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Not your father's filibuster (or your mother's)

I’m glad to see that my recent columns on the dysfunctional Senate and the wall of Republican obstruction there are stirring up comment, both from a reader whose letter The Post published on Monday and from Colby King, a colleague I admire and usually agree with. We need to put the dysfunction of the Senate front-and-center in our political discussion, and the more debate, the better.

In his letter, Richard L. Lobb of Fairfax accused me of having inconsistent views on the filibuster because of a 2003 column in which I wrote: "The filibuster is the only way to prevent the president from creating a federal judiciary dominated by ideologues of his own persuasion, appointed to satisfy his political base." Mr. Lobb asks: “If a filibuster was justified merely to keep two conservatives off the bench, why should it not be used by senators who believe that the health-care bill would be a disaster for the country?”

Quoting a columnist against himself is always fair. But I would suggest to Mr. Lobb that I am not being inconsistent, because what I was discussing then is quite different from what I have been talking about in my recent columns. I was not suggesting in the 2003 column that the filibuster be used as a matter of routine, which is what is happening now. I said that it should be used narrowly in the case of two nominations to send a specific message to President Bush. “There is a desperate need now for moderate judges and for less partisanship in the nominating process,” I wrote in that column. “If Bush were willing to reach out and consult with his opponents, the judicial wars would end. Until that happens, the filibuster is the only way to prevent the president from creating a federal judiciary dominated by ideologues of his own persuasion, appointed to satisfy his political base.” I still believe that. And, in fact, most of Bush’s nominations were not blocked by the filibuster. At the point the earlier column was written, as I noted, the Senate had approved 22 of Bush’s Circuit Court nominees and 101 nominations to district courts. I was hardly calling for the promiscuous use of filibusters, and it was not being used promiscuously.

That was then. Now, Republicans in the Senate have decided to use the filibuster on just about everything, even the recent defense appropriations bill, which, when all the delay was over, passed with overwhelming Republican support. In his excellent column on the filibuster earlier this week, the New York Times’ Paul Krugman cited important research by Congressional scholar Barbara Sinclair of UCLA on the fact that we are confronting something very new:

In the 1960s, she finds, “extended-debate-related problems” — threatened or actual filibusters — affected only 8 percent of major legislation. By the 1980s, that had risen to 27 percent. But after Democrats retook control of Congress in 2006 and Republicans found themselves in the minority, it soared to 70 percent.

Look at those numbers again: The filibuster used to be unusual – 8 percent in the 1960s. Now it’s routine – 70 percent in recent years. The filibuster has become a standard part of the way the Senate does business. That is wrong, and it creates dysfunction.

Here what Sinclair herself writes in “The New World of U. S. Senators,” her essay in Congress Reconsidered:

The last few years, and especially 2007-2008, have seen the Senate closer than ever to true gridlock. The minority party seems to perceive less danger to its reputation in almost constant obstructionism, perhaps because attentive citizens are so split along coinciding ideological and partisan lines….This is not a situation conducing to major policy accomplishments . . . .a legislative body that cannot respond to the problems that concern the people eventually loses legitimacy.

And that is what’s happening now.

If we were just confronting the old filibuster, used occasionally, I would have no problem going along with Colby’s view that liberals should just “suck it up, and get on with it.” But the new obstruction is very different from what’s gone on in the past, and that needs to be underscored over and over until a remedy is found -- or until the minority finally starts paying a price for its approach and decides to reconsider. This is a point worth making even if doing so requires one to stay on a “high horse.” Honest, Colby: I’ll be happy to climb down whenever the endless filibuster stops.

By E.J. Dionne  | December 22, 2009; 8:41 PM ET
Categories:  Dionne  | Tags:  E.J. Dionne  
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Next: The Senate: an unprincipled body

Comments

Dionne is, sort of, being consistent. His position is Democrats are justified in using a filibuster against a Republican agenda and Republicans are not justified in using a filibuster against a Democratic agenda. Very simple, really.

Posted by: Aprogressiveindependent | December 22, 2009 9:33 PM | Report abuse

Dionne is being totally consistent, as he clearly explained in the article. The republicans are recklessly damaging our democracy for their own narrow interests. What comes around goes around, and they are not going to like it when the shoe is on the other foot.

Meantime, the special interests are draining our treasury. I think we need to make Senators actually filibuster by having to read stuff or whatever, as is provided in the Constitution. The automatic filibuster has got to go!

Posted by: bsumpter3 | December 22, 2009 10:00 PM | Report abuse

Isn't there a difference between a threat to filibuster and an actual filibuster? At some point isn't it worthwhile to just take the filibusters to task, let them drone on and on, and see how the public reacts to their stalling tactics?

Posted by: rlplant | December 22, 2009 10:30 PM | Report abuse

I love irony. A "progressive" citing 1960's statistics to justify his partisan position. That's all ya got EJ?

Posted by: kberron | December 22, 2009 10:35 PM | Report abuse

Come, come, EJ. You are being completely disingenuous. You justified the Democratic filibuster on judicial nominees as follows: “There is a desperate need now for moderate judges and for less partisanship in the nominating process,” I wrote in that column. “If Bush were willing to reach out and consult with his opponents, the judicial wars would end. Until that happens, the filibuster is the only way to prevent the president from creating a federal judiciary dominated by ideologues of his own persuasion, appointed to satisfy his political base.”

OK, using that logic, let's sustitute the healthcare bill. “There is a desperate need now for moderate healthcare reform and for less partisanship in the legislative process. If Obama were willing to reach out and consult with his opponents, the healthcare wars would end. Until that happens, the filibuster is the only way to prevent the president from creating a federal healthcare system dominated by ideologues of his own persuasion, enacted to satisfy his political base.”

Of course, you would never dream of making such a statement. That is because you believe that the Obama reforms are indeed moderate, which course is absurd, which is why you are being totally hypocritical on this issue.

Posted by: fairandbalanced4 | December 22, 2009 10:35 PM | Report abuse

sen stabenow stated the republicans have used the filibuster 101 times this year. starting jan 5th they have been the party of no

Posted by: dem4evr | December 22, 2009 10:36 PM | Report abuse

We could eliminate a large part of the filibuster problem if the senators ACTUALLY HAD TO FILIBUSTER. All we see these days is the THREAT of a filibuster. If we made the culprits -- Democrats or Republicans -- have to stand on the floor of the Senate & talk endlessly about whatever springs to mind, wouldn't they be (ultimately) shamed? Or I am I being overly optimistic?

