The Filibuster-Everything Minority

The above graphic appears in this Campaign for America's Future report on the unprecedented obstructionism of the Senate Republican caucus. As they write, "A roll call of the bills subject to conservative filibuster shows a vision for a different America. Conservatives filibustered bills to end the occupation of Iraq, reduce subsidies for oil companies, and allow residents of the District of Columbia to vote. Conservatives used the filibuster to kill legislation that would increase renewable sources for electricity and that would allow soldiers in Iraq rest time equal to their deployments."

Digby's right to note the screwy media coverage of this. I got asked by a radio producer maybe 36 hours ago if I thought the congress' failure to "get things done" would hurt Democrats in 2008. I said I thought not, that part of being in the majority is that you only bring up for consideration issues where the public favors your position. The Republicans, thus, have been blocking lots of popular Democratic measures which should hurt them in the fall. She reacted as if this was an unusual perspective, which I guess it is, but it says something that it's an unusual perspective.

But, of course, I might be wrong; this hurting Republicans in 2008 is dependent on voters understanding what's happening and I'm not sure they are. Certainly, though, the GOP is playing a risky game. It's worth considering, though, that they're trying this strategy because they think it works. They think, in particular, that during 1993-94 they very successfully stymied Bill Clinton's agenda and then used their own obstructionism to paint him as a "failure" leading to big gains in the midterms. Unless a whole bunch of Senate Republicans lose their seats next year, you can expect 2009 to be even more full of filibusters than the current congress has been. Even a landslide triumph in the presidential election for your "change agent" of choice probably won't make a big difference unless enough Senators go down to induce panic.

Comments

the smart strategy for Democrats is to run campaigns attacking the individual Republicans. Senator so and so voted against blah blah blah big oil, yada yada yada against the troops resting. I would run a big smear campaign against each one individually by using their record against them. No mercy.

Posted by freddiemac | December 20, 2007 10:44 AM

NPR had a segment this AM about this issue. or, at least their teaser at the start of the segment said it would be about it. but, the two or three minutes i heard, before i got out of my car, was all about giving McConnell time to call the Dems failures and letting some Dems crow about things like raising the minimum wage.

did anyone else hear it? did they explain why the Dems are unable to get anything done ?

Posted by cleek | December 20, 2007 10:49 AM

Is there a list of the cloture votes out there? It would be amusing and sad to see all the votes that failed when a majority in the Senate voting yes.

Posted by Alex | December 20, 2007 10:50 AM

I wonder if enough of this will finally convince a critical mass of Dems to try to get rid of the filibuster.

(Or at least convince a few more commenters here that that would be a good idea.)

Posted by lemuel pitkin | December 20, 2007 10:51 AM

"The Republicans, thus, have been blocking lots of popular Democratic measures which should hurt them in the fall."

If these measures that the Democrats wanted to pass were truly popular then there would be political pressure on such hard core GOPers like Spector, Warner and the girls from Maine to break ranks and to vote for closure to allow these measures to come up for a final vote to pass the Senate.

The fact that there the GOP has been so successful in stopping these "popular Democratic measures" is strong evidence that they are not popular as you may believe or there is no strong political demand for them.

It is also strong evidence of the utter cluelessness of the Democratic Senate leadership who seem incapable of running the place. I wouldn't be surprised if Harry Reid gives up being majority leader in order to save his sorry ass from getting beaten in Nevada ala Tom Dashle.

Posted by Chicounsel | December 20, 2007 10:57 AM

chicounsel being the kind of jerk who calls women senators "the girls from maine," it's not a surprise that he can't differentiate between things that are popular nationally and yet unpopular within the republican party. given the limited ideological diversity of the gop, there is no such thing as a gop moderate, and so people like specter, warner, stowe, and collins are exceedingly unlikely to vote for things moderates want.

as for the serious substance here, the interesting things in matthew's comments are twofold: a.) the inability of the unnamed radio producer to even imagine an alternative narrative (so telling); b.) the strange presumption by the gop that 2008 is just like 1994....

Posted by howard | December 20, 2007 11:22 AM

Why isn't the "nuclear option" on the table? When the Republicans had the majority, they used that as a cudgel to keep Democrats on their heels. Why don't the Dems talk up the hypocrisy of the Republicans tactics and their newfound enthusiasm for filibusters? It is incredibly frustrating seeing Republicans skating on this issue.

