« Blatche! | Main | Nuance! » The Debate06 Feb 2007 10:08 am I know there was a lot of blogospheric skepticism about the merits of passing a non-binding resolution against the surge, but people should consider that the GOP sure does seem determined to stop such a resolution from passing. Maybe the Democratic leadership knows what it's doing? UPDATE: Aha! Looks like E.J. Dionne got here firstt. Comments (48)
I love Harry Reid enormously, but dude had a chance to force Bill Frist's hand during the "nuclear option" debate and to destroy the filibuster forever. He didn't take that chance in order to win a short-term PR victory, and I think that will go down as a historic mistake. 
Petey, the elimination of the filibuster for legislation was never on the table.
"Petey, the elimination of the filibuster for legislation was never on the table." Once the principle that a simple majority could trump cloture rules on judges was established, simple majority trumping cloture rules on legislation would have certainly followed. I think this was understood by pretty much everyone in the "nuclear option" debate, which is why there was a constituency of centrists looking for a way to avoid a vote. (Since 60 vote cloture greatly empowers the Senators between the 40-yard lines...)
I think the first sentence in Dionne's essay: "When political opponents tell you that to prove your seriousness you need to pursue a strategy they know is doomed to failure, shouldn't you be skeptical of their advice?" should tattooed inside the eyelids of every Democrat.
I don't know about that. Why go with Warner's toothless formulation that some Democrats feel compelled to vote against if: (1) a better resolution could garner a simple majority; (2) Warners isn't filibuster proof? Makes no sense to me.
That's simply not true at all. The purported justification for the nuclear option was that filibustering judges was supposedly contrary to the "norms and traditions of the Senate." While not true in my book, this at least provided a colorable explanation. Not a single person ever suggested that the same "logic" could be applied to filibusters of legislation, nor would a Republican majority ever vote unanimously to do away with the legislative filibuster considering it's generally regarded as a conservative weapon. For historical reference, Sen. Harkin made a meritorious proposal to weaken the filibuster slightly at the start of the 1995 session. Even though Republicans were in the majority, and would have benefitted from any weakening of the legislative filibuster, not one single Republican voted in favor of Harkin's proposal. The foremost blogospheric authority on the nuclear option is Kagro X of The Next Hurrah, and I commend his many-part series on the topic to anyone who really cares about parliamentary minutiae. Along the way you'll learn that pretty much NO ONE believed that if the Republicans triggered the nuclear option, they would be getting rid of the legislative filibuster soon after.
"Along the way you'll learn that pretty much NO ONE believed that if the Republicans triggered the nuclear option, they would be getting rid of the legislative filibuster soon after." That's not what I'm saying. The destruction of the filibuster on legislation would not have IMMEDIATELY followed a successful nuclear option. It would have followed at some point in the future when the majority had a popular proposal that was being denied cloture - precisely something like yesterday's Iraq resolution. The precedent the nuclear option would have set is that all Senate rules are subject to being overruled by a simple majority vote. I'm reasonably sure Kagro X would agree with what I'm saying, as would most folks who were down in the weeds of the nuclear option debate.
So the argument as I read it is Democrats shouldn't have pushed for a real anti-surge bill because the Republicans thought that opposing such a bill would be politically advantageous to Republicans? I thought we just had an election that demonstrated how poorly Republicans grasp the politics of the Iraq war. The Democrats should have tried to pass an anti-surge bill with teeth because such a bill is wildly popular in the country and more importantly is the right policy to pursue. Give Republicans every opportunity to delude themselves into thinking being pro-surge will be a political boon in 2008 then sit back and enjoy the filibuster proof majority and White House Dems win as a result.
The precedent the nuclear option would have set is that all Senate rules are subject to being overruled by a simple majority vote. Yes, and that's why it's called the nuclear option, because it would effectively destroy everything. But you presented it as if Harry Reid had the choice to get rid of the filibuster forever, which he didn't. To get rid of the legislative filibuster, the Democrats would have not only had to achieve a majority, but persuade that majority to vote unanimously in favor of a pure power grab. Despite the fact that the Republicans would have "set the precedent," it's far from clear that every Democrat would have gone along with this, or that the public would have deemed it fair game since the GOP did it first. So it's flat wrong to casually suggest that Harry Reid had the chance to eliminate the legislative filibuster.
