Bell Curve The Law Talking Guy Raised by Republicans U.S. West
Well, he's kind of had it in for me ever since I accidentally ran over his dog. Actually, replace "accidentally" with "repeatedly," and replace "dog" with "son."

Tuesday, December 16, 2008

Hill Battles Begin - and the Filibuster is Discussed

So, Pelosi has made it plain to Rahm Emmanuel and Obama that she expects to speak for the Democrats in the House in their negotiations. She will do what she can to torpedo any attempt by Obama to forge his own House coalition. Expect similar words from Harry Reid, although the Senate is always harder to control.

We discussed earlier on this blog that reaching out to Republicans is almost irrelevant now, as they are all but irrelevant. The goal is just to reach out to a handful of 2 or 3 Senators. Or, as Nate Silver suggested yesterday (and I've been bitching about since George Mitchell screwed the pooch in 1993) bar the "gentleman's filibuster" and require a real filibuster. Beyond that, the whole issue will be negotiating within the Democratic caucus to find the right balance. It helps that there are several new Senators that owe their election to Obama, and four more who will owe their appointments to him. Pelosi wants to be the dealmaker, not someone who is sidelined by moderates in the Senate and the WH. We shall see how the new Congress governs soon enough.

I suspect that Silver's recent call is going to be amplified by others to really crack down on the filibuster (his political analysis is very cutting edge numerically, but otherwise conventional). The legitimacy of filibustering is at an all-time low with a huge Democratic majority in the Senate and a mandate for serious action in the midst of a sudden and dramatic recession. Also, the large Democratic majority and likely results in 2010 suggest that Democrats have less insittutional reason in the short run to protect the gentleman's filibuster.

For those who don't know, until about 1970, a filibuster had to be real (reading endlessly). Cloture (the right to end debate) did not originally exist. It was just a waiting game. Filibuster usually broke evnetually. Then around 1900, there was created a 2/3 vote to invoke cloture. In 1975, this was lowered to 60 votes, but the act of filibustering was made easier (to remove the unseemly spectacle). Debate could be put on hold while the Senate took up other business. So a filibuster could essentially remain in place while the Senate proceeded to other business. The result has been the unexpected and unanticipated creation of real supermajority requirement in the Senate.

Let me repeat that, the filibuster as we see it today was NOT part of Madison's plan, nor anyone else's. And for nearly 200 years, the basic rule was that a handful of senators could block a piece of legislation for a while at enormous cost of political capital, but the general principle was majority rule. Erosion of this principle has been a serious cause of failed government in Washington. It also seems to have encouraged the executive to "go it alone" as much as possible under Bush, because of the deadlocked Senate. The senate should, I believe, revert to earlier rules on filibuster that relegate it to a rare high-cost tactic. I was in favor of this, btw, even when the Dems were in the minority, although I confess that I was happy at that time with the results of a bad rule (blocked GOP legislation).


Spotted Handfish said...

LTG, is the filibuster simply a matter of convention then, or is it part of the rules of the Senate?

The Law Talking Guy said...

It is part of the Senate's precedent and current procedural and parliamentary rules. The rule that permits a filibuster is the one that requires 60 votes to end debate. The convention that enables the practice is the one that allows the Senate to go onto other business when "debate" is not ended, rather than insisting that the filibusterers continue the debate or permit a vote on the question.