The DREAM Act and the 60-vote Senate
The history of the DREAM Act underscores the significance of the 60-vote Senate.
There have been various versions of the DREAM Act introduced in the Congress since 2001, with both Republican and Democratic support. One version (H.R.5281) passed the House in 2010 on a 216-198 vote, but it later died in the Senate by failing to achieve cloture 55-41 (and 4 not voting). A Senate version also made to the Senate in 2005 (S.2205) when it failed a cloture vote 52-44 (and 4 not voting). As best I can tell, all other versions of the bill died in committee in both chambers (but I may be overlooking something). However, what we can see in terms of recorded votes that there has been majority support in the congress, at times, for the bill, however the rules of the Senate have precluded passage since twice the measure failed to achieve cloture.
Now, a cloture vote does not necessarily directly reflect a given Senator’s disposition on a given piece of legislation, as sometimes a given Senator will vote differently (for any number of reasons) on cloture than they would on a final vote. Keeping that caveat in mind, this is best empirical measure of support for the bill legislatively that we have. Further, the likelihood is high that if a cloture vote can win a majority of votes (especially in the current climate in the Senate) than it is reasonable to assume it could get a majority of votes on the floor for passage (although, again, this not a 100% guarantee).
Having noted some caveats, let’s look at the numbers from.
We start with the obvious: 52% of the Senate in 2005 and 55% of the Senate in 2010 was willing to vote to proceed to a floor vote, with only 44% opposed in 2005 and 41% opposed in 2010.
If we go by states as delegations we get a plurality of state delegations supporting the bill in both years:
| 2005 | 2010 | |
| Unified yeas | 34% | 42% |
| Unified nays | 30% | 30% |
| Split yea/nay | 28% | 20% |
| Split yea/no vote | 6% | 6% |
| Split nay/no vote | 2% | 2% |
If we look at population represented as a function of Senate seats we get the following (using a simple, if not simplistic, measure of all a state’s population going to a unified delegation and splitting the population into halves otherwise):
| Percentage 2005 | Percentage 2010 | |
| Yeas | 50.84% | 61.04% |
| Nays | 40.39% | 37.50% |
| No vote | 8.77% | 1.45% |
So, we have a majority of Senators voting in favor of cloture and a plurality of states voting in favor as well as Senators representing a majority of the population (using a rough metric, yes) in favor in two separate votes (and a 3/5th super-majority in 2010).*
However, because of the rules of the Senate and the way they are being applied of late this amount of support is insufficient. And, by the way, I would not that this was not an issue of party-line votes. A number of Republicans voted in favor of cloture and a number of Democrats voted against in both years.
Still, the fundamental issue is: why should we want one portion of the legislature to function in such a fashion? Note this is not a majorly controversial bill** that would do something like plunge the country into war or amend the constitution, nor it is part of major social upheaval like legislation in the civil rights era. This isn’t even something like the budget or health car reform. And certainly his is not even the kind of legislation that would inspire an old-fashioned take-over-the-floor filibuster. This is just regular legislation that is attempting to address a real problem, but that cannot even make it to a floor vote in one chamber of the legislature because a minority of 41+ can stop any legislation they choose to stop. This is a dysfunctional institution (or, at least, a rule that lead to dysfunction).
The question becomes: what is the logic behind making legislation of this type require a super-majority just to get a floor vote ? This is regular legislation—not something extraordinary like amending the constitution. There are plenty of checks built into the system including, but not limited to, over-representation of states in the Senate, committee influence (which can amplify the power of small state delegations), the need for it to pass both chambers in identical form, and a potential presidential veto. What purpose is served, apart form obstruction and over-empowerment of a minority, in making this type of legislation (i.e., normal legislative action) to pass a super-majority hurdle?
Don’t say federalism: because the Senate is designed around federalism (e.g., California and Wyoming have the same number of votes in the Senate).
Don’t say tradition: the notion that almost any and all action in the Senate should requires 60 votes is a relatively new (roughly the last decade) phenomenon.
Don’t say “we have a republic, not a democracy” unless one can articulate what one means (i.e., one can go beyond the slogan). I will preempt the typical objection along these lines: if the argument is that we do not have majority rule in the US, see the above comments on federalism and the process in general: even a straight up majority vote in the Senate is not an exercise in majoritarianism because of the unequal representation of the states. Also: the fact that any bill must pass both chambers and overcome a potential veto are also all functions of a non-pure majoritarian system (also the fact that all legislation is subject to judicial review by the courts). Our system, even allowing for majority votes in the Senate, is far from a pure majoritarian system (and it certainly isn’t direct democracy wherein all that matters is the opinion of the population on a given matter).
One legitimate answer (although one with which I disagree) is that one prefers an obstructionist system in the true sense of conservatism (i.e., one prefers that change, even marginal change, should be difficult, and that the system should, therefore, always tilt towards conservation of the status quo). This is, I think, what a lot of people mean by “we have a republic not a democracy} even if they have never articulated their position in this manner. Of course, such a position actually has nothing to do with being a republic, per se, but oh well.
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*Indeed, in 2010 if one sums just the populations of the states with unified delegations in favor, one gets just shy of an absolute majority: 48.74%. Note: I am not making claims about actual public opinion in the states, but rather noting how many residents each Senator represents.