Posted by Matt | December 20, 2007 11:24 AM

It takes two to tango.

If the Democrats would just bring up legislation that is acceptable to a sufficient number of Republicans, the Republicans wouldn't have to require all those cloture votes.

Posted by Al | December 20, 2007 11:35 AM

Alex wrote:

Is there a list of the cloture votes out there? It would be amusing and sad to see all the votes that failed when a majority in the Senate voting yes.

Freddiemac wrote:

the smart strategy for Democrats is to run campaigns attacking the individual Republicans. Senator so and so voted against blah blah blah big oil, yada yada yada against the troops resting. I would run a big smear campaign against each one individually by using their record against them. No mercy.

I agree. This strategy would have positive outcomes for Democrats all over the country, especially if one notes that the GOP plays by different rules when in the minority--roll the tape back to the nuclear option debates and each Senaotrs statements back then. NB the Republicans have many more Senate seats up for graps that the Democrats. It might even work in places like Texas.

Posted by djeri | December 20, 2007 11:38 AM

Why don't the Dems talk up the hypocrisy of the Republicans tactics and their newfound enthusiasm for filibusters?

Talking up hypocrisy is nice (and do you have any reason to think Dems aren't doing it already?), but at some point you have to stop talking and actually change the rules.

Posted by lemuel pitkin | December 20, 2007 11:38 AM

No, filibusters don't count the same if your party has the Whitehouse.

The Democrats could go to the mat and force the GOP to actually filibuster the bills, the GOP would eventually run out of steam and have to let at least some through. There is little point in doing that when Bush would use the veto.

That is the only point to the filibusters at this point, protecting Bush, the one Republican who cannot stand for re-election.

If Giuliani or Huckabee were elected we could expect four more years of the same, but the probability of that occurring is not large.

With a Democrat in the Whitehouse the GOP will probably have enough votes to filibuster but lose the veto power. The Democrats can then use their control of the floor to roll up all the bills they want to pass into one single measure and let the Repugnants just vent.

Posted by PHB | December 20, 2007 11:46 AM

It's worth noting that if you add up all Democrats+Joe Lieberman+Snowe+Collins+Specter+Warner, you get 55. It takes 9 Republicans, + Lieberman, to get to cloture. So pace Chicounsel, "the girls from Maine" are not the issue. They could vote vote with the Democrats on every cloture vote and it wouldn't make a damn bit of difference.

In terms of the "nuclear option," it's worth noting that that had to do only with judicial appointees. Even the Republicans had no argument to declare the filibuster constitutional, in general, and any argument the Democrats make would be incredibly full of shit, because the filibuster isn't unconstitutional. My general opinion is that the Constitution mostly sucks, but while it's around, it strikes me that we shouldn't be making up bullshit reasons why things that have been done for 200 years are unconstitutional.

Abolishing the filibuster might be lovely, but it's not something that can be done with a majority vote, and, in any event, I'm quite sure that there's not even a majority for abolishing the filibuster - All the Republicans + Robert Byrd would be enough to prevent it, among other things.

So, anyway, the point is that the Democrats should be making the Republicans pay for filibustering. My impression is also that the Democrats should actually call the Republicans' bluff and demand an actual filibuster. Certainly they can find something that the Republicans are supposedly "filibustering" which is so overwhelmingly popular with the country that the Republicans will look like asses if they spend hours on the floor talking to keep it from passing. Make them do that. Eventually people will defect, and the Republican filibuster will be broken.

Posted by John | December 20, 2007 11:47 AM

She reacted as if this was an unusual perspective, which I guess it is, but it says something that it's an unusual perspective.

Marketplace of ideas, and all that.

Right.
.

Posted by Grand Moff Texana | December 20, 2007 11:47 AM

If these measures that the Democrats wanted to pass were truly popular then there would be political pressure on such hard core GOPers like Spector, Warner and the girls from Maine to break ranks and to vote for closure to allow these measures to come up for a final vote to pass the Senate.

Yeah! Right! 'Cause, like, people would find out about these proposals through the, uh ... the ... um, they would hear about them in the ... uh [pffft], aw hell, I dunno.
.

