Let Them Filibuster: A Senate rules change may not be wise.

National Review Online ^ | December 15, 2004 | The Editors

[NavyPilot45]

I disagree. I think the Republicans tend to comply with the rules but the Libs do not. People state that when the situation reverses itself, and it will, and the Libs will be in the majority, it would be nice to have the filibuster available to stop a Lib nominee, but I say if it is wrong then do not use the filibuster no matter who has the majority. If it is suppose to just be a majority vote then it does not matter who is in charge, just vote. And secondly, in my opinion, if the Libs return to power they will get rid of the filibuster with no second thoughts if needed. For example, the Libs had no problem using the filibuster even though it was not used for judicial nominees in the past. What happened, FILIBUSTER IN FULL FORCE, with Libs out of power.

[BJClinton]

they will filibuster forever.

Or until 2002, whichever came first. At which point they would be routed in the elections.

[mrsmith]

Say they lose two seats in "Republican" states. We'd lose Chaffee and Snowe from "Democrat" states.

The filibuster hurts our 'moderates' too.
The Party wants them to vote for good judges, their electorate wants them to defend Roe v Wade. EIther way they lose. But end the filibuster and they can vote using RvW as a litmus test all they want.

[discostu]

Of course round the clock filibustering punishes the people trying to get cloture more than the people blocking it. They need to keep the debate going, the blockers just need to keep enough people there to have quorum, they don't even have to talk, just not vote for cloture.

[RJL]

What I want is revenge. Next time they have the power to nominate, may we filibuster 'em all -- every last one.

It won’t work that way, the Democrats would change the rules in a heartbeat leaving the Republicans babbling.

A supermajority needed to break a filibuster was 2/3rds or 67 votes. In the 70’s when the Democrats found themselves unable to get around a determined Republican minority, they changed the rules to 60 votes instead of 67.

The Democrats have already changed the rules once, nothing would stop them from doing it again. All the media hype about hard feelings and bringing the Senate to a stop is BS, proven by the fact that the rules were changed, by Democrats, previously and life goes on in the Senate.

[So Cal Rocket]

Of course round the clock filibustering punishes the people trying to get cloture more than the people blocking it. They need to keep the debate going, the blockers just need to keep enough people there to have quorum, they don't even have to talk, just not vote for cloture.

Actually, the "blockers" only need one person there... the person speaking... it's the "blockees" who need to keep a quorum, otherwise the blockers can make a quorum call, and if there aren't 51 Senators there, they adjourn with no action taken.

[discostu]

Correct, I mis-stated.

[Gorjus]

Actually, it doesn't take 60 votes to break a fillibuster. It only takes 3/5 of those present and voting.

Sorry, but this is wrong. Per Senate Rule 22, "And if that question [cloture] shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn..."

Here's the way it works. When the time comes to vote on an issue, the presiding Senator asks if there are any objections to voting on the issue. If no one objects, the vote goes ahead. If any Senator objects - by declaring that additional debate is needed and he wants time to debate it - they either give him that time, or they agree to postpone that vote while moving on to other business.

Until 1917 there was no way to end debate on an issue (within the Senate rules). In 1917 they amended the Senate rules to allow for a vote of cloture, but the requirement for cloture is an affirmative vote by 60 Senators absolutely (3/5 of all 'Senators duly chosen and sworn') not just 3/5 of those who are there.

Here's the catch: If they decide to proceed with a 'real' filibuster, then the Dems can talk in waves - but any time that they choose to withdraw their objection to the vote, they can call for an immediate vote. ("I'm done debating now, let's vote.") Then the presiding Senator calls for a quorum, and within about an hour they have to vote. At that point, it's a simple majority (on things like consenting to judicial appointments) but it's a majority of those who are there when the roll is called about an hour after debate ends.

That means the objectors call the shots. They can talk as long as they want, most of them sleeping or whatever. They can even go home if they want. But the majority party (Republican) has to keep their majority within an hour of the Senate floor at all times or the vote may happen before they can get back.

The counter to this, in part, is that the presiding Senator can compel attendance to a quorum call. That means that if the Dems went home while only one person debated, the Republicans could object and have the Senate Master-at-arms go round up enough Senators to have a quorum (51 Senators). In practice, since the Republicans alone constitute a quorum (if they're all there) the Master-at-arms would stop looking when the Republicans were all registered as present. So if the Dems were really at home or something (not just down the hall or in their offices) they wouldn't have to come.

Now, if that all sounds like a stupid system, replace Dems with Republicans and vice versa. Read it as President Clinton appointing Hillary to the Supreme Court in 1993 (or President Hitlery appointing Bubba to the Supreme Court in 2009) and decide if those impediments are a good idea.

The basic premise of the NRO article is correct. We have to make them pay a political price, because we (will, someday) need those filibuster rules.

[xsysmgr]

If filibusters are such a good idea why did the first Senates forbid them?

They didn't.

Originally, senate rules permited a senator, or a series of senators, to speak for as long as they wish and on any topic they choose which need not be relevant to the topic under discussion.

