanship, coming together in a crisis, yadda yadda. Zero mandate for the constitutional option.

Now, everyone in America knows bipartisanship is a pipe dream. And everyone hates both parties. And a large majority want more action on things like job creation and new forms of energy. Hence, the public finally wants something like the constitutional option.

Posted by: michaelh81 | July 20, 2010 3:05 PM | Report abuse

I have not fully considered the "veil of ignorance". I don't even know what that is.

I fully expect that the GOP will one day control both houses and the presidency. When that happens they should have the power to enact whatever policies the Constitution permits and American people elected then to enact.

Posted by: bswainbank | July 20, 2010 3:11 PM | Report abuse

Completely disagree with you, Ezra. Come 2011, the Dems will have seen 2 straight years of the GOP lockstep decision to not support anything legislatively. They know that if they don't go to majority rules that they'll have another two years of Senate GOPers not supporting a single thing, and actively hoping the economy stays off the cliff to win the 2012 elections. They will also know that they are doomed in 2012 unless they can pass bills to right the ship: there are no magic ponies that will make the economy better. There will never be a clearer time to change the rules.

The question becomes who *other than* Lieberman and Nelson in the caucus will vote against changing the rules? All they need is 50 votes, as Biden will break the tie.

You notion of working with the GOP to change the rules was proven a waste of time this week: to simply get the votes of Snowe and Collins, the Dems had to gut all the Jobs items out of their bill. Dem victory? No: GOP victory. The Dems can't even frame a narrative that all the coming job losses are the fault of the GOP.

Posted by: toshiaki | July 20, 2010 3:17 PM | Report abuse

Assuming the Democrats control both houses in 2011, they have two choices. They can either reform the filibuster and get hammered for that or not reform the filibuster and get hammered for not getting their agenda done. There is no choice that allows the Democrats to escape getting beat up. Filibuster reform will be a 2 week story at most.

There's a good change to tie filibuster reform to the pending failure of the deficit commission. It's likely the deficit commission will fail to get consensus and if they manage to report something out, it's likely that Congress will not be able to enact it. This gives an opening for reform as the grand bargain strategy goes away.

Posted by: windshouter | July 20, 2010 3:20 PM | Report abuse

The Dems should come in, adopt rules to kill the filibuster and then shout from the hilltops that they welcome the Repubs doing the same to them as soon as they get a majority, thereby making it a default step taken at the beginning of each Congress. The fault lies with senators not wanting to give up power they hold as individuals which is far beyond what they were elected to hold. Nowhere else. There isn't a red senate, there isn't a blue senate there are only power hungry senators.

@strawman -- funny one.

Posted by: BHeffernan1 | July 20, 2010 3:57 PM | Report abuse

This post misses two critical points. First, there's no way that any Republicans will vote for filibuster reform, whether the time period is 6 years from now or 60. The GOP use of the filibuster and the need for filibuster reform has become a partisan issue in the same way that everything else is a partisan issue. Republicans who voted for filibuster reform would be implicitly admitting that the GOP has been abusing the filibuster. Maybe Lindsay Graham and Bob Corker would admit to that, but there's no way you're going to get 67 votes in the U.S. Senate to say that the filibuster is currently being abused. Moreover, by making government ineffective, the filibuster tends towards conservative outcomes.

Second, the percentage of the American public who understands the filibuster and how it operates is so embarrassingly small that an aggressive effort to reform the filibuster will swing approximately zero votes. It doesn't matter whether there's a mandate from the public for Democratic policies. If less than 10% of the public doesn't understand the issue, it doesn't matter. On the other hand, there's a decent shot that the Democrats could survive this election with majorities in both houses intact. If that happens, there would be a HUGE political difference between the American people seeing Congress be effective and get stuff done and the American people seeing Congress gridlocked and dominated by special interests.

You're probably correct that Democrats WON'T reform the filibuster, especially after losing seats in November. But that's because Democrats, especially centrist Democrats, are strategically incredibly stupid. I'm counting on you to be telling Democrats how to do the smart thing, not pandering to their stupidity by deferring to conventional wisdom on an issue this essential.

Posted by: satya232 | July 20, 2010 4:00 PM | Report abuse

If the Democrats can't entirely get rid of the filibuster, how about tinkering with it a little bit. For example, require 41 votes to hold a filibuster instead of 60 votes to break one, something that would put the burden on the filibustering party to round up the requisite Senators. Or reduce the number of places a bill can be filibustered, i.e. don't allow filibustering of the beginning of debate. Or change rules to speed up the process, getting rid of the 30 hour ripenings and so on. Or get rid of unanimous consent in certain situations so that one Senator can't block the body's progress on items that will get 80 or 90 votes in support.