Posted by Grand Moff Texan | December 20, 2007 11:53 AM

"Certainly, though, the GOP is playing a risky game."

Really? As your anecdote with the radio producer should have told you, the risks of this Republican strategy are minimal and the upside (for Republicans) has been, and likely will continue to be, high. Not really interested in responsible governing in any case, they are blocking measures (often popular ones) they do not wish to be passed and the fault is being laid against the Democrats. Is this likely to change? Unfortunately, I don't see it.

The problem is a familiar one to the netroots--the bulk of the MSM is filtered through RNC talking points and the Democrats are too feckless and strategically inept to pushback. The MSM has discovered, somewhat magically, the 60-vote rule to pass billls in the Senate, with virtually no mention in their reportage that these votes are attempts to cut off Republican filibusters. Despite the inherent MSM bias, the Democrats could probably get some traction in increasing awareness of Republican obstructionism. This would require them for once to act like Republicans do every day--a concerted, consistent, and repetitious campaign against these tactics in every media outlet. Instead, Reid & Co. do little more than shrug at the failure of each cloture vote.

In addition, there is the failure of Reid to require a real, old-fashioned Jimmy Stewart filibuster. There has been much discussion of the value of this in the progressive blogosphere. I doubt if it would change any votes (though it is not impossible as the election nears that the pressure on some GOP "moderates" like Gordon Smith and Susan Collins might produce results). However, if used on the right issue, and skillfully executed as political theater, it likley have a helpful effect. Unfortunately, it's hard to say the words "Democrats" and "skillful political theater" in the same sentence these days without laughter (or a sad head shake).

Slightly off topic. Many people refer to the hypocrisy of the Republicans in using this stategy after pursuing the nuclear option in the last Congress. I bow to no one in calling out Republican hypocrisy, but this is a bit off factually. The nuclear option was aimed solely at filbusters on nominations, not legislation in general; indeed, at the time, Matt recommened that the Democrats should have esclated the option to encompass filibusters generally. (BTW, it is worth repeating, that the essence of the nuclear option planned to have a Republican majority uphold a parliamentary ruling by Dick Cheney that a Senate rule that clearly required a 2/3 majority for amendment essentially did not state what it obviously did. The party of the rule of law indeed.) Of course, if a Democrat wins in 2008, the supremely hypocritical Republicans will routinely use filibusters on nominations, blithely deny their "up or down vote' mantra was ever uttered, and never be challenged by the MSM.

Posted by Marlowe | December 20, 2007 12:09 PM

Al wrote:

"If the Democrats would just bring up legislation that is acceptable to a sufficient number of Republicans, the Republicans wouldn't have to require all those cloture votes."

Isn't the point of being, you know, the majority, that you don't have to "bring up legislation that is acceptable to a sufficient number of" members of the, you know, minority?

I think the GOP believed that when they were in charge. The former Republican majority was one of the most partisan in history and rammed through everything with the narrowest margin possible, with nasty procedural tricks if necessary.

And it's one thing to block judicial nominees one deems to be too extreme. It's quite another to filibuster everything that moves after having decried the total evil of the filibuster when the tables were turned. Republicans are not interested in bipartisanship, even if they are the opposition.

Posted by Patrick | December 20, 2007 12:15 PM

There is so much whining about the media, but the media is only going to make this a story if Democrats show some discipline and actually talk about Republican obstructionism. As long as Senate Democrats passively sit their and take loss after loss, never saying squat, it will never get covered.

The GOP got the "nuclear option" on the table by sheer force of will. They went on the talk shows and yacked about it. They got in the major newspapers and gave quotes about it. They pounded away until "up or down vote" became a oft-repeated phrase in DC.

The Democrats do none of this. You don't get media coverage by sitting on your ass.

Posted by owenz | December 20, 2007 12:17 PM

Isn't the point of being, you know, the majority, that you don't have to "bring up legislation that is acceptable to a sufficient number of" members of the, you know, minority?

No, it isn't. Where the cloture requirement is an option, being in the "majority" (but with less than 60 votes) does not mean having an absolute dictatorship. If you never bring up legislation that is sufficiently bipartisan, you will get lots of cloture votes.