Posted by: bigfish2 | December 22, 2009 10:43 PM | Report abuse

riplant, you're a faster typist than I am ;-)

Posted by: bigfish2 | December 22, 2009 10:45 PM | Report abuse

Data from the Senate's website:

No of filibusters:

2003-2004 = 62

2007-2008 = 139

2009-2010 = 60 so far.

Posted by: twm1 | December 22, 2009 10:46 PM | Report abuse

The problem is there is no cost for using or threatening to use the filibuster. The way it is set up now, why not use it every chance you get?

The Senate needs to increase the price of using its biggest weapon. Any Senator who filibusters a bill should lose the right to vote on ANY legislation for the rest of that Congress. In addition, they actually have to get in the well and filibuster like Mr. Smith, not this fake stuff that they are doing now.

What do you think?

Posted by: hoos3014 | December 22, 2009 10:47 PM | Report abuse

Rather than slinging ad hominems back and forth, we might consider the problem that Dionne suggests exists not with the filibuster per se but with its misuse. To the extent that one agrees that it is a misuse of the filibuster to create a general legislative paralysis, then it seems the solution is not to do away with the filibuster but to limit its use to a limited number in any given session of Congress. The number could be fixed or a percentage. Another possibility would be to restrict the filibuster to certain types of legislative matters.For example, as important as a policy issue as health reform is, I think there is a valid argument for claiming that the filibuster might be more appropriate with respect to lifetime appointments to the judiciary than to legislation subject to future amendment.

The above are two possible ways of dealing with what it seems to me is the potential for misuse of the filibuster. There may be others. However we achieve it, the desirable goal seems to me the preservation of the legitimate value of the filibuster for the minority party while at the same time permitting the majority party to carry out in substantial measure the policies for which it was elected. This would seem to be in the interests of Democrats and Republicans alike.

Seriously, the ad hominems just get sadder and sadder.

Posted by: QuickBen | December 22, 2009 11:13 PM | Report abuse

Leave the fillibuster alone...you guys are going to need it once you go back to being the minority party.

Posted by: moebius22 | December 22, 2009 11:23 PM | Report abuse

sadder and sadder.

Posted by: QuickBen | December 22, 2009 11:26 PM | Report abuse

Who's being 'completely disingenuous'? I think it's fairandbalanced4. Dionne has made it obvious that if Republicans only filibustered the health bill, he'd be A-OK with that. Instead they're filibustering every bill a Democrat submits.

Conservatives are telling America, "If we can't run this country, no one can". They're putting partisan advantage above the good of the country and the will of the voters who put the Dems in charge of the government. It wasn't so long ago that Bush said about Democrats, "[I]f they have no ideas or policies except obstruction, they should step aside and let others lead." Time for no-solutions conservatives to take their own advice.

Posted by: jonmiller1 | December 22, 2009 11:53 PM | Report abuse

It is not ad hominen to point out EJ's hypocracy. The whole point of his post was to defend himself against the charge that he has been inconsistent for supporting the filibuster when the GOP was in control but opposing it now. EJ is not consistent on this issue. Re-making the healthcare system is at least as an important and long-term issue as appointing judges. The bottom line is that he doesn't like conservative judges but he likes liberal healthcare reform. He twists his logic into a pretzel to suggest anything else. Just watch, we will see EJ's same inconsistency on Obama's judicial nominees. When Obama tries to appoint liberal judges to re-make the judiciary just as Bush did with conservatives, let's see if EJ will support the GOP filibuster to prevent the president from appointing "ideologues to satisfy his political base." Of course EJ won't support the filibuster for that, because to EJ all liberals are just mainstream moderates. It just shows how out of touch he is with real Americans. That is what is sad.

Posted by: fairandbalanced4 | December 23, 2009 12:02 AM | Report abuse

The filibuster, intended to protect against truly heinous activity by a small majority, was an honorable idea 200 years ago... when we had statesmen representing the people of this country, leaders who recognized that their responsibility was to seek common legislative ground for the betterment of the people.

It has, sadly, now outlived its usefulness... because we no longer have such statesmen working on behalf of the people. Instead, we have tit-for-tat, scorched-earth partisan tactics, devised and carried out by party apparatchiks on both sides of the aisle, and we have professional politicians bought and paid for by moneyed and well-lobbied private interests.

In this climate, the filibuster (and/or its threat) has been used - by both parties, in differing situations and to different degrees - to obstruct all chance of meaningful legislation, and thus to produce and ensure total paralysis of government.

We the People are no longer being served. It is time for the filibuster to be repealed.

(And if the incumbent seat-holders don't start behaving properly, maybe for the entire Senate to be repealed.)

Posted by: nan_lynn | December 23, 2009 12:30 AM | Report abuse

fair and balanced4:

An ad hominem argument is an argument which links the validity of a argument to an irrelevant characteristic or belief of the person advocating it. Your posting and the postings of several others link the validity of Dionne's argument regarding the filibuster to his questionable motives (that is to say, his "hypocrisy"). Dionne's motives are irrelevant to his argument. To dispose of his argument by impugning Dionne's motives or character is ad hominem. It would not be an ad hominem if, for example, his argument was grounded in an appeal to his own character. "Accept what I say because I say it." It's also not an ad hominem if your only point is that Dionne is a hypocrite; however, if that's your only point we're simply discussing different topics.

The selection of Federal judges and the passing of legislation are different in a number of ways. One difference that makes a difference with respect to the use of the filibuster is that legislation once enacted can be subsequently amended, even repealed. Federal judges are for life. The relatively unconditional nature of judicial approvals when compared to legislative enactments arguably supports the requirement of a higher threshold of approval in cases of principled disagreement. There are other differences that I think make a difference, but that's a longer discussion.

I can't predict what Dionne will argue in the future regarding the use of the filibuster in the case of judicial appointments. I think that Dionne has made a not unreasonable argument regarding the misuse of the filibuster. Addressing this problem does not require the elimination of the filibuster. One can engage with these matters at the level of argument or at the level of personalities. The latter is a lot more fun but the former seems to be more useful.