Posted by: meander510 | July 20, 2010 4:03 PM | Report abuse

If the public "decisively voted for the Republicans" wouldn't the republicans want to get rid of the filibuster, having just won control of the Senate?

Or are you saying that if the Democrats win a majority of Senate seats, but fewer Senate seats than they won in 2008, the public has "decisively voted for the Republicans"? Because that would be terrible reasoning.

Posted by: Jason45 | July 20, 2010 4:11 PM | Report abuse

"You can't return from an election in which the public decisively voted for the Republicans and then say that in the interests of democratic governance, you're taking away the tools Senate Republicans use to exert control over legislation."

Of course you can? Why can't you?

The Republicans understand that this is is a GAME. You do whatever have the power to do. If you need to foul a man, you foul him. Then you take the penalty, if it's called on you. If not, then you don't.

Suppose the dems reform the filibuster. The Repubs will scream about the evil socialists, the oped pages will be filled with screeds about the end of the world, David Broder will have a fainting fit.

BFD. The only thing that matters is, will legislation that the public favors get passed between January 2011 and November 2012.

If the answer is yes, than the chances for a a Democratic senate being retained in 2012 goes up.

Posted by: Bloix | July 20, 2010 4:20 PM | Report abuse

Historically, major procedural changes of this type (overcoming systemic veto points that are being used to block progressive change) only occur in the heat of political struggle, when measures urgently supported by a majority are very publicly and unambiguously being bottled up by a minority.

Thus, the Rawlsian veil-of-ignorance approach will never work, precisely because it doesn't give anyone a sufficiently lively interest in making it work. The same quality that makes it less controversial also makes it something no one is going to take the trouble to interrupt the normal course of politics-as-usual to undertake. This route leads nowhere.

Your second suggestion is much nearer the mark. But this also means that your (and Yglesias') pessimism is, not so much wrong, as wrongly directed. The reason to be pessimistic is not because the political opportunity has passed, but because the Democratic party seems utterly disinclined to try to create such opportunities, now or ever.

To do this, the Democrats would first have to unite around a measure that is sufficiently large in its impact, and sufficiently strongly desired by a popular majority, that its fate would be a paramount public issue. Right now would in fact be an excellent time to propose such a measure, since it would give the party a way to go on the offensive in the upcoming election.

They would then need to force the GOP to block said measure in the most public way possible, such that there can be no doubt exactly who is stopping that measure from becoming law. Then, when popular frustration with the obstructionist minority is at its height, that is when you strike.

This was, by the way, Truman's strategy in the election of 1948. Granted that was a Presidential election and the Congress was in GOP hands. But that is not the essential difference. The essential difference is that Truman was able to frame that election as a clear, *partisan* choice between the party who wished to pass popular measures with immediate and direct benefit to the majority of voters, and the party that (despite its own platform) clearly wished to frustrate those measures. He then frankly called on the electorate to vote its interests.

That is the type of campaign to run, to generate the kind of popular support necessary to ram through the necessary procedural changes in its aftermath. And it would be quite possible to run such a campaign, even now, centered around a sufficiently large-scale assault on unemployment and economic stagnation, preferably highlighting proposals that many in the GOP would find it very painful to oppose--for instance, a full payroll tax holiday.

It would be possible, but it is not going to happen. The Democratic party leadership transparently has no stomach for such a battle. They prefer timidity to boldness, ducking to acting, and they hope to cling to power by these means. They will fail, and their hesitant efforts to bring change thus far, will be blamed.

Posted by: amileoj | July 20, 2010 4:24 PM | Report abuse

PUBLISH JOURNOLIST!

Posted by: daveredhat | July 20, 2010 4:33 PM | Report abuse

Dems are fools to allow this mess to continue one more day than necessary.

They are allowing 41 to make 59 look like bumbling idiots. And, given the chance to correct it, they should.

They look weak and ineffective, despite being the most accomplished senate in a generation. Think about that. Someone needs to be a bit more strategic!

Every incentive for the minority party screams 'burn the house down' for a small electoral advantage, right now. No one cares about procedural votes.

They should be leaders, govern, and let the chips fall as they may.

