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Senate Democrats need to use 'nuclear option' against GOP

The thing that really bothers me about Republicans' use of the filibuster to derail bills and stall the Senate's legislative process is not the tyrannical behavior of the GOP minority; it is the complicity of the Democratic majority.

While the Senate's 59-member Democratic caucus is one vote short of the 60 votes needed to cut off a filibuster, it has eight more votes than is required to stop the body's 41 Republicans from using the tactic to effectively block the will of the majority.

For much of its history, the Senate permitted unlimited debate on an issue. But in 1917, it enacted a rule that allowed a two-thirds majority of the body's members to cut off debate. That was reduced to a three-fifths vote in 1975. Since then, the Senate has been required to get the backing of 60 of the body's 100 senators to end a filibuster — a supermajority that flouts the basic idea of a majority-rule democracy.

Senate Majority Leader Harry Reid has effectively dismissed some of his fellow Democrats' efforts to change Senate rules so that, eventually, 51 votes would be enough to eliminate the filibuster.

Five years ago when Republicans controlled the Senate, they threatened to do just that when Democrats used the filibuster to block 10 of President Bush's judicial appointments. They called it a "nuclear option" and for good reason. The thing Senate Democrats and Republicans fear more than being in the minority is being out of power. The filibuster allows the body's minority party to stop the majority from acting if it can rally to its side 41 of the Senate's votes.

Until recently, the filibuster was used sparingly. But as party lines have come to mark this nation's ideological divide, the filibuster has become the roadside bomb of the Senate's minority party.

But as frustrated as each party has been by the other's heavy-handed use of the filibuster, neither has been willing to detonate the "nuclear option" out of fear that such action would harm them, too.

As he spoke in support of ending the filibuster last week on MSNBC's The Rachel Maddow Show, former Democratic Party chairman Howard Dean seemed to wish it wouldn't come to that. "Even though having a filibuster would help us in the long run if we get back into the minority, which statistically someday we're likely to do ... I think for the good of the country, we probably have to go forward (and) eliminate the filibuster."

The filibuster is a Faustian bargain that undermines the will of voters. The promise of change that swept Barack Obama into the presidency and padded Democratic majorities in the House and Senate last year has been largely derailed by the Senate's Republican minority, which has kept a broad array of legislation from coming to a vote.

More than outrageous, this legislative tyranny holds hostage our democracy to the whims of a political party that was on the losing end of an election cycle. The voters who gave Democrats control of Congress and the White House in the recent elections expect results, not inaction. They expect Congress to bring bills to a vote, not allow a mean-spirited minority to filibuster them to death.

If Democrats won't use the majority voters gave them to end this bad practice, then they deserve to suffer their wrath in November's elections.

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Dodd Defends Filibuster, Calls for More “Civility”
“I totally oppose the idea of changing filibuster rules,” Dodd said during an appearance on MSNBC. “That’s foolish, in my view.”

Some other Democratic senators, led by Tom Harkin (Iowa) and Jeanne Shaheen (N.H.), have introduced a measure to change the filibuster, though leaders have acknowledged it is unlikely to pass.

Still, Democrats have been stymied on top priorities like health reform and climate change legislation by not being able to get the 60 votes needed to end debate, despite having had a majority of that size for some months.

Dodd said that changing filibuster rules wouldn’t do much to change a culture of incivility he said had crept into the Senate.

“There’s nothing wrong with partisanship. We’ve got to get over this notion that there’s something evil about partisanship,” the Connecticut senator said. “It’s the lack of civility.”

This mostly strikes me as non-responsive. Absolutely nobody outside of Washington, DC cares how civil or incivil members of the United States Senate are to one another. Indeed, as best I can tell Senators actually treat each other in an excessively polite manner. Any normal human being would have been disgusted by the bipartisan outpouring of love for corrupt mediocrity Ted Stevens that issued forth on the Senate floor on the occasion of his departure from the world’s least-functional deliberative body. But one way or another, the goal of Senate rules should be good public policy. If Dodd has an argument that the filibuster improves public policy, he should offer it. But “civility” is a non-issue.