Posted by: QuickBen | December 23, 2009 12:37 AM | Report abuse

Since EJ Dionne loves to wrap himself up in ideologies and scream for moderation from the opposing party while congratulating radical liberal policies in his own party, I'll give a factual, fairly consistent set of numbers from rasmussen polls: 55% oppose, 41% favor the health care plan.

Given this current public opinion, the minority party is starting to look like the hero of the American people by stalling this bill til representatives go home and get an earfull from constituents.

Posted by: axxionx12 | December 23, 2009 1:28 AM | Report abuse

Is there a course taught on Abnormal Public Administration as Universities offer courses on Abnormal Psychology ? Of course one would have to have completed Psychology 101 a prerequisite to studies of abnormal psychology I think. In other words, to explain the dysfunction of the Senate we would have to know how a functional Senate operates ?

I hate to talk about the patient in front of him but there are many aspects to dysfunctional systems explaining actions or inaction which may or may not have rational motive.

When McConnell seemed at his most vulnerable (check motives for vulnerability)he indicated that he would not be "blinking" so I gather McConnell believes this is a test of will power ? McCain indicated the other morning that his "has not yet begun to fight". So this is a fight is it, between Men ? On NPR today Senator Graham indicated that the current bill before the Senate is a joke and then launched into complaint about uneven burden of Federal taxation among states not receiving "special compensations" through the particular process.

I know what this is in very simple terms and I could use very straight forward terminology adapted from the study of Dysfunctional Family systems. But I am not going to do that because I am not getting paid to babysit the United States Senate. In fact, I was think this afternoon about putting a "Help Wanted Ad" in WAPO for a full time babysitter position for 40 Adult Children. Nuff said for now...

Posted by: truthhurts | December 23, 2009 1:52 AM | Report abuse

Its a misnomer to say that the filibuster is being misused. Its not even being used. All that's happening is that there is a vote on cloture to cut offdebate. If the vote fails, there is no further debate because the bill is then withdrawn or rescheduled. Indeed, if the majority leader's poll of the supporters doesn't have the support of 60 to cutoff debate, then the billis withdrawn.
And so it has come to pass that a majority of 60% is needed to pass a bill, and that is in violation of the constition.
The fillibuster is not mentioned in the contition Rather it comes about because the senaten can enact the rules under which operates. And so it can chage the rules to and restore simple majority rule as intended by the constition.

Posted by: bob_ip3 | December 23, 2009 2:13 AM | Report abuse

I shouuld add that what prevents the senate from changing the rules aboutt cloture and fillibuster are the indiviidual sentor's egos. While the constitution does give senators from small states an undemocratic powere to influence legislaton, the filibuster takes taht to en extreme giving an individual senaator veto power. Something that the Senate has been unwilling to give up.

Posted by: bob_ip3 | December 23, 2009 3:10 AM | Report abuse

As twm1 pointed out, the number of filibusters per year has DOUBLED since the Republicans moved into the minority in 2007. Look at http://www.senate.gov/pagelayout/reference/cloture_motions/clotureCounts.htm and see for yourself if you don't believe me.

This is a clear change in pattern, and calling that a change for the worse is not hypocrisy. Complaining that the Democrats are over using the filibuster, threatening to ban it because it is being abused so horribly, and then doubling the use of the filibuster when you are no longer in power? THAT is hypocrisy.

Posted by: jimwalters1 | December 23, 2009 5:59 AM | Report abuse

The senate needs to start requiring acutal filibusters, not just the threat. In war there was an attempt by Napoleon to use a "paper blockade." He declared a blockade and then expected other nations to abide by the blockade. The British said no deal. Get the ships out there and actually do it or it isn;t a blockade. If republicons want to obstruct and stop the business we elected all those Democrats to do then make them ACTUALLY do it. So that night after night we can see on tv republicon senators reading phone books and talking jibberish while the nation they worked so hard to destroy is waiting for solutions.

Posted by: John1263 | December 23, 2009 6:30 AM | Report abuse

the dems used the fillibuster more than the Republicans ever had...
dionne, I don't think you can go any lower...
but I'm sure you will...

Posted by: DwightCollins | December 23, 2009 6:30 AM | Report abuse

when the dems lose the senate, and they will...
and the dems start using the fillibuster...
will you cry out against them then...
or be a hypocrite...

Posted by: DwightCollins | December 23, 2009 6:32 AM | Report abuse

a small step back -- while agreeing that the Senate is acting in a dysfunctional way and also agreeing that the excessive use of the filibuster is one manifestation of that dysfunctionality, I am wondering how we, "the people," got to this place. Might it be that the Senate accurately reflects the mood of America? Pick up any article, column, blog, whatever, and read the posts. We seem unable or unwilling to talk with each other. Ad hominem attacks substitute for discourse. Our elected representatives may just be a mirror, reflecting who and what we have become.

Posted by: kipper72 | December 23, 2009 6:39 AM | Report abuse

Reading through the comments on E.J.'s piece, I wonder at people's short sightedness. For those who accuse him of decrying the use of the filibuster for partisan reasons, I would ask you...the next time the Democrats are out of power would you defend their right to bring the business of the Senate to a halt, confronting every proposal, every vote with a filibuster to stop the Republican's from passing anything?
Apparently you have no problem with the R's use of the filibuster as a means of neutering the last election. If this continues, I have to pray the Democrats will respond in kind when it's their turn as 'spoiler'. Not because it's good for the country but because apparently Republicans only respect one thing and it ain't good government.

Posted by: dogdiva | December 23, 2009 6:48 AM | Report abuse

For all the GOP crying about being shut out of the healthcare bill, this American remembers the Dubya tax cut being put into the budget process. I also remember Hatch no doing his duty of advise and consent withholding over 100 Bubba judicial slots from even having a vote, let alone cloture. How many of GOP bills were written by health care and energy lobbyists themselves behind closed doors? Gingrich budget done in secret, brought to the floor in one day, is not 8 months of committee work on healthcare with a debate publicly broadcast. The Senate should change the rules on cloture, not ending it but the abuse by limiting the call for 60 to 20 challenges a year. Dubya's executive completely disregarded the Dem senate objections of the likes of a Janice Rodgers Brown with cloture saved by the gang of 14. His father a great president, listened and changed his nominations.