**Yes, I recognize that it comes some amount of controversy, but all legislation has detractors and supporters. The question becomes: why the decisions rule be that a minority of detractors trumps a majority of supporters?
Nailed it.
There is quite honestly something to be said for a system that makes changing the law difficult.
@Doug Mataconis: Two responses:
1. Symmetrical bicameralism with equal state representation in the Senate (not to mention the committee structure and a host of other factors) makes changing the law difficult without the cloture rule.
2. What is there to be said, actually (beyond platitudes), about making it this difficult to initiate needed changes?
@ Steven explain in…. ? words or less to this flat lander in Texas.
How is it we are not a Republic? I might fame it and put it on my
Garage (Ham Shack) wall. A place of important information.
AE5YA ( 70 Soon )
There is some value in a legal system that has a sense of certainty to it which a process that makes it difficult to change the law can play a role. Beyond that, it’s worth noting that there are a number of matters for which filibusters cannot be used at all, the most notable being the budget process (which makes the Senate’s failure to pass a budget in more than 3 years all the more puzzling). There might be an argument for expanding those exemptions (most certainly, I would say, to nominations and the like) but I don’t see the case for eliminating it entirely.
We’ve gone back and forth about this before, and as I’ve said previously, there is a value in preserving the rights of the minority in the Senate that I think should be maintained. Otherwise, without the filibuster, the Senate just turns into a smaller version of the House of Representatives.
@Doug Mataconis: Doug, the very structure of the Senate privileges a minority of the population, so an extra measure of it is not warranted. So, no, even eliminating the filibuster does not make the Senate into the House.
Policy-making is necessary for governance, and if the 60-vote Senate is increasingly making policy-making of the most basic sort far too difficult than is reasonable.
@Doug Mataconis:
What’s the “value” save for obstruction and maintenance of the status quo even when substantial support exists for policy change?
@Steven L. Taylor:
The value is preventing the majority from riding roughshod over the minority merely by dint of their superior numbers.
Obviously it’s a value judgment as to whether or not this is a good thing, but then again so is the belief that majorities should always get what they want.
@Steven L. Taylor:
Yes smaller states have disproprtionate representation, but without rules like the filibuster, the party in the minority would be able to do very little to get its voice heard which is essentially the issue that the minority in the House faces
@Doug Mataconis: Why should the minority party have special privileges?
I think that you are missing a very important point. For many Democrats the filibuster is a good tool because it allows them to block legislation that´s unpopular in their home-states while they don´t have to openly oppose a measure sponsored by the National Democrat Party. People like Byron Dorgan, Max Baucus , Robert Byrd and AFL-CIO were instrumental in killing the Immigration Reform of 2007. And the filibuster allowed Republicans, not Democrats, to be blamed for that failure.
The DREAM Act is a perfect trap for Republicans because it´s a very reasonable Legislation that Republicans are pressed to oppose. And both Harry Reid and Obama knows that pretty well. And they don´t even have to pass the Legislation.
I think that part of the problem is that no one is willing to tell to Americans that they have to make sacrifices, and the filibuster is a perfect symptom of that.
Steven,
Because majoritarianism is as much a threat to liberty as any other form of government?
BTW, I must confess I find the position odd from a libertarian point of view. If the fundamental unit of analysis is the individual, why prefer a set of institutions that treats some individuals as politically more powerful than others?
As noted in the post, support for minority protection is profoundly, from a philosophical point of view, conservative, as it creates obstruction and favors the status quo over change of any kind (including positive change).
@André Kenji de Sousa:
You’ve just hit on the key reason that, while it may be reformed at some point in the future (and I think it should be), the filibuster will never be eliminated completely
Steven,
Actually I would think that anything that restrains majority action is something most libertarians would be interested in preserving.
@Doug Mataconis: You are severely undercutting the degree to which symmetrical bicameralism and equal representation already accomplishes much of what you are asking for. You are substantially overestimating the degree to which we get pure majoritarianism even without the filibuster.
@Doug Mataconis:
Indeed, I think this is likely the case as well. I still think it presents philosophical problems because ultimately it, as noted, profoundly conservative as it privileges existing power structures and actors and it actually diminishes the significance of individuals.
@james: I must confess I am not sure what you are asking.
In regard to this:
We are a republic, but we are also a democracy. I am not rejecting the notion that we are a republic, I am rejecting the formulation “we are a republic, not a democracy.” I have written quite a bit on this subject–just search on the phrase at the top right or with my name and the phrase in Google.
There is a pretty important point missing here. Anthony Wiener was famous as a celebrity among liberals circles, even if he did not pass any legislation advancing their agenda. He just had to give inflammatory speeches and go to MSNBC. The same happens to Paul Ryan. He did not pass any major legislation limiting the government(In fact, he voted for Medicare Part D and for No Child Left Behind) and the only thing that he has to show is his famous Budget, that uses non realistic assumptions about the economy and discretionary spending and that has not passed and has not the minimal chance of doing that. But, even so, Ryan is a celebrity among conservatives.
When you don´t have to really pass Legislation and face the consequences for that, it´s obvious that a lot of bills are going to get filibustered.
We’ve been moving down this road incrementally since roughly the Bork hearings. The current Republican Senate minority finally took it to its logical, nuclear conclusion, deciding to deny the opposition president pretty much any legislation for his entire tenure of office in order to demonstrate that he’s incompetent and should therefore be removed. Of course, the Democrats will feel free to do the same once they’re in the same position.