Until 1917, there was no formal mechanism to allow the senate to close debate, and any senator could start a filibuster. From 1917 to 1949, two-thirds of those voting could limit debate on a measure. As civil rights loomed on the Senate agenda, this rule was revised in 1949 to allow cloture on any measure or motion by two-thirds of the entire Senate membership; in 1959 the threshold was restored to two-thirds of those voting. After a series of filibusters in the 1960s over civil rights legislation, in 1975 the Senators changed the filibuster requirement from 67 votes to 60, after concluding that it only takes a simple majority of Senators to change the rules governing their proceedings.

As Senate Majority Leader Mike Mansfield (D-MT) said at the time: "We cannot allow a minority" of the senators "to grab the Senate by the throat and hold it there." Senators Leahy, Kennedy, Byrd, and Biden, all agreed. Nearly a decade ago, Lloyd Cutler, the former White House Counsel to Presidents Carter and Clinton, concluded that the Senate Rule requiring a super-majority vote to change the rule is "plainly unconstitutional."

(Source: Wikipedia's "Filibuster (legislative tactic)" and The Cato Institute's article "The Filibuster")

[RJL]

If the Republicans can't muster 60 votes to get cloture, how are they going to get 67 votes to change the rules?

Two ways:

The first thing every new Senate does it to vote by simple majority on the rules of the Senate.

I'm a little weak on this one. But procedurally, if a Senator were to suggest that the filibuster wasn't keeping with the "advise and consent" clause of the Constitution and the Senate President agrees, it goes to a simple majority vote.

[Digger]

If the dems regain the senate and we elect a dem president, they would change this rule in the first day of the new session. Why wait?

This is just one of those illogical "Two-Party Cartel" reasonings & the people will probably fall for it. The only peaceful way is if we have a group as determined as in Ukraine & we force it.

[Freakazoid]

Agreed. Change the rule.

[Iconoclast2]

What was it that Ann Coulter called these guys? This article seems to confirm her opinion. We can wait until after the first filibuster to change the rules, but there is no reason to wait any longer than that.

[rcocean]

Why are conservatives so stupid?

Honestly, are the NR editors really liberals trying to sabotage us from the inside? If they were, they would make the same argument.

Filibusters against judicial nominees are unconstitutional, no matter who makes them. The President was elected to and has the authority to appoint judges. The senate has no right to refuse to confirm them based on the whim of 40 senators.

[Gorjus]

The Senate has no power to enact rules which change the Constitution as the filibuster for judicial confirmation has. It cannot arbitrarily decide that a judicial confirmatioin requires 60 votes when the Constitution says a majority will do.... There are no legitimate Senate rules which allow it to violate its Constitutionally required duties.

So, what's your point? That's not what's happening. The rules in question deal with debate, and when the debate will end and a vote will be taken. There is nothing in that rule that speaks to the final vote, and nothing in that rule which is unConstitutional. As several posters have pointed out, the Constitution does give each house the right to set their own rules on things like debate.

If they said something like, "After debate is ended, judicial appointments will require 60 affirmative votes" you'd have a point about violating the Constitution. That's not what's happening. It may have that effect, but the actual issue is about when debate ends, and the Senate does have the Constitutional authority to set its own rules for that.

[RJL]

Wikipedia's "Filibuster (legislative tactic)" and The Cato Institute's article "The Filibuster"

Thanks.

[rcocean]

What stupid reasoning, "let them filibuster, because they'll look bad and we'll win next election."

So in 2006, we don't get 60 senators, we get 58.

So, "let them filibuster, we'll get 60 senators in 2008".

Only, we don't. So "let them filibuster, we'll get 60 senators in 2010".

Only we don't. Finally, in 2020 we get the 60 votes, by which time there isn't a single Bork like conservative on the bench.

But we don't care anyway, because by the time the Repubs get 60 votes we'll be all dead of old age.

[Keith]

Amen...the Constitution is the point here...the judges are simply the touch-point.

[mrsmith]

"Until 1917 there was no way to end debate on an issue (within the Senate rules)."

That is just wrong.

Judge for yourself:
"The political scientist Lloyd Cutler points out that they adhered to the precedent of the English parliament that allowed a simple majority to cut off a debate by a motion for “the previous question.” This device was included in sections eight and nine of the rules adopted by the first Senate in 1789, and was in effect until it was removed in 1806 ."
Filibuster
(Sorry, I no longer have a link Cutler's paper at hand. It's on the internet somewhere though.)

The rule can easily be found in the original sources: Journal of William Maclay, United States Senator from Pennsylvania, 1789-1791
"Rule 7. In case of a debate becoming tedious, four Senators may call for the question; or the same number may at any time move for the previous question, viz, "Shall the main question now be put?" "
MacClay was on the Senate committee that wrote the first rules.

And in A MANUAL OF PARLIAMENTARY PRACTICE: for the Use of the Senate of the United States. BY THOMAS JEFFERSON.
"WHILE a question is before the Senate, no motion shall be received unless for an amendment, for the previous question, or for postponing the main question, or to commit it, or to adjourn. Rule 8. "

Calling the previous question can be, and was, used as a delaying tactic itself (there is much in Jefferson's manual about it). However it made it possible for a simple majority to always insist upon a vote on any question.

Original sources are always best.

[mrsmith]

See #59 above. The Senate did not allow filibusters until 1806. The first one was in 1847 I believe.