Posted by: jameschirico | December 23, 2009 7:12 AM | Report abuse

Typical Liberal position; if a tactic (filibuster) or a tool (guns) is being misused, then let's attack that instead of the behavior. Why not attack the Dems for acquiescing to a threat? Dems should be wary of reforms for topical reasons. Remember a lot of the rules we have in the Senate today are the result of reforms in the aftermath of Watergate.

Posted by: ronjaboy | December 23, 2009 7:14 AM | Report abuse

hoos3014 wants there to be a penalty for a failed filibuster. He doesn't go far enough.

I agree, I'd LOVE to see the old "Mr Smith" filibusters instead of the "I'm gonna" we have now. This is like going to the bank and saying "I'm gonna rob it, so just give me the money" ~ and the bank filling up the bag.

So when the filibuster fails, give the majority the right to choose one of the losers, take him to the top of the Cap. dome, and give him a shove.

Seriously, what ever happened to debate? If the senators can do one thing well, it's TALK. If a senator (say, Lieberman) can't even convince ONE OF HIS COLLEAGUES that he's right, can't he admit he's wrong, drop the threat, and move on?

Dems also need to admit they don't play the game as well as reps.

Dem strategy: buy 60 Dem senators, one at a time, with pork and concessions until the final bill is weak tea and any of the cats they herded can still break loose and ruin the legislation.

Rep strategy: start with an idea proposed by an incompetent administration (you know who you are), march lockstep ~ now you have 51 or 52 votes. Buy 8 or 9 Dems and go to war or kill the economy or whatever other fool idea the boss has.

Conclusion: thinking is the enemy of efficiency.

Posted by: MAL9000 | December 23, 2009 7:40 AM | Report abuse

I am still laughing after reading this column. Either EJ is for filibuster or against it. To suggest that it is fine in certain circumstances is to suggest that democracy is fine when it suits a certain agenda.

Posted by: philly3 | December 23, 2009 7:48 AM | Report abuse

Maybe EJ would like to debate what the meaning of "is" is. What a joke, what a clown. Every time you write something, EJ, you make me laugh (cry) even harder than the time before. The filibuster is fine as long as it's used for your purposes, is that right? What are you, 5 years old? You're a joke, chief.....


Posted by: subframer | December 23, 2009 8:06 AM | Report abuse

Barack Obama: Your soul is an apalling dump heap overflowing
with the most disgraceful assortment of deplorable
rubbish imaginable,
Mangled up in tangled up knots!

Posted by: ignoranceisbliss | December 23, 2009 8:11 AM | Report abuse

Do actual filibusters occur? Aren't these just threats of filibusters that Congressional leadership routinely caves to?

I don't recall any actual filibusters shown in the media, no video of the them, no transcripts of what was said. And that's because I doubt any of them occur.

Posted by: roscoe911 | December 23, 2009 8:15 AM | Report abuse

DwightCollins wrote:

"the dems used the fillibuster more than the Republicans ever had..."

Wrong. I suggest you look at http://www.senate.gov/pagelayout/reference/cloture_motions/clotureCounts.htm.

The highest number of cloture votes (votes to end filibusters) ever was in the 111th Congress, when the Republicans were in the minority. It had almost 70% more cloture votes than the next highest. The current 112th Congress (Republican minority) is on track to meet or beat the 111th's record.

The last 3 years have had 206 cloture votes. That is more than the grand total for the preceding 6 years when the Republicans were complaining so bitterly about Democrats abusing the filibuster and were threatening to ban it.

Posted by: jimwalters1 | December 23, 2009 8:30 AM | Report abuse

Leave the fillibuster alone...you guys are going to need it once you go back to being the minority party.

Posted by: moebius22 | December 22, 2009 11:23 PM | Report abuse
---
The party of hypocrites will just go back to stating it is justified.

When you skip all the song and dance of the article, it comes down to just this.
He is saying its OK for democrats but not for republicans.

That will always be their position.

They call the repub's the party of no, I call the dem's the party of hypocrites.

it's OK for them(doesn't matter what it is) but it's not ok for anyone else.

Posted by: LiberalBasher | December 23, 2009 8:33 AM | Report abuse

Wow, I always thought Dionne was just a typical mealy-mouthed Liberal, but his twisty-turny defense of Democratic filibusters while slamming Republicans’ use of the tactic belongs at the front of the Liberal pantheon in the Political Hall of Shame. I like the way he says he’s right because he … well … he says so. Hypocrisy thy name is EJ Dionne!

I am also enamored by the accusation that it is solely Republican partisanship that s the cause of the Senate’s dysfunction. I would say that because the Democrats are so far in the majority, that it is up to them if they want to be bipartisan or not, not the Republicans. The GOP can only take what the Democrats choose to give them. The Dems only offer has been to state impudently, “We won; you lost, so take it or leave it.” With no room for compromise whatsoever, the Republicans have chosen, of course, to leave it. Would the Democrats have done any different if the roles were reversed? We will likely get the chance to test that theory after November 2010.

For all of the talk of how partisan George W. Bush was, he was able to get important legislation passed with significant bipartisan support – Medicare Part D, No Child Left Behind, and several war resolutions and their funding bills. He worked with Democrats to pass legislation they wanted, such as Sarbanes-Oxley. Even legislative failures, like immigration reform, were bipartisan efforts. Yet, the so-called “post-partisan president” can’t seem to do any better than the “Most Hated President in History?”

I also seem to remember the wailing and gnashing of teeth from the Left when the Republicans proposed the so-called “nuclear option” of foreswearing the filibuster for judicial nominations. The outcry was that the “rights of the minority” should not be so easily trampled on through the “tyranny of the majority.” Where is that outcry from the Left now, when the most tyrannical majority leadership in my memory has steamrolled any and all dissent, even from within its caucus (hello Joe Lieberman, say hey Bart Stupak). So please, spare us your righteous indignation. However, if you insist on the death of the filibuster, just remember, the shoe will be on the other foot, hopefully I short order. Be careful what you ask for, you just might get it.

Posted by: braunt | December 23, 2009 8:52 AM | Report abuse

At the rate this president and Democratic Congress are spending money, anything that slows down the process is a good thing.

Relax, Dionne, we'll be bankrupt soon enough.