James,
Indeed, the current state of the filibuster is due by and large to the hyperpartisanship that has infected Washington. I’m not sure that a few minor changes to the Rules of the Senate is going to change that in any significant respect.
Andre,
I’m not sure what your point is here. Weiner was, and Ryan is, a member of the House of Representatives which not only doesn’t have a filibuster but has a set of rules that severely limit the amount of time members can speak (something that is frankly necessary due to the size of the body)
@James Joyner:
Thank you for summarizing the current problem with such honesty and succinctness.
And I totally agree, the Dems will most likely do the same thing, especially if Romney wins.
The question then becomes, what if anything could bring us back from this edge?
@Doug Mataconis: My point is not about the filibuster, is about not having to *pass* laws to woo constituents and voters. That´s what Obama did with Immigration Reform until now.
@Steven L. Taylor: Point taken Thanks
https://www.outsidethebeltway.com/madisons-defintions-of-republic/
Stumped my toe on the words, Contemarary and Nonsence, (Bullet point One)
I shall persue more reading. Thanks James
https://www.outsidethebeltway.com/madisons-defintions-of-republic/
Stumped my Toe on the words, Contemporary and Nonsense, (Bullet point One)
I shall persue more reading. Thanks James
@Doug Mataconis: “Because majoritarianism is as much a threat to liberty as any other form of government?”
Doesn’t majority rule restrict fewer peoples liberty then minority rule by definition?
The smallest minority in the world is the individual, my friend, and the greatest threat to liberty is a majority with fewer restraints on its power. The system we have isn’t perfect, but I’ll take over any of the alternatives
The issue isn’t “hyperpartisanship.” It’s dysfunction. I personally could care less how much members of the different parties hate one another so long as it doesn’t bring the business of the legislature to a complete screeching halt. Which it has.
Also I must take issue with the “both sides do it” equivalency that has been tossed out by James Joyner. The Democrats held the majority in the Senate the last two years of Bush’s presidency, and they didn’t routinely filibuster every piece of legislation – in spite of the fact that the Republicans had not particularly observed the rules of comity in the several years preceding when they held the majority in the Senate. It’s really very convenient to forget how the Republicans did, in fact, “run roughshod” over the minority in both chambers pre-2006, including but not limited to: refusing to let members of the House minority have copies of important legislation – allowing them only brief review in a monitored room with no note-taking allowed; locking members of the House minority out of meeting rooms; holding floor votes open indefinitely to get the desired result; & etc. Given that all of those abuses didn’t lead the Democrats to immediately change the rules in the Senate upon regaining the majority, there’s less than zero indication that they would, like their Republican counterparts, behave like spoiled children by abusing the filibuster.
What the persistent “both sides do it” claims fail to take into account – besides the fact that no, both sides DON’T do it in every case – is that we have one party that has surrendered all pretense of concern for actually governing the country.
@Doug Mataconis: “The smallest minority in the world is the individual, my friend, and the greatest threat to liberty is a majority with fewer restraints…”
1 this is the basis of libertarianism, no man is truly free if he can not take freedom away from others
2 I aint your friend, chief
@Doug Mataconis said:
“Because majoritarianism is as much a threat to liberty as any other form of government?”
Well yes, Doug. There’s a lot of Gay and Lesbian people all over America who can tell you about how liberty has been curtailed by majoritarian impulse.
Rather than spending another day debating the filibuster I will simply say this.
Is the filibuster undemocratic? Yes, of course it is. And I don’t consider that a bad thing. Your mileage may vary.
@Doug Mataconis:
I’m unaware of any constitutional provision addressing fairness towards a minority political party. Probably because no such constitutional right exists.
Senators are elected to represent the citizens of a particular state, and the constitution assumes that they will represent ALL of the citizens of that state, regardless of the individual citizen’s party loyalties. It’s interesting that anyone even views this “fairness to the PARTY” as an issue; it suggests that the constitutional premise that the Senators are most beholden to the citizens of their state is another bygone in the new era of fealty to Grover Norquist, ALEC & etc., who are the constituents truly being represented in this lockstep party obstructionism. Polls show large majorities of these Senators’ actual warm, live-bodied constituents favoring actions that they are routinely filibustering, so it’s a bit ludicrous to try to make the stretch that a rules change would deprive citizens in states represented by members of the minority party of fair representation – when the representatives of those people have deprived them of it already out of loyalty to party over constituency. The constitution’s concern is that the citizens of that state – and ultimately, the state’s interests – do not suffer inferior representation as a result of a smaller population size.
The constitution could care less about guaranteeing fair or equal representation to a political party.
@Doug Mataconis:
I’m honestly puzzled by this hardcore anti-majoritarian streak. Doesn’t your position lead to a majority having its rights trampled by a minority? In what sense is that a better situation? If a majority wants to pass a law and a minority stops them, that means that MORE individuals have had their rights constrained than if the majority had been able to pass what they wanted, right?
Moreover, why are you ok with the arbitrary 3/5 number? Doesn’t tyranny of the majority just give way to tyranny of the supermajority? Why not agitate for unanimity on everything?
But even that wouldn’t be enough, under an absolutist anti-majoritarian view, would it? Because each of those senators, though they vote unanimously, may have been elected by slim margins (say each was elected 50.5-49.5). So the rights of those 49.5% of citizens are being trampled by the tyranny of unanimity, right? Why not require a supermajority for election of representatives? Or unanimity? Etc.?