Posted by Al | December 20, 2007 12:31 PM

Filibustering and cloture are the wonkiest of wonk issues. Almost all voters except political junkies need intelligent, frank, good-faith reporting to understand what's happening, and that's exactly what American voters almost never get.

People talk about "stupid voters" all the time, but voters' stupidity is enabled and enhanced by misinformation from well-paid, well-educated journalists who think of themselves as professionals but consistently produce misleading reporting.

Posted by John Emerson | December 20, 2007 12:46 PM

The media's coverage of the Democrats' "failures" to get anything has been irresponsible at best.

Check out the Washington Posts' article on the Democratic Congress today

http://www.washingtonpost.com/wp-dyn/content/article/2007/12/19/AR2007121902643.html?hpid=topnews

Hit control+F and type in the word "filibuster." It is not mentioned, not even once.

While Harry Reid has been a terrible leader in the Senate, blaming the Democrats entirely for not getting bills through is lazy and inaccurate.

Posted by Fox | December 20, 2007 12:47 PM

Abolishing the filibuster might be lovely, but it's not something that can be done with a majority vote

This is not necessarily true. There is a strong argument that the rules adopted by the Senate are binding only for that Senate. When a new Senate takes office (i.e. every two years) their first act is typically to adopt the existing rules. The case can be made that on a vote taken before the rules were adopted -- including a vote on changing the rules -- the presiding officer could cut off debate without 60 votes.

This theory has never been tested but it's held by serious scholars. More broadly, if the Democratic leadership were making a serious effort to end the filibuster, the Republicans would have a much stronger incentive to limit their use of it.

Posted by lemuel pitkin | December 20, 2007 12:47 PM

I think this is right. I don't see how a prior senate can bind the procedures used by a new senate except through legislation. Given the expansive nature of modern federal authority, the filibuster (like the senate itself) seems like a pointless anachronism.

Posted by henry evans | December 20, 2007 12:52 PM

There is so much whining about the media, but the media is only going to make this a story if Democrats show some discipline and actually talk about Republican obstructionism.

Again, I'd really like to know why you're so certain that Dems aren't talking about this. There's an assumption among a lot of people here the reason there aren't headlines about filibusters is a failure of Dem rhetoric. I don't see any evidence to believe that's true.

Posted by lemuel pitkin | December 20, 2007 12:54 PM

Al, you intentionally miss my point, don't you? I do not claim that the Senate rules as they are do not give the GOP minority the power to block everything. What I say is that, in a democracy with majority rule, being the majority should generally mean the right to bring through one's agenda without being constantly obstructed my the minority.

One may or may not find the filibuster legitimate in some extreme circumstances. But to use it as a tool to regularly block the majority's will is clearly undemocratic. Under normal circumstances, in an democracy with the rule of law, what's supposed to protect the minority from misuse of power by the majority is the Bill of Rights, not some procedural trick in the Senate.

And, once again, the GOP in the last few Congresses used their majority to bring through their agenda to to max, and the Democrats, despite all of the Repub's whining and blathering about the "nuclear option", were very cautious with the filibuster compared with the Republicans right now.

I do not remember you supporting the the right of the Democrats to filibuster the extreme right wingers GWB nominated for the federal bench then. Now seeing you and your ilk shrugging and saying to the Democrats, "hey, why are you not more bipartisan?" is just breathtakingly hypocritical.

But if you are serious: Would you describe the GOP rule between 1994 and 2006 as an "absolute dictatorship"?

Posted by Patrick | December 20, 2007 12:55 PM

I find the '62 cloture votes' stat to be...well, not misleading, perhaps, but sufficiently opaque as to be unclear whether it's misleading.

I've gone through and counted the cloture votes for the 110th Congress to date, only with a tad more detail. I get a breakdown that looks like this:

31 successful cloture votes (>=60 votes for cloture, resulting in an up-or-down vote)
9 instances where cloture failed that didn't matter, because the bill's proponents would have lost on an up-or-down vote (assuming everyone would have voted the same on the measure itself)
19 instances where Dems had a majority for cloture, but couldn't get 60 votes
2 instances where the GOP had a majority for cloture, but couldn't get 60 votes
1 instance where there were 0 votes for cloture (don't ask me what that was about).

