Filibuster

Traditionally, the filibuster was used to prevent legislation from proceeding to a vote in the Senate.  Strom Thurmond famously spoke for more than 24 hours in an effort to prevent passage of the Civil Rights Act of 1957.  The point is that the Senate allows debate to continue until everyone has had their say, even if it happens to be reading the phone directory into the Senate record.  In order to end debate, the Senate must assemble 60 votes.  What we have today is autopilot filibusters.  No one debates the bill.  No one puts in the time to speak ad nauseum to prevent a vote.  Nope, the minority party just says filibuster and voila, no vote without 60 votes.

The filibuster is a rule the Senate adopted that has no basis in the Constitution.  It could be eliminated, if the majority party so chose.  It has seen a lot of modification over the years, being nixed for judicial nominations, including Supreme Court nominees.  If no one is willing to carry on the debate, then it should just be a matter of calling for the vote.  The filibustering party should be required to talk the issue to death, which takes really commitment.

Debate or vote.

Filibuster Folly

On Thursday, Majority Leader McConnell invoked the 'nuclear option' - also called the Reid Rule - to rewrite senate rules to overcome the filibuster of Judge Neil Gorsuch.  When put to a vote, he won confirmation by 54-45.  The Republicans have a 52-48 majority in the Senate.  This incident is supposedly evidence that Republicans are wrecking the traditions of the Senate.  Hmm.

 

In 1991, the Democrats held a majority of 55 to 45 seats in the Senate.  In that same year, Clarence Thomas was confirmed to the Supreme Court by a vote of 52-48.  By current standards, Thomas was far outside the 'mainstream' of judicial thought.  How did he get confirmed?

For the entire history of the Senate, judicial nominations were not considered to be subject to the filibuster with the possible exception of Abe Fortas who had some ethics issues that sank his elevation from a Supreme Court Justice to Chief Justice.  However, in 2003, the Democrats decided to filibuster judicial nominees.  They used the filibuster to defeat about ten of George W. Bush's judicial nominees.  This was payback for when the Republican-controlled Senate had bottled several times that many Clinton nominees in committee, never even allowing them to come to a floor vote.  But then the Republicans were getting payback for the smear job against Thomas and the 'borking' of Robert Bork.

 

This growing tit for tat exercise first saw some rollback when the Democrats again took control of the Senate and got sick of Republicans using the filibuster against Obama's nominees.  Though the Republicans had flirted with the idea of a nuclear option when they controlled the Senate, the Democrats used it.  The rules were rewritten so that only Supreme Court nominees could be filibustered.  Now the Republicans have completed the process by removing that last case and returning the Advice & Consent function back to where it was prior to 2003.  Oh the humanity!

 

The filibuster should be returned to its pre-1970 status where a senator had to speak for hours on end to hold up legislation.  Why have a cloture vote to end debate when no one is debating?  It is amazing how much use the filibuster has seen in the wake of that rule.

Ending the Filibuster?

Senator Schumer has announced his intention to filibuster Judge Neil Gorsuch's nomination to the Supreme Court.  This will trigger the Reid option where the Republicans will change the rules in much the way the Harry Reid did when the Democrats controlled the Senate and approve Gorsuch on a 52 to 48 vote.  Interestingly, Gorsuch was unanimously approved by the Senate for his current post on the Tenth Circuit.  Repeatedly, Gorsuch has said that his job is to apply the laws that Congress passed and Senator Schumer finds that to be a conservative ideology.

If McConnell has a spine (questionable), the Reid option will forever nix the filibuster on nominees.  As noted in a previous blog, I hold that nominees whose term will exceed that of the president who nominates them should meet a higher bar but those who leave with him should be approved by a simple majority.  Sadly, the parties don't trust each other enough to make that deal.

 

As the Senate has just become another House of Representatives who just have longer terms, the filibuster is obsolete.  Senators represent their party rather than their state government.  Where senators once viewed the state assembly and governor as their superiors, now they look down upon them as inferiors.  Rightly so under the current election scheme.  In fact, since senators are popularly elected, Democratic senators represent 177 million people while Republican senators only represent 143 million people.  The Independents (Bernie Sanders and Angus King) represent a million people but caucus with the Democrats.  In the 5 most populous states, Democrats outnumber Republicans by 7 to 3.  In the 5 least populous states, that reverses with Republicans having the 7 to 3 majority.