Hey, where are all the progressive Hagel-humpers this morning? Talked tough about a strongly-worded anti-surge resolution, switched to backing the "stay the course" Warner resolution, then helped filibuster either of them proceeding to an up-or-down vote, because the process didn't stack the deck for Gregg's "Article I Doesn't Exist" resolution? Wow, I take back all those mean things I've said about Senator Hagel talking the talk, but never walking the walk. He really displayed the courage of his convictions this time.
remind me again, didn't warner essentially vote against (i.e. voted against bringing it to a vote) the compromise resolution he sponsored? that's either evidence of some serious work by the leadership to bring everyone in line with the president, or a very calculated move by warner. either way, not particularly pleasing.
The GOP would not be afriad of the Democrats passing such a resolution 50-49; they could dredge up the usual bucket of smear-mud (labeled "weak and cowardly") for the election of 2008. But they are terrified of having too many of their own (and even one would be too many) vote for such a resolution, dividing their party and turning George Bush from lame duck into a duck far gone into rigor mortis, incapable of holding even his own.
"But you presented it as if Harry Reid had the choice to get rid of the filibuster forever, which he didn't." Unless you want to phrase things for literalness over meaning, sure he did. If the nuclear option had proceeded, the chances of super-majority cloture being violated on regular legislation at some point in the next ten years would have been overwhelmingly likely. With the nuclear option having been averted, the the chances of super-majority cloture being violated on regular legislation at some point in the next ten years are close to zero.
You've moved the goalposts into the next county, Petey. You started off with the claim that Harry Reid had a chance to destroy the filibuster forever during the nuclear option fight. Now we're onto the claim that if we had given away the judicial filibuster, sometime in the next ten years the legislative filibuster would have gone away as well. I still disagree with your new formulation, but the fact is, you're playing a game of crystal ball-gazing and your prediction is just one of many scenarios that might take form. Harry Reid probably knows better than you how many of his Democratic colleagues would be willing to pull the trigger on the legislative filibuster somewhere down the road, if the Republicans were to "set the precedent" first, so you should be a little more skeptical of your own judgment in this regard.
The problem appears to be that Reid and the Senate Dem leaders saw they were headed into a trap -- there weren't 60 votes for anything except Gregg's resolution against cutting off any funds. So we were going to have a situation where everything got blocked except for this one resolution. That would have allowed the White House and other dead-enders to claim a victory on the Senate floor that they can't currently buy anywhere else. Yesterday's outcome amounted to damage control on Reid's part. It's not great to have to try to spin a procedural wrangle as a vote of principle, and try to hold Bush-war-supporters to account for that. But it was the best outcome available under the circumstances. It's too bad that Congress couldn't speak out, now, but the fact that there wasn't really a responsible advisory role to play at this point actually seems to have muddied the waters. We shouldn't worry too much. The whole issue will come back again, within a few months -- after we've been through the whole propaganda cycle with the "surge," and people are back to noticing the lack of good results. Before long it should be possible to set up some debates with indisputably meaningful consequences -- as Matt has been saying -- and peel more votes away from the likes of McConnell and Lieberman.
"You started off with the claim that Harry Reid had a chance to destroy the filibuster forever during the nuclear option fight." That's exactly where I still am. And, as previously stated, I think you'd find most folks who were down in the weeds of the nuclear option debate sharing my opinion.
Maybe the Democratic leadership knows what it's doing?Maybe. It depends entirely on how they follow up. If they keep pushing, well, then, good. If they decide that the resolution was it, and they don't have to do anything else, then they still might know what they're doing, but the people getting played are the anti-war people. m, or they may still just be inept
I don't agree with Petey often, but I think these points are sound: 1. Reid should have allowed the destruction of the nomination filibuster, since filibusters generally would almost certainly have followed. Counter-majoritarian measures already abound in the Constitution itself; there was no reason we needed to hold on to one required solely by the self-imposed rules of the Senate, when the other side was offering/threatening to get rid of it. 2. That aside, Reid has been doing a good job working the parliamentary rules. He's done an excellent job of letting the GOP senators make their party look bad.
A nit, though. Petey says: The precedent the nuclear option would have set is that all Senate rules are subject to being overruled by a simple majority vote. The rules would have been subject to being overruled by a simple majority with the president of the Senate (the VPOTUS) being in the majority's party. The 'nuclear option' depended on referring the rule change to Dick Cheney, who certainly would have found some specious logic to block cloture on a Democratic issue.
"The rules would have been subject to being overruled by a simple majority with the president of the Senate (the VPOTUS) being in the majority's party." While you may be entirely correct about this, I'm not expert enough in parliamentary procedure to know for sure. But my initial thought is that the rule of the chair doesn't really matter, since whichever way the chair rules, it's up to a majority vote to agree or disagree with the chair's ruling. But, again, I'm not anywhere near 100% sure of my conclusion here...