Honestly, I know you’ll think I’m caricaturing here, but these things honestly puzzle me about your position.
The constitution also gives the Senate the power to establish its own rules and from the beginning the Senate organized itself in a manner that was designed to give the minority party the ability to be heard and to influence legislation in a manner far different from the way things are done in House.
Considering that the majority controls the House and, when it controls the Senate it controls the agenda it’s rather clear that most of the power is in their hands. We’ve never lived in a nation where majority rule was the only consideration. If we did, then we wouldn’t even have a Bill of Rights
@Jennifer: I don’t think JJ was making a traditional “both sides do it” argument. Rather he was suggesting that chances are the Democrats will do it when a republican is elected. And I think that’s a realistic belief, especially if that President is Romney.
If that happens, the prevailing wisdom (at least in the Senate) will be that much of Obama’s perceived “failure” will have been caused by the the Republican’s obstructionism (McConnell’s comment, a joke or not, will be seen as a political truth). Under those conditions, I have a hard time believing that the Democrats won’t be interested in payback to ensure Romney is a one term president as well.
And in fact, the only way we may see any change on this issue is if both sides get burned by it.
@Doug Mataconis: You continue to equate majority party rule with majority rule. The constitution concerns itself with protecting the rights of individual citizens from majority passions – not the rights of minority parties to always get their way.
The rules of the Senate were never set up to allow a minority party to hold all legislation hostage, and in fact until 2009 they were never used that way. Had they been used that way from the beginning, the rules would have long since been changed.
Not allowing a minority party to obstruct everything is not the same as depriving citizens in states with minority party representatives of fair representation. They have
@Doug Mataconis:
I don’t see any good argument (above or elsewhere) to support this.
In fact, it seems built on a strange assumption … that flexible law only moves in one direction. It doesn’t assume successive approximation, incremental change, and optimization.
It certainly doesn’t model “refined” law. Instead it assumes that any legislation that leaps the 60 vote barrier is perfect and can never be changed.
Obamacare?
(Put differently, public opinion swings as a pendulum, law is currently created and locked in at moments of that swing. That’s unfortunate, and not a feature.)
@Doug Mataconis:
I would agree, wholeheartedly, that there are fundamental rights that minorities (all the way to the individual) should have protected. The majority should be able to dictate my religious views, for example.
However, there is a difference between protecting rights (and as @Ralf rightly notes, majority impulses can curtail the rights of minorities-and that is a bad thing) and governing. There has to be a decision rule in place to allow basic governance and overly empowering numerical minorities (as the Senate does as an institution and as the filibuster does within the Senate itself) is not about protecting minority rights as much as it is simply protecting that status quo and creating obstruction to basic governance.
It is a mistake to conflate protection of minority rights (which is essential to democracy) and running the government in a democratic fashion. They are not the same thing, even though the word “minority” is used.
Further, when it comes to regular legislation, elections have consequences (or, at least, they should). We shouldn’t be in a situation, for example, wherein one Congress can pass the PPACA and then it is essentially impossible to change it, even if public opinion suggests that it wants it changed.
@Doug Mataconis, @Steven L. Taylor:
The architects of the Constitution expected the courts to protect minorities in momentous situations, and did not expect or plan for every single vote in congress to be a test.
You are an ideologue, Doug. For you every single law does present a test on limits of government.
And sadly that makes for bad government.
@Doug Mataconis:
Yes, and that’s part of my point. There is an important distinction to be made between protection of basic rights that should not be subject to majoritarian impulses and daily governance.
Further, as I continually point out, the notion of protecting fundamental rights is inherent to democratic governance worldwide, even in countries with far more majoritarian polocy-making processes. Still, I will restate: these are actually two different issues: fundamental rights and daily governance. As long as daily governance does not impinge on fundamental rights, why shouldn’t daily governance be based on majority rule?
(It’s a pattern we’ve noticed, that proponents of small government prefer bad government until that time.)
@john personna:
Indeed. Like I said: there is a key distinction between fundamental rights that require special minority protection and daily policy decisions for which majority rule (with a variety of institutional constraints in place) is a reasonable process.
@Steven L. Taylor:
Though, I was seconds faster 😉
I think James Joyner got it about right in his comments yesterday. The current filibuster “crisis,” if that is what one wishes to call it, isn’t a reflection of something institutionally wrong with the Senate, it’s a reflection of our political culture. Changing a few rules around, which in all honesty is unlikely to happen anyway, isn’t going to do very much to address the underlying causes of what some refer to as Congressional “dysfunction.”
And, no, I don’t have the answer to the question “What will fix it?”
@Doug Mataconis:
I think you’re ignoring the myriad ways in which Steven has been showing that the filibuster IS a problem. Yes, that problem has been exacerbated by our contemporary political culture, but absent a compelling reason to preserve the filibuster, knowing that it can be subject to such obstructionist abuses is good enough rationale for getting rid of it.
@Doug Mataconis:
Why do we bend over backwards to excuse Congress themselves?
Was the Senate supposed to be a reflection of popular culture?
This is a situation of congressmen behaving badly, and rule changes would fix it. Though, they could fix it themselves just by taking legislation more seriously. They could take their role more seriously. Rather than say, posturing that the President should introduce better laws.