So that's 19 instances where the majority wanted an up-or-down vote, but was frustrated by the minority. That, IMHO, is the key stat.

But I don't know how that compares with previous Congresses. I could count them too, but it's time-consuming, and ISTM that that was what Campaign for America's Future should have done. This is their day job, not mine.

Posted by low-tech cyclist | December 20, 2007 1:41 PM

ISTM that that was what Campaign for America's Future should have done.

I Seem to Mean?
It's So Terribly Maddening?
It's Still Troubling Me?
In Such Time-consuming Matters?
If Someone Took [their] Medication?

Posted by lemuel pitkin | December 20, 2007 1:46 PM

I think this is right. I don't see how a prior senate can bind the procedures used by a new senate except through legislation.

A prior Senate can't bind a future Senate even through legislation. The Constitution is abundantly clear on this:

Each House may determine the Rules of its Proceeding

Article I, Section 5.

Rules are determined by each House individually; that means no legislation can bind even a current Senate's rules, much less the rules of a future Senate, because the House and President have no say on Senate rules. The current Senate is the sole body constitutionally capable of determining Senate rules and whether or not they've been followed.

If the Senate says that Senate rules have been followed, they've been followed. If legislation passed by a majority of a quorum--i.e. the only constitutional requirements for reporting out legislation--is reported out of the Senate, then the simple act of reporting the bill out of the Senate serves as constitutionally conclusive evidence, unquestionable by the House, President, or the courts, that Senate rules were followed.

If the Senate reports out a bill voted on by a 51-49 margin, that bill goes to the President or House as appropriate, regardless of any cloture votes, because only the Senate can determine whether its cloture rules have been followed, and the reporting of a bill passed by a majority of a quorum is conclusive proof that the Senate has found that they were.

The Senate is not required to report a bill just because it gets a majority of a quorum vote, but if it does report such a bill that's the end of the story of whether the Senate's properly reported it.

Posted by R Johnston | December 20, 2007 1:49 PM

Very helpful research R! There's clearly no bar to eliminating the filibuster. Some democratic senators who decried the "nuclear option" may feel that propriety requires them to let a little time pass before doing so, but they should start to pave the way by talking about how anti-democratic the filibuster is.

Posted by henry evans | December 20, 2007 1:56 PM

R Johnston,

I would be very pleased if what you say is true. Have there been any court cases on this kind of thing?

Posted by lemuel pitkin | December 20, 2007 2:26 PM

R Johnston,

I'm not a lawyer, but this is a subject that interests me, and I've never heard that argument before. Still, I'd be very pleased if it's true. Have there been any court cases on this kind of thing?

Posted by lemuel pitkin | December 20, 2007 2:29 PM

If you never bring up legislation that is sufficiently bipartisan, you will get lots of cloture votes.

Let's not be silly, Al. The goal is to make the Democrats look ineffective and bad. This is a deliberate strategy by which basically anything of substance will face a cloture vote, because nothing will be "sufficiently bipartisan." And the goal is to enable people to say meaningless sentences like "nothing has been sufficiently bipartisan."

Posted by SDM | December 20, 2007 2:58 PM

The Constitution is clear enough that the cases simply don't arise often, but the ones that do are pretty clear. The Supreme Court, for example, held the line item veto unconstitutional on grounds that support the above reasoning--constitutional rules about legislative procedure have to be adhered to very literally.

There's also the case of Nixon v. U.S. (not that Nixon, but rather a federal judge who was impeached), where the Court made clear that the Senate has pretty close to infinite latitude in deciding its own rules as to how matters are voted on. So long as final votes are reasonably clear expressions of intent by Senators, and not, for example, determined by rolling dice, the Senate can structure proceedings and preliminary votes however it wants to.

Posted by R Johnston | December 20, 2007 3:06 PM

ISTM = It seems to me

Posted by low-tech cyclist | December 20, 2007 8:25 PM

A few comments have asked for a list of the items filibustered. It's in our report, www.ourfuture.org.

Next I'd like to see the Ds force an all night filubuster. Make them drone like we learned in grade school.

Posted by Eric Lotke | December 21, 2007 2:24 PM