To be fair, DJ, the nuclear option only requires a parliamentary ruling by the chair of the Senate. The chair doesn't have to be the VP; it can be any member of the majority party, although if you have the VP available to deploy in this role you can squeeze out an extra vote.
To be fair, DJ, the nuclear option only requires a parliamentary ruling by the chair of the Senate. Pretty sure this is wrong. The presiding officer is the President of the Senate, a title bestowed upon the VP by the Constitution. There is no "chairmanship" that Harry Reid has by virtue of being Majority Leader that would allow him to push through a rule change.
I take it back. The presiding officer could also be the president pro tempore, typically the majority leader. But if the VP wanted to preside over the proposed rule change, s/he could, so the majority leader/president pro tem would be deprived of the opportunity to shove the rule change down the minority's throat.
The filibuster seems like a counter-counter-majoritarian measure--it empowers the minority of the counter-majorities (which may actually represent the popular majority) to slam on the brakes. The electoral college, the senate, the judiciary--none of those is majoritarian, therefore weakening and/or moderating them is conceivably good for the majority.
The presiding officer could also be the president pro tempore, typically the majority leader. Actually, the president pro tem is the most senior Senator of the majority party. Robert Byrd, now.
Oh, yeah. Seniority. Duh. Still more coffee needed.
"if the VP wanted to preside over the proposed rule change, s/he could" But again, if my understanding here is correct, (which I'm not 100% sure of), whichever way the VP rules is largely irrelevant, since a majority vote is necessary to confirm or deny that ruling. The VP's role in such a Senate proceeding is analogous to the Chief Justice's role during an impeachment trial - the Chief Justice can rule any way he wants on any issue, but it's always a ruling without power since a majority vote has the final say on that issue. In other words, a VP's ruling is advisory only.
But again, if my understanding here is correct, (which I'm not 100% sure of), whichever way the VP rules is largely irrelevant, since a majority vote is necessary to confirm or deny that ruling. What you're missing is that the "majority vote" you envision can itself be filibustered, thus putting us back at square one. How it works is like this: a point of order is made; the chair rules the filibuster out of order; a motion to appeal that ruling is made; and the anti-filibuster side moves to table the appeal. Unlike virtually every other type of vote you might envision, this motion to table is not subject to filibuster, thus it can prevail with a simple majority. Bingo, motion is tabled, the chair's ruling stands, the filibuster is out of order. This scenario can never play out unless the chair rules the "correct" way in the first instance.
"This scenario can never play out unless the chair rules the "correct" way in the first instance." But if my understanding is correct, the chair's ruling is entirely advisory. Whichever way the chair rules, it still is ultimately the decision of an un-filibusterable majority vote of the Senate.
I just explained why your understanding is incorrect. If the chair rules that the filibuster is permissible, and the majority appeals that decision, the vote on the appeal is subject to a filibuster.
"If the chair rules that the filibuster is permissible, and the majority appeals that decision, the vote on the appeal is subject to a filibuster." I don't believe this to be correct, but again, I am operating in an area of minutiae here where I don't have anywhere near 100% confidence in my understanding...
Doing away with the filibuster for judges does away with the filibuster period. There are no degrees of virginity. I wanted the Senate to make the Republicans do away with that damb filibuster rule sooooo bad.
I don't believe this to be correct, but again, I am operating in an area of minutiae here where I don't have anywhere near 100% confidence in my understanding... The answer is in Standing Rule XX of the Senate. Parenthetically, I'll note how frustrating it is to debate with someone who keeps repeating "I still think you're wrong, although I can't back it up." Doing away with the filibuster for judges does away with the filibuster period. There are no degrees of virginity. This is nothing more than wishful thinking. One might ultimately set the precedent for the other, or it might not, but even if the Republicans had triggered the nuclear option there's no dispute that the legislative filibuster would have remained in place at least for the duration of the Republican majority. There are no degrees of virginity, 'tis true, but most things are not virginity.
"Parenthetically, I'll note how frustrating it is to debate with someone who keeps repeating "I still think you're wrong, although I can't back it up." It just means that I'm acknowledging that I don't have the intimate knowledge of the minutiae involved to definitely state that you are wrong, despite the fact that I do indeed think you are wrong. In other words, I'm basically conceding the point unless someone else with the requisite knowledge pops in to comment. Call it a victory and be happy, not frustrated. Compare and contrast to your assertions about the consequences of the nuclear option on the legislative filibuster, where I'm quite comfortable definitely stating that you are as wrong as the day is long.