Bye, bye, filibuster. We enjoyed how you were used to stop civil rights, punish the jobless, and make every bill more corprate friendly than necessary! But, your days should be numbered now (unless Harry Reid likes being in a tight race with a total goof ball).

Posted by: rat-raceparent | July 20, 2010 4:36 PM | Report abuse

"You can't return from an election in which the public decisively voted for the Republicans and then say that in the interests of democratic governance, you're taking away the tools Senate Republicans use to exert control over legislation."

If it takes 51 votes to set those rules at the beginning of the session, why can't you?

You're saying that the majority party can't invoke majority rules because they won't have as big a majority as they did in the previous session and that invoking majoritarian rules won't be popular with the -- anyone, anyone -- minority party!

Do you think the Senate Democrats would rather have two years of complete obstruction to follow the two years of almost complete obstruction we just had or take an unpopular procedural vote that no one will understand or remember six months later?

Posted by: Porchland | July 20, 2010 4:46 PM | Report abuse

The "veil of ignorance" refers to John Rawls' idea that rules should be drawn up without knowing where one wouold be in the society. Should we outlaw slavery? What would you decide if you did not know whether you would be a slave or a slave owner? The point is to devise rules without knowing which side they will benefit when they take effect.

The problem is that no one in Congress can see beyond the next election.

Posted by: Mimikatz | July 20, 2010 4:53 PM | Report abuse

daveredhat, I have to assume that Ezra (or someone?) has access to the full Journolist archive, even after Ezra took it down. There's still a $100,000 reward pending!

Posted by: clawrence12 | July 20, 2010 4:59 PM | Report abuse

mimikatz, your definition of "problem" is the Founding Fathers genius.

Posted by: clawrence12 | July 20, 2010 5:01 PM | Report abuse

I agree with the commenters who say that the issues of reduced majority have nothing to do with why the Democrats are unlikely to eliminate the filibuster. As far as I can tell the vast majority of Americans are woefully uninformed on issues of Senate procedure, and prefer it that way. Additionally, if they change this right at the start of the next Congress, then even if there's a right-wing firestorm in the media over it, it'll be long gone before the next election. In short: almost nobody will notice this change, and those who do will largely forget about it before it becomes a real issue.

The real problem is that even now, with 59 Senate Democrats who have been getting slaughtered for 18 months by nutty procedural rules, it is unlikely that Harry Reid can find 50 votes to remove the filibuster. The reasons that Democrats will give for refusing to do the needful are varied, but I think that chief amongst them is that the filibuster protects "centrist" Democrats from having to take votes that they don't want to take.

Posted by: quarkpt | July 20, 2010 5:23 PM | Report abuse

DING DING DING! We have a winner.

Posted by: clawrence12 | July 20, 2010 5:30 PM | Report abuse

Maybe tomorrow (after Ezra speaks with an attorney) he can get his stories straight:

http://bigjournalism.com/jsexton/2010/07/20/journolist-ezra-kleins-secretive-conspiracy/

Posted by: clawrence12 | July 20, 2010 6:27 PM | Report abuse

"You can't return from an election in which the public decisively voted for the Republicans and then say that in the interests of democratic governance, you're taking away the tools Senate Republicans use to exert control over legislation."

You're wrong. You can do exactly that. It just depends on whether you care more about optics or results. It seems to me that the Obama administration has cared more about the former or the latter, and it has cost them plenty. People's memories are short. No one will still be holding a grudge about a change in Senate rules that makes Democrats more effective, two years after they change the rules.

And I'm willing to be money, that if the Dems don't make the change in the next session, the Republicans will do it when they take control next time...

Posted by: zosima | July 20, 2010 6:30 PM | Report abuse

The Constitutional / nuclear (depending on which party you belong to) option was threatened, but obviously not implemented, back when the Republicans were in the majority. Did you lose money on your bet back then too?

Posted by: clawrence12 | July 20, 2010 6:49 PM | Report abuse

> If the public "decisively voted for the
> Republicans" wouldn't the republicans want
> to get rid of the filibuster, having just
> won control of the Senate?

Should the Republicans win the Senate, they will NOT end the filibuster rule. They will simply ignore all Democratic "holds" and filibusters. Then upon returning to the minority the Republicans will inform the Democrats that the filibuster rule is still in effect and they expect their (Republican) holds and filibusters to be honored - and the Democratic leadership will comply.

sPh

Posted by: sphealey | July 20, 2010 8:31 PM | Report abuse

But look Ezra, as you know, what helps you or hurts you at the polls is overwhelmingly the economy.