John,
The Senate, like the House, is elected by the people. It strikes me as rather inevitable that it would come to reflect the political (not popular) culture as a whole.
@Doug Mataconis:
But the Senate does not proportionally represent the people. The Senate disproportionately, for instance, represents Wyoming’s culture, relative to Wyoming’s population share (.17% of the population, 2% of the Senate; that is, Wyoming is 12 times more represented than its population would indicate).
@Doug Mataconis:
What will fix it is booting out elected officials who are more concerned with holding power than they are with governing, which of course is the root of the dysfunction and, as Mitch McConnell said himself, has been the guiding principle of Republicans in Congress for the past 3 – 1/2 years.
Short of that, it would be helpful if the business of the country was not routinely held hostage by a group of Senators who represent only 35% of its citizens.
@Doug Mataconis:
You seem to be championing bad government again, Doug. As say, that is a frequent strategy by those small government advocates who want to force a false dichotomy.
Good government is actually a choice, and it should not be seen as an enemy of small government, or conservatism.
You probably feel it differently. Every successful program is an endorsement of a new program, and so success is the enemy.
@Doug Mataconis:
You lose me here.
Get rid of the filibuster and let legislators legislate.
If the voters don’t like the legislation produced, they can vote in a legislature with a different policy orientation. At the moment neither party has to fully take responsibility. At the moment the majority party can’t be held fully responsible because they can claim, correctly, obstruction and the minority party can tell their base how good they have been at obstructing.
How is this good?
Does getting rid of the filibuster solve every problem in Washington, no. Does it fix the problem of obstructionism for obstructionism’s sake? Yes.
@Steven L. Taylor:
Doug never argues that it’s good. He argues that it is the fate we must suffer … until such time as Government is dismantled.
@Doug Mataconis:
This is an ironic statement, given that you are arguing for the ability of a minority of that elected body to control it.
Which is it: the Senate should represent the people or the Senate should represent the minority of the people?
Steven,
But we aren’t going to get rid of the filibuster. Certainly not under current political conditions and most likely not ever because, as we saw when people like Ezra Klein were pushing the Democrats to do just that after the 2010 elections, the party in the majority doesn’t want to give up a tool it will be able to use when its in the minority.
Additionally, even without the filibuster, there are any number of ways that the current hyperpartistan can and does cause problems on Capitol Hill
@Doug Mataconis:
Perhaps not. but you are not just arguing its inevitability, you are arguing that it serves a useful purpose.
I actually do think that there is a chance that it goes away (or is significantly reformed at some point) but that this requires public education–which I why I engage in these conversations in the first place.
Yes, but that is not an argument for or against filibuster reform. That is just saying, “don’t pay attention to the fire in front of you, because several more are burning down the street.”
@Doug Mataconis: The fact that hyperpartisanship causes other problems on Capitol Hill is not much of an excuse in favor of not limiting its ill effects where we can. I’ll say it again: I don’t care how much they hate each other, as long as the business of the country still gets done. I’d wager that something like 75% of the citizenry agrees with me on that.
To bring this back to the specific topic of the post: how is the public good or fundamental minority rights being protected by requiring 60 votes on the DREAM Act?
@Jennifer: Indeed. As Henry Droop (mathematician and political theorist) said in the mid-to-late 1860s: ” in fact, a large proportion of the electors who vote for the candidates of the one party or the other really care much more about the country being honestly and wisely governed than about the particular points at issue between the two parties”
@Steven L. Taylor:
Since I supported the DREAM Act I can’t say I was happy with the filibuster in that particular case, but one bad vote doesn’t strike me as sufficient reason to get rid of (as opposed to reform, which is a different topic) the filibuster entirely.
@Doug Mataconis: Yes, but that wasn’t the question I asked. I am trying to connect your theoretical argument in favor of the filibuster to actual governance. And I didn’t ask if the DREAM Act failure means we should get rid of the filibuster, I asked:
This is a question that can be extrapolated out to any number of piece of regular legislation. The answer to the question for the DREAM Act and the other pieces of legislation may, however, sum to an argument to get rid of the filibuster.
@Doug Mataconis:
Are you claiming that one bad vote is the only negative consequence of the filibuster?
Steven,
Again, as I said, in general I believe the filibuster serves a proper purpose in a government that was never intended to allow political majorities to achieve everything they wanted easily to begin with. Like any institution designed by human beings, it has imperfections, but I see no good reason toss it out now.
@Doug Mataconis:
So rather than refute all of the good reasons Steven has noted, you dismiss them all by saying you see no good reason? How insulting.
@Doug Mataconis: That’s odd, because changes that the elites want seem to get through just fine.
@Doug Mataconis: There’s a wide gulf of difference between “allow(ing) political majorities to achieve everything they wanted easily” and “stopping political majorities from achieving anything” which is what abuse of the filibuster has caused.
@Doug Mataconis:
The problem with this position, as I keep trying to note, is that it ignores the fact that whole design of the federal government already achieves this feat.
To point to the filibuster as the bulwark against unbridled majoritarianism ignore two two points:
1) The aforementioned design of the federal government (not to mention the specifics of the congress and the Senate itself).
and
2) If the filibuster was so essential to the fundamental workings of the design of our system, why was it not part of the constitution itself?