I am sick and tired of loonies on the left like Arianna pulling their hair and demanding "Hillary, Biden, Dodd........STOP THIS WAR NOW!!!!!!!!!!".
I think Dems are doing the right thing so far. They are pursuing what is realistically possible. First, influence public opinion, turn the public against the war, even more so than they are now. This in turn will put pressure on the GOP senators to turn against the war. They in turn will put pressure on Bush to bring this war to and end. This is the only realistic scenario.
"I wanted the Senate to make the Republicans do away with that damb filibuster rule" Agree completely. The gang of 14 screwed Dems. They ended up with the worst of all worlds. The lunatic right judges got confirmed. Filibuster survived for the GOP to use. Ending the filibuster for judges would have ended all filibusters. To end the filibuster the GOP was going to resort to the "nuclear option" meaning throwing away existing senate rules. Which in turn would have set a precedent for the Dems to throw away the senate rules they themselves don't like.
"but even if the Republicans had triggered the nuclear option there's no dispute that the legislative filibuster would have remained in place at least for the duration of the Republican majority." This makes no sense. If the GOP had used the "nuclear option" it would have meant senate rules no longer mattered. Any party with 51 votes could do any damn thing they wanted.
Any party with 51 votes could do any damn thing they wanted. And only the Republicans had 51 votes. You quoted the part of my post where I said "at least for the duration of the Republican majority," but did you read it?
Doing away with the filibuster for judges does away with the filibuster period. There are no degrees of virginity. Well, here's the thing. If there's a proposed rule change, the presiding officer is constrained by precedent unless citing to the Constitution in his/her ruling. The idea in the judicial filibuster nomination was that Cheney would cite the "shall" language as insisting on an upperdown vote. That language only extends to nominations, and not legislation generally. So in future, when Dems tried to torpedo the filibuster generally, the GOP would argue that the precedent only applied to that narrow case, and that the Dems would have to look elsewhere in the Constitution for their rule change.
"So in future, when Dems tried to torpedo the filibuster generally, the GOP would argue that the precedent only applied to that narrow case, and that the Dems would have to look elsewhere in the Constitution for their rule change." No doubt. But with a test case that has high popular support, there is little doubt the Dems would have been able to find as strained an interpretation as the GOP had with the nuclear option. Once you have the precedent that a majority can overrule a standing rule that says you need a super-majority, you "shall" have the precedent that a majority can overrule any standing rule. Justifications are the easy part. The whole edifice of the Senate Rules is predicated on a majority supporting the existence of the Senate Rules. Had the nuclear option gone through, the Senate would have inexorably shifted to the rule structure of the House.
The Senate makes its own rules. Unsupervised. If the GOP wanted to throw out the filibuster with strong arm tactics, there'd be nothing preventing the Dems from doing the same when the time came. The allusion to "shall" was weak and contrived. When the time came, they could contrive something else. Real Politik.
But with a test case that has high popular support, there is little doubt the Dems would have been able to find as strained an interpretation as the GOP had with the nuclear option. Which is why I agree that once the door was open, legislative filibusters would not be long for the world. But from a legal/parliamentary standpoint, the progression is hardly as inevitable as Jeffrey Davis posits. It would inevitably be a politically charged process, but eventually Dems would find a popular enough cause (like, say, expressing a lack of confidence in the president's war plans), and the filibuster would go the way of the dodo.
"That language only extends to nominations, and not legislation generally. So in future, when Dems tried to torpedo the filibuster generally, the GOP would argue that the precedent only applied to that narrow case," The GOP could have argued anything it wanted. It would have been laughable. The bottom line is "nuclear option" would have amounted to trashing the senate rule book. You have 51 votes? You make whatever rules you want. You pass whatever you want.