I think there’s clear reason to believe that majority rule would, by reducing the bargaining power of individual members vis-a-vis party leadership and the White House, lead to policymaking that’s more focused on the national interest. Evan Bayh, for example, brags about how he “helped revitalize the recreational vehicle industry during tough times in the economic recession, passing a generous new sales tax deduction to help families purchase recreational vehicles.” Of course there’s no reason to think that a special tax incentive to buy RVs is good idea for America. But they build RVs in Indiana. And the need to assemble 60 votes to pass legislation makes it very reasonable for legislative leaders to agree to small-bore bad ideas like this in order to secure people’s votes. If you only need 50 votes there will still be side-deals, of course, but the “price” of such deals will be lower.

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Southern senators who sought to block civil rights legislation, including anti-lynching legislation, until cloture was invoked after a 57 day filibuster against the Civil Right Act of 1964. In 1975, the Senate reduced the number of votes required for cloture from two-thirds to three-fifths, or 60 of the current one hundred senators.

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First, the Constitution explicitly requires supermajorities only in a few special cases: ratifying treaties and constitutional amendments, overriding presidential vetoes, expelling members and for impeachments. With so many lawyers among them, the founders knew and operated under the maxim “expressio unius est exclusio alterius” — the express mention of one thing excludes all others. But one need not leave it at a maxim. In the Federalist Papers, every time Alexander Hamilton or John Jay defends a particular supermajority rule, he does so at length and with an obvious sense of guilt over his departure from majority rule.

Second, Article I, Section 3, expressly says that the vice president as the presiding officer of the Senate should cast the deciding vote when senators are “equally divided.” The procedural filibuster does an end run around this constitutional requirement....

Third, Article I pointedly mandates at least one rule of proceeding, namely, that a majority of senators (and House members, for that matter) will constitute a quorum....It would be illogical for the Constitution to preclude a supermajority rule with respect to a quorum while allowing it on an ad hoc and more convenient basis any time a minority wanted to block a vote. Yet that is essentially what Senate Rule 22 achieves on any bill that used to require a majority vote.

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In the Parliament of the United Kingdom, a bill defeated by a filibustering manoeuvre may be said to have been "talked out". The procedures of the House of Commons require that members cover only points germane to the topic under consideration or the debate underway whilst speaking.

Both houses of the Australian parliament have strictly enforced rules on how long members may speak, so filibusters are generally not possible there.

Most attempts at stalling legislation are usually just for show and last a relatively short period of time. But in 1997, the opposition parties in Ontario tried to prevent Bill 103 from taking effect, setting in motion one of the longest filibustering sessions Canada had ever seen.

The Northern Ireland House of Commons saw a notable filibuster in 1936 when Tommy Henderson (Independent Unionist MP for Shankill) spoke for nine and a half hours (ending just before 4 AM) on the Appropriation Bill. As this Bill applied government spending to all departments, almost any topic was relevant to the debate, and Henderson used the opportunity to list all of his many criticisms of the Unionist government.

In the Southern Rhodesia House of Assembly, the Independent member Dr Ahrn Palley staged a similar all-night filibuster against the Law and Order Maintenance Bill in 1960.

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Senate Rule 22 permits filibusters in which actual continuous floor speeches are not required, although the Senate Majority Leader may require an actual traditional filibuster if he or she so chooses.

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According to the Supreme Court ruling in U.S. v. Ballin (1892), changes to Senate rules could however be achieved by a simple majority:[26]

The constitution empowers each house to determine its rules of proceedings. [...] The power to make rules is not one which once exercised is exhausted. It is a continuous power, always subject to be exercised by the house, and, within the limitations suggested, absolute and beyond the challenge of any other body or tribunal.
The constitution provides that 'a majority of each [house] shall constitute a quorum to do business.' In other words, when a majority are present the house is in a position to do business. Its capacity to transact business is then established, created by the mere presence of a majority, and does not depend upon the disposition or assent or action of any single [144 U.S. 1, 6] member or fraction of the majority present. All that the constitution requires is the presence of a majority, and when that majority are present the power of the house arises.

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