 

It has been a century since the 17th Amendment broke the Senate.  The traditions that had been established beforehand had kept the Senate from going off the rails immediately but those traditions have been chipped away.  The state governments can't keep them in check and the voters have little interest in doing so.  Repeal the 17th Amendment and money will flow back to the states and the federal government will soon busy itself with its enumerated powers.

 

In the meantime, it's time to continue the demolition of the filibuster that Senator Harry Reid started.  After ending it for nominations, it will start getting chipped away for legislation.  It's just a matter of time.

Presidential Nominations

In general, the Senate should rubberstamp most nominees that will only last the duration of the president's tenure.  Beyond confirming that the nominee isn't a reprobate and has a working knowledge of the agency where they will server, the Senate should approve.  The current circus atmosphere which dates back to the 80s has surely led a lot of talented people to avoid government service and the current sad state of affairs shows how well that has worked.  On the other hand, when a nominee is going to outlast the president, the Senate should be much more discerning.  Judicial nominees should get the hairy eyeball treatment.

With that in mind, I have no qualms about the filibuster being nixed for administration appointees but think it should be in full force for all lifetime appointments or nominees who will outlast the president's term.  In that formulation, it would only take 50 + the VP to confirm all the members of the administration but it would take 60 to confirm judges, the FBI Director, the Federal Reserve Chair, etc.  Sadly, it is unlikely that such will be the case any time soon.  Neither party trusts the other to respect such a rule and so dare not surrender power that the other would simply retake.

The Nuclear Option

Back when the Republicans threatened the Nuclear Option of changing Senate rules so that a simple majority could confirm nominees, Senators Barack Obama, Joe Biden, and Harry Reid were all in strenuous opposition.  Of course, they were the minority then.  The nuclear option was not exercised and the filibuster remained.  Today, the filibuster has been tossed aside.  Sure, they said it only applies to judicial (except for the Supreme Court) and executive nominations but the precedent is now set.  If the majority wants to change the rules to get its way, the majority shall change the rules.  In other words, there are no rules.

The Senate is meant to put the brakes on the more volatile House.  It is supposed to preserve the rights of the minority, which is a large part of why the supermajority filibuster exists.  The Senate has made a huge leap to being just another House of Representatives.  As I've said before, we need to repeal the 17th Amendment so that Senators are chosen by the state legislatures rather than the citizens.  Then they would protect the independence of the state rather than weakening it.  However, that is a tough sell.

As for the effects, I am ambivalent.  I think a president should get the nominees of his choice in most cases, especially those that expire with his term.  Nominations that outlive his presidency (such as judges) deserve greater scrutiny.  However, since this simple majority will apply to Republican nominees in the future, it comes out even.  Likely to get more extreme nominees this way.  Democrats will rue the day when they are no longer the majority.

Filibuster

Senator Rand Paul (Kentucky) did an old fashioned filibuster the other day to protest the Obama Administration's non-answer on drone strikes within the United States.  How did that come to pass?  A few days earlier, Senator Ted Cruz (Texas) asked Attorney General Eric Holder if the government could use a drone strike on a US Citizen who was not an imminent threat within the US.  Holder ducked and dodged and said it wouldn't be "appropriate" to use a drone strike.  There's a lot of stuff that isn't appropriate that the government does anyway, so that provides little reassurance.  Thus we have the filibuster of the CIA Director nominee to highlight the issue.

 

Here is the amazing thing: a US Senator demands that the government confirm that it would be unconstitutional to kill an American within the United States who was not currently bearing arms against the US and only one Democrat sided with him.  So, are the Democrats saying that the President should be able to target US citizens within the country?

 

Senator Graham (South Carolina) responded after the fact that the filibuster was pointless since the President obviously wasn't going to have a drone strike on a US Citizen in Kentucky or Texas.  Normally, I'd agree but, as noted, Attorney General Holder dodged the question when it was put to him.  Rather than say, "Don't be an idiot, Senator.  Clearly, it would be unconstitutional for the government to kill a citizen who didn't pose an imminent threat to the country," he talked of appropriateness and hypotheticals.  The administration fumbled an easy question and Rand Paul picked it up and scored some political points.