You guys are making an awful lot of assumptions regarding what would have happened if the nuclear option had gone through. Among these is the assertion that Harry Reid had the power to singlehandedly force Frist to pull the trigger, which isn't exactly fair. Moderates on both sides wanted to avoid a vote, and it's unclear that Reid could have said anything to prevent the Liebermans and Ben Nelsons of the world from negotiating a compromise. Additional assumptions include the following: 1) The Dems need to regain a majority in the Senate before they can even contemplate revenge for the nuclear option. In the summer of 2005, no one knew if that would happen in 2006, 2008, or whenever. (Actually, most of them were probably confident that it wouldn't happen in 2006.) 2) Once the Dems actually have a majority, which might not be for a half-dozen years or so, you have to get 51 votes in favor of the pure power grab that is the nuclear option. Maybe we all agree that it would have been more than justified, but that's not the point. Not every bit of nastiness in Congress results in tit-for-tat revenge, and you can bet a lot of Democrats would have felt like "gosh, even though the Republicans pulled a bullshit move with judicial filibusters, we don't want to look like we're just as bad as them." You guys are assuming that just because the Republicans did it, there would automatically be 51 Dems up for doing the same thing somewhere down the road. It's not that easy. 3) Point #2 holds doubly true when you consider that the new Dem majority would probably include a lot of new faces that had no part of the nuclear option fight. If it's 6 years after the fact, and the Republicans haven't abused the rulemaking authority other than the one time regarding judicial filibusters, you're going to have a hard time convincing a bunch of incoming freshman that their first priority should be getting the Republicans back for that move they pulled 6 years ago. Most fundamentally, you guys don't seem to acknowledge just how hard it is to round up 51 Democratic votes for anything at all. I think it would have been the height of folly for Harry Reid to have let Frist have his way - even assuming it was up to Reid in the first place - based upon nothing more than a prediction that someday in the future the Dems will be able to pay them back in spades. Reid doesn't control the party and it would be nothing but a wishful prediction. In my view, you guys are conflating the question of whether the Dems would have been justified in taking revenge with the question of whether they actually would have done it, and there are simply too many variables.
The Senate is the chamber that's deliberately blinkered towards public opinion. The House is the weathervane for the voters' mood. It was designed that way. Now, in situations like this, the aloofness of the Senate is obviously a problem, but given those constitutional constraints, getting Pop Warner and company to act like dicks, and put their votes on the record, isn't too bad a result. (Tangentially, this is why Senators generally have trouble running for president. Votes like this -- 'Senator Fuckwit voted against an open debate on the war' -- make for very good negative ads.)
Passage of the Senate resolution against the surge would be a catastrophe for the Bush administration even though it's "non-binding. " The catastrophe would be on two levels. First, the anti-surge resolution would represent a no confidence vote that would serve as an official acknowledgement of popular opposition to the surge and would further isolate the Bush administration and their neo-con constituency. The public has already declared "no confidence" in the Bush administration's conduct of the Iraq War and the Senate resolution would turn that public opinion into an official government act. "Non-binding" or not, the Senate resolution would confirm the Bush administration's position as a renegade government working against the public consensus on matters of war and peace. Second, passing the anti-surge resolution would confirm Congressional Democrats as the most important vehicle for broadly legitimate government on the federal level. In many ways, the Bush administration has abandoned the effort to represent the larger American population and is focusing instead on being the "representative" of a "little America" comprised of neo-con think tank operatives, talk radio, and right-wing voters. Like Nancy Pelosi's trip to Iraq, the surge resolution is a cautious effort by the Democrats to provide some representation for the whole population. Passing the surge resolution would have put the Bush administration's abandonment of the broader public into much bolder relief. By delaying the debate, the Senate Republicans have dampened the damage being done to Republicans by the surge. Though the public still overwhelmingly opposes the surge, the Republicans have kept the Senate from enacting that popular opposition into legislation (however unbinding). Likewise, Republican delaying tactics have at least delayed the time when Harry Reid, Dick Durbin, Chuck Shumer, Nancy Pelosi, and John Murtha become the credible voices of American consensus. "The debate about the debate" is a defeat for the Republicans because it keeps the unpopularity of the surge before the American public. However, Republican success in delaying the debate keeps the defeat from becoming a disaster.
I don't think this resistance by the Republicans is de facto evidence that the non-binding resolution is a good idea. It is how the Republicans ALWAYS respond to preliminary self-compromise. Republican rhetoric frequently causes Democrats to be hesitant to offer strong legislative action. Democrats compromise before a bill is even introduced. Republicans then vociferously attack the already compromised offering as if it is an unacceptable far-left position. Democrats have really got to stop this. Start strong. Sell your position to the public as mainstream, and paint the Republicans as intransigent - then compromise.
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Heads in the Sand
Dude, E.J. Dionne beat you to this argument. But it is a good one.
http://www.washingtonpost.com/wp-dyn/content/article/2007/02/05/AR2007020501180.html
Posted by Dave | February 6, 2007 10:18 AM