Posted by: PS7900 | December 23, 2009 9:00 AM | Report abuse

All of the talk of Republican obstruction is a dishonest distraction from the truth, which is that the GOP was incapable of obstructing the Democrats. The Dems have had supermajorities in the House and Senate during the entire health care debate. They didn’t need any Republican support to pass any legislation they wanted, even a single-payer plan, if they so chose to do so.

No, it was Democratic obstructionism that has slowed down the train wreck that has been passed off as “health care reform” in Congress. It’s been Democratic opposition to key points at key moments that has led to this frantic gadarene rush on Christmas Eve. Without it, we would have seen “health care reform” legislation passed in August. In fact, it was the Democratic leadership’s decision to preclude any Republican input that led to this fiasco. Without Republican support, the Dems have had to resort to bribing and extorting their own people to get two monstrosities through their respective chambers.

If the Dems had only thrown the GOP a bone or two (i.e., tort reform, more market-based approaches), they probably would have received a few Republican votes and avoided the big public hit they are going to take if a health care bill passes. One Democratic Congressman has already jumped ship as a result of the Dems heavy-handedness in this debate and they are alienating their own moderates. How much more damage will they do to themselves in the reconciliation conference? I wonder if the Democratic Party can withstand its own success.

Posted by: braunt | December 23, 2009 9:32 AM | Report abuse

Sadder and sadder

Posted by: QuickBen | December 23, 2009 9:37 AM | Report abuse

The filibuster is a symptom of the problem, not a cause. "Deliberative body" my ___; well, you know how to fill in the blank. If only our Senators were deliberating instead of name-calling, obstructing, fund-raising, and pressing their lips to the posteriors of the special interests (of course the charge sticks regardless of which party you're talking about).

The U.S. Congress (both houses) has morphed into an incumbency factory. Maybe it's time to consider "Legislative Health Reform." Not sure if term limits are the answer, but I'll confess they're looking more and more attractive.

Posted by: post_reader_in_wv | December 23, 2009 9:42 AM | Report abuse

Through their partisan absolutism, Republicans have now ruined the filibuster. In order to govern, Senate Democrats have no choice but to abolish it.

Posted by: Yogibard | December 23, 2009 9:43 AM | Report abuse

Dionne's critics on the right simply have no arguments so they attack him with invective and sarcasm. They illustrate his point perfectly: the right is interested in shutting down debate (by filibuster and personal invective and sarcasm) rather than engaging in honest, rational disputation (oops--a word the right-wing may believe refers to a type of sexual perversion).

Posted by: douard1 | December 23, 2009 9:49 AM | Report abuse

By my lights, it seems that everything the Senate does now is pretty much along party lines. If that is and remains the case, I would suggest the Senate extend its Christmas break for about 8 months, and all votes can simply be recorded as 58-42, 59-41 or 60-40. Let's just save the expense and the theater, and let the Senate be what it has become - party-loyal and oppositional.

Posted by: Nugget31 | December 23, 2009 9:51 AM | Report abuse

There's 3 or 4 right wingers who apparently have severe cognitive disabilities, but they can't help but run their mouths.

Threats of filibusters DOUBLED when Repubs became the minority. This is a fact.

Dione is saying that limited use of a filibuster is acceptable....for either party. This is also a fact.

70% of proposed legislation is being met with proposed filibusters under the Republican minority. 70% is hardly limited use of a tactic. I would dare to say it's become routine strategy with that kind of number. Repubs threatened to remove filibuster rights when Dems used the tactic a fraction of the time.

I agree that it shouldn't be an option that is removed from the Senate, but if Reid had any sort of man sack he'd force the Repubs to get up and read the phone book until they dropped from exhaustion. Let the 24 hour news cycle broadcast that mess for the people to see. It would sure beat the balloon boy saga.

Or we can keep voting Repubs out of office until they're down to 5 or so members. Whichever comes first.....

Posted by: theobserver4 | December 23, 2009 9:58 AM | Report abuse

I think there is a legitimate difference between filibustering a judicial nomination and filibustering legislation. In the case of judicial nominees the Senate is being asked to confirm someone to a position he or she will occupy for life. Other than impeachment there is no way to remove a federal judge so creating a situation in which 60 votes are necessary for confirmation does not seem that extreme. Legislation, however, is not permanent - it can be amended or even revoked should circumstances, whether factual or political, change. This, it seems to me, makes the use of the filibuster less defensible.

Posted by: greenberg1 | December 23, 2009 10:15 AM | Report abuse

Mr. Dionne,

Thanks for writing about the filibuster, but your piece still doesn't answer my longstanding question: Given where we are now, why doesn't the majority simply let the minority have its filibuster?

Surely, it will only take one before this extra-constitutional creature of Senate rule-making is thoroughly discredited and its proponents lose their voices entirely (both literally and figuratively).

Posted by: Itzajob | December 23, 2009 10:50 AM | Report abuse

The current healthcare system is bankrupting the people, businesses, and the government, while leaving 30 million Americans uninsured. It is the most expensive in the world, and the least effective in the industrialized world.

The Republicans with their No. No! NO! votes are perfectly happy that America is being bankrupted by healthcare. They did nothing to fix it for 8 years under Bush.

Come 2010 vote every Republican out of office. No. No! NO! to Republicans!

Posted by: chucky-el | December 23, 2009 10:56 AM | Report abuse

For those of you accusing Republican filibustering as the cause of Senate dysfunction, please remember that the Democrats have the 60 votes necessary to make any Republican obstructionism moot. As much as there is dysfunction in the Senate, the Democrats have only themselves to blame. However, I have no love for the filibuster either, so I would love it if the Democrats eliminated it. In fact, I ask them to PLEASE do so!

Posted by: braunt | December 23, 2009 10:56 AM | Report abuse

It's asked why the majority does not merely let the minority filibuster away.
My understanding of the system is that Senators used to have a right of unlimited debate, which they could use to create a filibuster in the traditional sense, reading out the telephone directory and so on. But in the early seventies this was changed, so that the question cannot be put to a vote if even one Senator is in the chamber and says that (s)he is not content that it be put. So the question of reading out the phone book never arises: it's not possible to say 'Conduct the filibuster; do your worst'. On the other hand, this individual veto can be overcome if the famous sixty votes to close debate can be found. So the right of unlimited debate vanished and was replaced by the need for a supermajority. Like many important changes this was introduced without very much explanation to the public. But the underlying idea could be that the requirement for supermajorities would make both parties, or all parties, reasonable and ready to compromise. If so, it hasn't worked.
On the other hand, if you have a plain right to stop a proposal in its tracks and you don't like that proposal I can't see any real objection in principle to your using that right. The whole idea of rights is that you're entitled to use them.