Well, the answer to question 2 is that the Constitution gives the Senate and the House the authority to set their own rules. Outside of the supermajority requirements for treaty ratification, veto overrides, and Consitutional Amendments, the documents says next to nothing about how each body should operate.
@Doug Mataconis: It says next to nothing except that the vice-president gets to cast a tie-breaking vote; in other words, it presumes that a 50% + 1 majority will prevail.
Jennifer,
No it doesn’t. If the Founders had wanted to ensure that, they would have said so in the text of the document
@Doug Mataconis:
This dodges Steven’s question. If the filibuster is so important to the protection of the Republic, why did the founders not include it in the constitution itself?
@Doug Mataconis:
She doesn’t say that the document precludes anything but a 50%+1 majority; rather, she says that the document clearly presumes that that’s the basis on which both houses of Congress will operate. You keep answering questions that weren’t quite asked.
@Doug Mataconis: Maybe the Founders presumed that people reading the document would be reasonable.
Or are you now going to assert that the very clear directive that “The Vice President of the United States shall be President of the Senate, but shall have no vote, unless they be equally divided” presumes a super-majority requirement for passage of any legislation? If that’s the case, it’s hard to see why they bothered with including Article 1, Section 3.4.
There is nothing in the Constitution that precludes the filibuster any assertion to the contrary is simply not true.
@Doug Mataconis:
And if you could point out where anybody was arguing that, I’d give you a shiny nickel.
Jennifer sure seems obsessed with the idea that the filibuster is extra-constitutional.
In any case, I’ve said my peace on this issue repeatedly here in the comments and in numerous posts over the last two years. Not sure there’s any point in arguing any more.
@Doug Mataconis:
Actually, that’s not an answer to number 2. I don’t dispute that the Senate can set its own rules under the constitution, but that wasn’t the issue. Indeed, if the Senate wanted to set a rule that required unanimity, that would be constitutionally permissible as well.
However, that’s not what i asked. Again:
You are arguing above that the filibuster is necessary to maintain the design of our government. I am pointing out that a) there are already a lot of provisions that stop pure majoritarianism and b) that if the filibuster was central to the design of the constitution, then it would be in the constitution.
Fair enough, but it would be nice if you are going to engage in arguments over the filibuster that you actually engage the arguments being made. If you want to just say that you accept it, well then, I guess there is nothing to discuss, unfortunately.
@Doug Mataconis: As Fargus noted, nothing of the sort has been said. It’s just been noted, perhaps inconveniently for your point of view, that there is a presumption of majority rule in the Senate written right there into the constitution.
@Doug Mataconis:
The filibuster originated in the Senate because in 1805 (16 years after the first Congress convened) Vice President Aaron Burr successfully argued that U.S. Senators were all too predisposed to conciliation and comity to justify the need for a motion to reconsider. Burr was such a firm believer of collegiality that he made this argument while under indictment for murdering Alexander Hamilton in a duel. And up until 1890, the House of Representatives had its own filibuster known as the disappearing quorum.
Even if arguments from tradition were at all rational, which they aren’t, you’re still wrong on the tradition.
1805. Meaning the Founding generation.
And I didn’t say the Senate has always had the filibuster, I am well aware of history
@Doug Mataconis: BTW: to put my comment above another way: if you are going to defend the filibuster as essential, you need to address the other points being made about constitutional design.
@Doug Mataconis:
Of the 26 Senators who served in the 1st Congress only one, Pierce Butler of South Carolina, served in the 8th. The 1st Senate had a proto-Federalist majority, the 8th had a Democratic-Republican majority. Apportionment of the 1st Congress was derived from the 1st U.S. Census, the 8th from the 2nd U.S. Census.
@Doug Mataconis:
Not what was meant at all. Yes, it was the founding generation, but nobody consciously created the filibuster. It was an accident and wasn’t used until 30+ years after it was made possible.
You think you’ve made a point Sly? You really haven’t.
There’s really no point in continuing this argument. The anti-filibuster crowd has made its point clear. What they haven’t explained is how they ever think the filibuster will be eliminated. I’m willing to bet it won’t happen anytime in the next 25 years at least.
@Doug Mataconis:
And yet, you have not actually addressed the arguments made,nor have you actually made a cogent argument in favor.
@Doug Mataconis:
For someone who so often argues everything from ideological first principles, your insistence that your interlocutors provide a detailed rubric of institutional change is puzzling.
Fargus,
I don’t think its unrealistic. We can have long discussions about all kinds of changes that could be made to the way our government works, but unless there’s some idea about how that could realistically be accomplished the entire discussion becomes academic at some point.
Steven,
I believe I have but when people are approaching the argument from fundamentally different positions I’m not sure any answer would be satisfactory. For example, I don’t necessarily accept the idea that the goal in designing a government should be things like efficiency or what makes lawmaking easiest.
@Doug Mataconis:
You’ve made the claim that the Senate was established with certain rules (i.e. the filibuster) to protect the interest of the minority party. The Senate was established in an era when political parties didn’t even exist. It was added 16 years later, by an almost completely different Senate, because the presiding officer (who shot and killed a political rival a year earlier) deemed the motion to reconsider unnecessary given how much respect and deference American statesman regularly displayed toward each other.
You additionally claim that this makes it unique from the House of Representatives, when the history of the House rules showed that it too provided ample means for the minority to obstruct. Means that have since been eliminated.
Arguments from tradition are silly, especially when you’re wrong about the tradition. Traditions can become maladaptive and, when that occurs, they should be changed or abolished.