If Democrats end the filibuster on the first day of the new Senate, and as a result can do a lot more good for the economy (and other important things), do you really think they'll be worse off in 2012?

Or by 2012 will the ending of the filibuster be by and large forgotten and the now rolling economy and all the additional accomplishments due to ending the filibuster far more of a factor.

And, please, let's think longer term; the country and our families will be around a lot longer than the next election or two; ending the filibuster would do tremendous good for decades, centuries, if the ban lasted that long which it full well might (after a while it might seem archaic to go back, like going back to non-direct election of Senators).

Posted by: RichardHSerlin | July 20, 2010 10:39 PM | Report abuse

And also:

"When you've got enough power to do it, you're probably trying to pass actual legislation that you can show to voters."

That's more of a reason to end the filibuster, not less.

If only the Democrats had abolished the filibuster at the start of this Senate! No Liebermans, Snowes, Nelsons, and Grassleys.

We would have gotten far better and more legislation. Cap and Trade, a much larger stimulus, much better health care bill with a public option, much better finance reform, and more.

Wanting to pass more and better legislation is the gargantuan reason TO end the filibuster.

Posted by: RichardHSerlin | July 20, 2010 11:04 PM | Report abuse

And, you can argue to the public, if there are big losses after midterms, that trying to end the filibuster when the Senate is close to even is the fair time to do it. Neither party gets a huge advantage from it at that time, compared to only trying when you have a commanding majority that can still be stopped but only with a filibuster.

Posted by: RichardHSerlin | July 20, 2010 11:08 PM | Report abuse

Getting rid of the Senate is my preferred method of fixing gvmt.

If that isn't feasible, then we need to get rid of the filibuster.

Fixing gvmt has NOTHING to do with any ONE election.

So, as soon as this coming election is over, Dems need to exercise the nuclear option in the Senate and destroy the filibuster at whatever point in the future they decide is right.

Posted by: Lomillialor | July 21, 2010 7:44 AM | Report abuse

I'm with most of the other commenters here. Worrying about what people think is exactly what the Democrats do way too often. I agree with barely anything the Republicans stand for, but you have to admire their determination to do whatever it takes to win. If the Democrats really believe in what they're doing, then they'll get rid of the filibuster. If 50% plus 1 is good enough in the House, it's good enough in the Senate. Frankly, I think the primary reason they'll resist is fear: what happens if the GOP takes over? And that's just plain cowardice. If the Dems believe that what they're doing is best for the country, they ought to have some conviction that they'll be rewarded for doing it. Kill the filibuster, and live with the consequences.

Posted by: ezra_reader | July 21, 2010 7:58 AM | Report abuse

"A better option -- and my favored option -- is for Democrats to join with Republicans to set rules that will go into place six or eight years from now."

Six or eight years of blockages and obstructionism in Senate? ARE YOU NUTS? Do you really think the US would survive this?

As you also wrote, "it's never quite the right time". So, if any time is as bad as another, DO IT NOW! Get it behind you. Waiting only increases the damage.

Posted by: Gray62 | July 21, 2010 12:18 PM | Report abuse

Ezra, this comment is so important I improved the writing and re-posted it. I hope you read it and think about it:

But look Ezra, as you know, what helps you or hurts you at the polls is predominantly the state of the economy at election time, and what direction it's moving.

If Democrats end the filibuster on the first day of the new Senate, and as a result can do a lot more good for the economy (and other important things), do you really think they'll be worse off two years later in 2012?

Or by 2012 will the ending of the filibuster be, by and large, forgotten, and the now rolling economy, and all the additional accomplishments due to ending the filibuster far outweigh it, be far more of a factor. With the filibuster gone, we could perhaps pass a big short term stimulus coupled with long term tax increases on the wealthy, carbon, cigarettes, etc., plus health care reforms, so the current economy roars back by 2012, AND the long term deficit forecasts move dramatically towards balance, or even go to surplus – believe me if that happens the ending of the filibuster two years earlier will be long forgotten and forgiven.

And, please, let's think longer term; the country and our families will be around a lot longer than the next election or two; ending the filibuster would do tremendous good for decades, centuries if the ban lasted that long, which it full well might (after a while it might seem archaic to go back, like going back to non-direct election of Senators).

Posted by: RichardHSerlin | July 21, 2010 2:48 PM | Report abuse

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