Posted by: MHughes976 | December 23, 2009 11:30 AM | Report abuse

I believe the combination of two senators per state with the fact that the country has become split almost equally between two extreme positions on just about everything to do with social legislation, has created a senate which is essentially non-functional. Unless the rules of the senate are altered with respect to use of the filibuster or we begin to elect adults to the US senate, nothing is going to change for the better.

Posted by: rbe1 | December 23, 2009 11:33 AM | Report abuse

You hit on on the head, EJ. When the minority starts paying a price, only then will the fillibuster become less routine.

If the GOP obstructionism pissed independants off, we'll know in 2010. That is, if the Dems have half a brain and use it against them over and over and over and over....

It does matter and the only ones who think it doesn't is the 15% neocon/right wing Sarah Palin crowd. They live in their own little reality anyway.

Posted by: ScottChallenger | December 23, 2009 11:39 AM | Report abuse

Actually, as you pointed out in your 2003 article: "Under Senate rules, it takes 60 votes in the 100-member body to shut down a filibuster. That means that those who engage in the practice are insisting that an issue is so important it should take a supermajority to reach a result."

I don't see how the 2009 health care reform is any less important than the 2003 judicial nominations. Considering what the new program entails, the reform is important enough to push for a supermajority support.

Posted by: DCProgressive | December 23, 2009 11:47 AM | Report abuse

E.J. are you ignorant or just lieing for your own political reasons?

In 2004, 2005 as the Republicans held sway in The Senate, democrats filibustered everything Bush wanted including Supreme Court nominees - never done in the nations history until democrats did it!!!

Now you are whining about Republican filibusters? Maybe you should have supported the Republicans in 2004 when they thought about killing the filibusters all together!!!!!

Posted by: jjcrocket2 | December 23, 2009 11:48 AM | Report abuse

Notice that no one has floated the so-called nuclear option even though, as the facts show, the level of use is an order of magnitude more than when the Republicans got all apoplectic back during their control of the chamber during W's time. Back then, the Gang of 14, consisting of both Rep and Dem members, stood up to force reasonabiltity back into the mix. Where is that sense of civility now? The answer is that the hypocritical Republicans waterboarded it to death. Should the tables be turned, you can BANK on the fact that the Republicans won't hesitate to blow up the rule. The Republicans are interested in only one think - being in power. Governing is not even in their frontal lobe, as the W era so thoroughly demonstrates.

Posted by: lloydamy | December 23, 2009 11:49 AM | Report abuse

Recall the "nuclear option" anyone?

If it's a problem, just get rid of the filibuster option - it's just a courtesy anyway and not an actual rule.

Posted by: Heerman532 | December 23, 2009 11:57 AM | Report abuse

Filibusters are only a useful tool when the public supports the purpose of the filibuster.

In this case the public hates the healthcare bill.

Hence Republicans can filibuster as much as they want without fear of voter retribution.

If the Dems had a bill with a lot of popular support, the filibuster would have died long ago.

Posted by: jfv123 | December 23, 2009 12:17 PM | Report abuse

As has been mentioned, the filibuster is not a rule, but an agreement on how debate should occur, and one which has been modified over time. Perhaps another modification is in order, so that the business of the Senate can go forward, and the filibuster cannot simply be used as a vehicle to obstruct the regular business of governance. The regular rule is not a supermajority in order to conduct business, but the "majority-plus-one." There does need to be, however, protection of the minority, and some vehicle for them to affect legislation. Perhaps they need rules regarding filibustering, limiting it to major pieces of legislation, etc., or, in the event of a planned filibuster, having an alternative that moves the bill into a bi-partisan caucus. Such alternatives should apply a "carrot and stick" approach, encouraging the disuse of filibusters. There have to be better alternatives than simply shutting down the government.

Posted by: garoth | December 23, 2009 12:42 PM | Report abuse

The filibuster is a part of the Senate. It'll always be there. But for a party that whined about the Democrats doing it for the last eight years, the GOP is doing it an awful lot. Not that I ever really felt they weren't hypocrites or anything.

Posted by: ravensfan20008 | December 23, 2009 12:42 PM | Report abuse

Keeping the Congress close to equality in numbers between Dems and Reps has been the ultimate, even if unconscious, goal of the collective voting citizenry. That way either very good legislation gets passed with bipartisan support or marginal legislation gets appropriate attention with compromise to get passed or not. So, now with the growing intransigence of the Reps and their losses in popularity, the filibuster and 2/3rds majority becomes the normal level of play in order to get the best possible legislation thru. If ever Congress gets so lopsided that the majority has it's way, then I'll be worried.

Posted by: schaeffz | December 23, 2009 12:43 PM | Report abuse

There is nothing in the Constitution that justifies or warrants the filibuster.

There is no law that justifies or warrants the filibuster.

It is only a Senate rule. And one that should be abandoned.

In America, it is the simple majority that is supposed to rule. (Except, for example, in cases of impeachment -- which are Constitutionally provided for.)

Posted by: WhatHeSaid | December 23, 2009 1:28 PM | Report abuse

With now only a declining 17% support of the GOP is it about to disapear?

Is the filibuster a last desperate attempt to be relevant?

With most conservatives driven away by the extremist America hating Limbaugh sycophants and fiscal Conservatives unable to pass the Palin Purity Test, is the GOP even a main stream party anymore?

How long will the GOP last?

Which party will replace the GOP as the voice of the right?

Posted by: walker1 | December 23, 2009 1:31 PM | Report abuse

A filabuster makes complete and total sense when the purpose is to delay a rushed and shoddy bill from likely becoming a permanent entitlement.

Imagine if you will, we could step into a time machine and go back to the times when Social Security, Medicare and Medicaid were being passed.

If you could tell those who argued strongly for the Social Security INSURANCE program then that it would become an unsustainable entitlement based upon a ponzi scheme in which a more numerous workforce pays a small retirement force?

What about Medicaid and Medicare? Would we not have been able to address systematic flaws were we to know what we do now?

Now clearly time trave is not possible, nor do we have infinite time to debate bills, but when you are talking about a brand new permanent entitlement, do you not think it wise that this thing should be aired out for several years of careful consideration to come up with a plan that works in the long run?