@Jennifer: So long as the business gets done the way I want it done…then yes…75 percent of us agree with you!
I don’t see where Steven, or anyone else in the comments, made that argument.
@Doug Mataconis:
I disagree. You could address my points about constitutional design of the legislature and the way it functions regardless of other issue. You have not done so. Instead, you have focused solely on the anti-majoritarian aspects of the filibuster without considering the way the system would work without it. I find it difficult to take your pro-filibuster arguments seriously when you will not address the degree to which bicameralism, the design of the Senate itself, and separation of powers already mitigate against pure majoritarianism.
The primary argument against the filibuster appears to be that it leads to inefficiency in the legislature and blocks legislation that might otherwise have majority support
@Doug Mataconis:
@Steven L. Taylor:
Or why the filibuster satisfies his anti-majoritarian preference while the anti-majoritarian features of the legislature “baked in” to the institution(s) do not.
@Doug Mataconis:
No. The primary argument against the filibuster is that it undermines the legitimacy of a government by making it less accountable to the electorate that creates it.
@Sly:
On point one, this is what I was saying in my first comment in this thread. If anti-majoritarianism is the name of the game, why is the arbitrary 3/5 requirement enough to satisfy it? Why not a 2/3 requirement? Why not 4/5? Why not unanimity? Why is it decided that this particular threshold of difficulty in lawmaking is just right, but any other would represent majoritarian tyranny?
On point two, I’d argue it from a slightly different angle: the filibuster obfuscates who’s really in the driver’s seat. It empowers a minority to block legislation and then have the public hold the majority accountable for the gridlock. It makes obstructionism not principled, but painless.
Fargus,
Because that’s the number that has been in the rule since about 1974. Before that, it would take as many as 67 votes to break a filibuster
Doug,
I know the history of the filibuster, and that’s not the question I asked. Was the 67 vote filibuster an undue constraint on the majority, such that the 60 vote threshold was a necessary correction? Or was the 67 vote filibuster perfect, such that the 60 vote threshold represented a horrible drift toward the tyranny of the majority?
@James Joyner:
Unless, of course, Republicans win the presidency and control of the senate, and then abolish the filibuster via majority vote at the start of the session or the “nuclear option,” or something similar.
@James Joyner: I find it very hard to believe Republicans would let the filibuster continue to exist if it stood in their way. Look at the judges showdown in 2005 and the whole “Gang of 14” nonsense-they were more than prepared to unilaterally abolish the filibuster to get the judges they wanted appointed. If in 2013 we have a President Romney and a Senate with a Republican minority and the Democrats try and obstruct, Vice President Rubio or Ryan or Portman will nuke the filibuster.
One thing not talked about is Republican political tactics and strategy-it’s an uncompromising, all-or-nothing approach. Republicans are blocking the DREAM Act because they want to prevent Obama from having any minor achievement with regards to immigration so he looks weak in the eyes of Hispanic voters, a key voting block for him. As the years go by, Republicans have adopted a more uncompromising approach to all issues. Sometimes this works-prevent Obama from passing meaningful economic legislation and you create an environment where Democrats loose the House big time. Sometimes it doesn’t-assuming the Supreme Court doesn’t strike down health care, people will expect the government to provide some form of assistance when it comes to health care, thanks to “Obamacare.”
The Republican use of the filibuster is not some high-minded principle about the nature of government-it’s a political tactic to prevent a Democratic President from passing legislation through. If the tables were turned, Republicans would gladly abolish the filibuster, plain and simple.
Moreover, Doug, there’s more to the filibuster than the 60 vote requirement. Even when more than 60 votes are there, all it takes is one lone senator to withhold unanimous consent and force the Senate to go through the entire cloture process, which gums up the works of the Senate sometimes for days and days (and there can be multiple cloture motions required on one bill or appointment). This has absolutely NOTHING to do with protection of minority rights, whether the minority we’re talking about is a political one or a minority group of citizens.
Beyond that, let’s take a second to savor the irony of the filibuster being defended as a bulwark to shore up minority rights when the most infamous use of the filibuster was by a white supremacist opposing the Civil Rights Act.
@Doug Mataconis:
Doug,
I don’t read a whole lot of the threads on OTB, but I’ve noticed that in at least two of them (this one and the one about Romney’s bullying wherein Michael Reynolds utterly destroyed your argument) you seem entirely capable of admitting your position on an issue is meritless. I imagine that in the quick back-and-forth that takes place in public blogging it’s not easy to acknowledge that someone else is both right and has made the clearly more compelling argument, but you do the readers and your own credibility a great disservice by being obstinate.
OTB is one of the rare sites on the internet where one can find reasonable arguments that coincide with GOP interests. Very frequently your own writings are a contribution in that regard. It would be a shame to permit one’s pride to interfere with the quality of discussion that takes place here.
@Fargus:
Because this is the demonstrated level at which legislation that conflicts with one’s own partisan interests can be blocked. Everything else is sophistry.
Or, as PZ noted: “The Republican use of the filibuster is not some high-minded principle about the nature of government-it’s a political tactic to prevent a Democratic President from passing legislation through.”
This is essentially what I was getting at. It is hard to hold an institution accountable when the question of who controls it is unclear.