Do you really think that bill on the hill right now is a careful, wise, susustainable program we want to see become part of the bedrock of our runaway entitlement culture? Why is there such an enormous rush to push this out before Christmas? Why can we not work on it for another session of Congress and get it right?

I would maintain they are rushing this plan for a political accomplishment for Obama, rather than considering its value to the taxpayers of this nation. I would maintain they are bribing Senators in such an outrageous fashion because they see what a horrible bill this is, and want to have something concrete to show for their vote on it when the plan goes all to pot.

No, Mr. Dionne, delay and time to scrutinize this 2700 page beast is entirely appropriate. They could have broken this bill up into 50 page segments and moved it out a bit at a time, but no, they had to come up with something that is so enormous most who vote on it will never read it.

Did you know the socialist from Vermont (no, not Dean, the other socialist) was forced to have his 800 page amendment to put the public option in read, and they estimated it was going to take them 17 hours to read that were you to read it nonstop. So figure 2700pages would take something like 51 hours solid to go through...think about that some. This is the size of the corruption in congress.

Personally I would like to see every single large bill die to filabuster until they start pruning out the pork and dealing with clean bills of managable size.

Posted by: Wiggan | December 23, 2009 2:19 PM | Report abuse

It's doubtful that the Republican Party will disappear. Historically, this question has been floated several times in my lifetime when they have seemed to be so far out of the loop that they seemed relegated to the ash heap (or some kind of heap!). What happens afterward is that they eventually rebrand themselves, and come back - which is the way parties are supposed to work. Right now, there is a healthy debate among Republicans concerning who they are and what they represent. Some, of course, will desire to circle the wagons and cast our any who are not "oure" enough. Eventually, however, the party will realize that is not a winning strategy - they will be gathering a smaller and smaller set of true "loyalists," whose primary interest is in orthodoxy, not in winning races. Ultimately a true "loyal opposition" that actually has some positive ideas will emerge with a true alternative vision.

Posted by: garoth | December 23, 2009 2:30 PM | Report abuse

The abuse of the filibuster is symptomatic of much in our society:

CEOs used to make 20-30 times what their average employees made. Now it's 300-400 times.

Lobbying used to mean asking for five minutes of a senator's time to explain a position. Now, it's a multi-million dollar racket of seduction and threats.

Members of Congress used to spend most of their time legislating and meeting with constituents. Now, most of their time is spent fund-raising.

SUVs, Hummers, McMansions, Super Sized Meals, maxed out credit cards...we're now paying for a culture of excess.

And for those whining about EJ's supposed hypocrisy? GWB had 27 judicial appointments confirmed in his first year in office. BHO? 11.

During GWB's eight years in office, 325 of his judicial appointees were confirmed. Hardly obstructionist by ANYONE's measure. Compare that with the endless holds and other BS being perpetrated by the GOP in the Judiciary Committee.

The Republicans have decided that the only way back to power is to obstruct and delay anything and everything at all costs.

Who knows? Maybe it'll work.

Posted by: Bondosan | December 23, 2009 2:31 PM | Report abuse

Aprogressiveindependent said: "His position is Democrats are justified in using a filibuster against a Republican agenda and Republicans are not justified in using a filibuster against a Democratic agenda. Very simple, really."

Wow, great response. Way to catch the point of what this column says. You've really proven that you can follow the most nuanced logic. Your obvious mastery and understanding of the subtleties of fine distinction should leave all dumbfounded by your superior intellect. And the way you've cleverly disguised it as an irrelevant, meaningless comment is just genius. Thanks for your contribution to the public discourse on this important issue.

Posted by: tomguy1 | December 23, 2009 2:42 PM | Report abuse

What is happening now is just shameful!

I can not believe we will have to go to a 'bi-partisan' commission to solve the Budget Crisis!

This is nuts!

SLOW DOWN JAN 2009
SLOW DOWN FEB 2009
SLOW DOWN MAR 2009
SLOW DOWN APR 2009
SLOW DOWN MAY 2009
SLOW DOWN JUN 2009
SLOW DOWN JUL 2009
SLOW DOWN AUG 2009
SLOW DOWN SEP 2009
SLOW DOWN OCT 2009
SLOW DOWN NOV 2009
SLOW DOWN DEC 2009

Wonder why we can’t compete globally.

Wonder why JAPAN offers the World’s fastest broadband and we do not?

The New GLOBAL Economic Power-

BRIC: BRAZIL-RUSSIA-INDIA-CHINA

Missing an 'A'- America!

But Americans are too stupid!

We are so far behind- yet still hear the DUMB DOWN from the GOP-

They are in one GEAR- REVERSE!

BRIC has no REVERSE GEAR!

ONE MORE TIME FOR THE DUMB DOWN-

BRAZIL
RUSSIA
INDIA
CHINA

GOP have a problem with President Barack Obama - When he "burst into a meeting of the Chinese, Indian and Brazilian leaders, according to senior administration officials. Mr. Obama said he did not want them negotiating in secret."

LOOKS LIKE THAT IS COUNTRY FIRST!

BRIC- missing an 'A' AMERICA!

Too bad the GOP cannot figure that out!

So - IN 2010- this is what we can look for:

SLOW DOWN JAN 2010
SLOW DOWN FEB 2010
SLOW DOWN MAR 2010
SLOW DOWN APR 2010
SLOW DOWN MAY 2010
SLOW DOWN JUN 2010
SLOW DOWN JUL 2010
SLOW DOWN AUG 2010
SLOW DOWN SEP 2010
SLOW DOWN OCT 2010
SLOW DOWN NOV 2010
SLOW DOWN DEC 2010

Posted by: sasha2008 | December 23, 2009 2:43 PM | Report abuse

How many of you think that if the bill were passed on January 1, 2010 you would see anything diffent?

Well guess what. You won't. This bill gives no benefits til 2014. Yet you are going to pay in 2010, 2011, 2012, and 2013 for it even though you see nothing from it.

Is this the kind of thing you really want to rush through? I think not. Congress can do better. You should demand better from Congress. The problem is not with the sensible people who oppose this beast, but instead with those who blindly push for its passage.

Please do us all a favor and educate yourself on the bill before you advocate it.

Posted by: Wiggan | December 23, 2009 2:49 PM | Report abuse

Wiggan?

What exactly are you talking about?

Yes, many provisions won't kick in until later, but some will take effect right away.

And what is this about paying in 2010, etc.?

Posted by: Bondosan | December 23, 2009 3:18 PM | Report abuse

Look closely at the bill and see that the main benefits do not occur until 2014. Until that time the taxation and funding schemes that drive it operate. So you have delayed benefits in this bill. It is all a financial trick to try and make it look like it costs less than it will.

Once you get 10, 15 years out and that 4 year pre-pay fraction becomes less significant, the true cost of the program will be realized.

They did this deliberately to mask the cost of the program. They want to be able to say they passed something that WILL do X, Y, Z, and they know most people will not look at the fine print to see exactly when they will get those benefits.

Your congress is assuming you are too stupid to notice, and you will clamor for this bill anyway. This is why they are rushing...the longer this bill sits under the microscope, the more the abuses emerge.

It is a sad day when Congress would rather bribe and ram through a garbage bill than give us a clean bill that can withstand the light of day. It made even sadder when some blindly support this bill, as it rewards this kind of corruption in congress.

Posted by: Wiggan | December 23, 2009 3:32 PM | Report abuse

Wiggan:

"Look closely at the bill..."

Really? You've done that?

The majority of the benefits are paid for by the recipients themselves (mandated premiums). There will some government subsidies for the poor, but in my opinion, not enough.

Republicans like yourself have been saying "wait, stop, tear it up, start over" before a single piece of legislation was either written or passed by committee.

Your goal is transparent: Stop Obama.

Your earlier posts are even more laughable: Go back in time and stop Social Security, stop Medicare. Let old people get sick and die in poverty, just like they did in the good old days before FDR.

Goodbye, Wiggan. You're a disgrace to the United States of America.

Posted by: Bondosan | December 23, 2009 4:14 PM | Report abuse

It seems to me that generally the filibuster hurts Democrats more than Republicans, simply because the GOP probably has a larger constituency that is happy seeing Congress accomplish nothing, whereas Democrats want an active legislature. And I don't mean now -- with Dems in majority -- I mean generally.

That, and that both parties have made the filibuster the rule, rather than the exception.

That's why I think Democrats will (and should) move toward modifying the filibuster in some way.

Posted by: 13joe85 | December 23, 2009 4:22 PM | Report abuse

The filibuster needs to go, or be severely restricted in its usage. 51 votes is a majority in the Senate and should be enough to get any legislation passed.

Posted by: steve-o5 | December 23, 2009 4:22 PM | Report abuse

There is no doubt that the Senate is dysfunctional. What will it take to change their arcane rules? I truly don't know. Is it possible for a class action suit to be filed that challenges the use of the filibuster as being unconstitutional? The constitution does not provide for filibuster. It appears that the authors of the constitution intended for legislation to be passed by a simple majority in accordance with the will of the people's vote in open elections. I am well aware that this cuts both ways but we really need something that changes Senate rules.

Posted by: cdierd1944 | December 23, 2009 4:25 PM | Report abuse

Look, it shouldn't take new rules to correct the Senate's disfunction. All it takes is getting about 10 Senators to agree to abandon the tactic, or at least use it sparingly. It might be hard to negotiate the specifics, but that's what they earn the big money to do. Red and blue state senators may not agree, but those senators within the swing states could demonstrate their bipartisanship by signing on to such a group. Anybody willing to take up the cause?

Posted by: Jim1968 | December 23, 2009 4:32 PM | Report abuse

"Look at those numbers again: The filibuster used to be unusual – 8 percent in the 1960s. Now it’s routine – 70 percent in recent years. The filibuster has become a standard part of the way the Senate does business. That is wrong, and it creates dysfunction."

Notice that the percentage under Democrats in recent years is not split out. This is because it would show that Democrats filibustered as much during the Bush as the GOP does now. Dione and Krugman are so dishonest.

Posted by: bobmoses | December 23, 2009 4:44 PM | Report abuse

I think it should be noted that the Democrats used the filibuster on judges that are lifetime appointments; while the Republicans are using the filibuster on regular legislation. That legislation could be repealed in the future if the party in power changes. That's a big difference.

As some former president said "Elections have consequences." Drop the filibusters and let the majority rule as the founders intended.

Posted by: jasperanselm | December 23, 2009 4:55 PM | Report abuse

I like how E.J. uses the number of filibusters in the 1960's to the number today. How about using the most recent past like 2002 to 2007 then the Republicans controlled the Senate. The Democrats filibustered everything including judicial appointments, which was almost unheard of at the time. Basically if liberal Democrats filibuster its perfectly fine but if Republicans filibuster the sky is falling and the Senate rules must be changed. I don't recall E.J. coming out in favor of the nuclear option when the Republicans were in charge.

Posted by: RobT1 | December 23, 2009 6:04 PM | Report abuse

Being a progressive, I liked filibusters during Bush era. But as you so rightfully pointed out that now it is used 70% of the times which has become ridiculously insane. Bush era filibusters were used ONLY for judicial nominees, but now 'the party of no' is using for even DEFENSE SPENDING!! I mean, it has become a lame duck process due to it's use. Let's bring the votes down to 55 and also limit Senators terms to 4 years.

Posted by: GuyFromLa | December 23, 2009 6:37 PM | Report abuse

I think Mr. Dionne is confused, as is the researcher. The Republicans threaten to filibuster 70% of the time, and the Democrats have made sure they had 60 votes. But there haven't actually been filibusters on 70% of the legislation introduced. The stiumulus bill was not filibustered and neither was the Defense appropriations bill.

Please will someone at the Washington Post read these editorials for at least being somewhat accurate.

Posted by: DCDave11 | December 23, 2009 6:44 PM | Report abuse

We're with you on this one E.J. "The new obstruction," "The Party of No," whatever one calls the latest Republican tactics, the Senate is becoming dysfunctional and we are all going to pay the price.

Posted by: gposner | December 23, 2009 6:46 PM | Report abuse

I still fail to see any different between the dems and republicans actions here. If you want to go back to the 1970 rules of filibustering I'm ALL with you, believe me, but this just sounds like partisan post-hoc rationalizing.

Posted by: ihatelogins | December 23, 2009 7:10 PM | Report abuse

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