The role of the High Chamber of the Parliament is not to represent minorities, but to be a Elite based chamber that serves as a counterpoint to the Lower House of the Parliament(That´s why many countries have seats in the Senate that arent based on states/provinces/departments/regions. In Mexico, there are seats that are elected in national level, in Italy former presidents have a seat in the Senate). More or less, the Senate serve as a check and balance to the House of Representativas, precisely because the Senate is less dependent on the wills of the population. For instance,it was the Senate that killed the flag burning amendment in the 80´s.
The filibuster is a good tool in this role, because it can be used by a minority of Senators to block bad legislation that someone wants to force the Congress to pass. On the other hand, a virtual 60% threshold on any nomination or legislation is another issue.
i am, as usual, at a loss here. doug’s arguments aren’t particularly strong, but they are at least actually MADE. i mean, i get where he’s coming from, and though he doesn’t do much to articulate it and it is fundamentally antithetical to his allegedly defining libertarian ethos, whatevs. better than what i read on other right-leaning sites, that’s for sure.
but someone has to explain james joyner to me. can one possibly still believe, in the face of all available statistical and anecdotal evidence that this is a “both sides do it” problem? there is simply no way that i can fathom how a person who writes seriously for serious people can do this sort of thing. i’m not going to enumerate here how many ways this is a republican rather than a bi-partisan problem, and how absurd it is to think that democrats have the spine to do unto others…
so the question: does james know he has his thumb on the scale, or is he simply some kind of automaton programmed to say “both sides do it” over and over?
i’m guessing he knows, and he doesn’t care. sad.
Surprise, surprise: Republican Doug Mataconis supports undemocratic Senate procedure which has been helpful in advancing Republican policy goals.
@Doug Mataconis: Please note that, with a fillbuster-free Senate, the US government would still be rather non-majoritarian.
As Steven has pointed out, repeatedly.
@Steven L. Taylor: “I still think it presents philosophical problems because ultimately it, as noted, profoundly conservative as it privileges existing power structures and actors and it actually diminishes the significance of individuals. ”
I would say ‘profoundly right-wing’, because (as I’ve said before), the elites seem to have magic keys to unlock the checks and balances.
@James Joyner: “We’ve been moving down this road incrementally since roughly the Bork hearings. ”
This is a lie. Bork was a criminal, who aided and abetted Nixon by obstruction of justice.
He should have been given a long stretch in prison.
The fact that the Senate turned him down was a good thing, from both my partisan viewpoint, and the viewpoint of those who feel that the proper reward for serious crimes is not to be appointed one of the supreme judges in the land.
@Doug Mataconis: Indeed, the current state of the filibuster is due by and large to the hyperpartisanship that has infected Washington. ”
Ah, ‘hyperpartisanship’. Not ‘a deliberate attempt by the GOP to trash the country’.
@mattb: “And I totally agree, the Dems will most likely do the same thing, especially if Romney wins.”
Considering that they did not do that, even in 2007-08, when Bush’s popularity was in the toilet, I think that this is Freudian projection.
@Doug Mataconis: Doug, perhaps you could try winning the argument, rather than tossing out slogans.
@Robert Green: Again, James was not saying “both sides do it” — at least not in the same way that Doug did. Reread his post…
@Barry:
Past actions are not proof of future actions. Reread what I wrote, especially this part:
James point was that the Republicans will have proven that you can defeat a president through using the filibuster to grind the government to a halt. If you honestly think the Democrats won’t use the same strategy (in part as pay back and in part to try and win back the White House in 2016) I think you’re probably being an idealist. Not to mention that I expect the progressive base will strongly advocate for using this technique as well.
Just to be clear on James and “both sides do it.” He attempted to trace a history of this tactic. And from that perspective Bork is a good place to start a modern history. But you all seem to miss the key thing he wrote:
It’s clear that he’s hanging the blame for the current situation on the Republicans. That said, to pretend that the Dems had nothing to do with this is ridiculous.
“Both sides do it” does not mean that “both sides do it equally.” That’s typically Doug’s gaffe, but not one that James usually makes. And he didn’t do it here.
@Barry: Oh, another point which is – well, dishonest.
Bork got his up-or-down vote with the full Senate.
He lost.
The debate here is about methods to prevent up-or-down votes from ever being held.
You’re equating the two things, and should really know better.
@mattb: “Past actions are not proof of future actions. Reread what I wrote, especially this part:”
Where is your evidence?
You’re expressing an opinion, for which there is not positive evidence, and some negative evidence.
Second, “The current Republican Senate minority finally took it to its logical, nuclear conclusion, deciding to deny the opposition president pretty much any legislation for his entire tenure of office in order to demonstrate that he’s incompetent and should therefore be removed.”
The who d*mn point of this post and comments thread is that instead of having full votes, the Republicans have taken the idea of not allowing votes to the extreme.
Please note that Bork got his up-or-down vote in the full Senate.
James is conflating two rather different things.
@mattb: “It’s clear that he’s hanging the blame for the current situation on the Republicans. That said, to pretend that the Dems had nothing to do with this is ridiculous.”
Again, evidence?
@mattb: “If you honestly think the Democrats won’t use the same strategy (in part as pay back and in part to try and win back the White House in 2016) I think you’re probably being an idealist.”
That’s not evidence, either.
@Barry: Sigh…
The use of the Senatorial Procedures by Kennedy to immediately block the vote on Bork was a brilliant piece of politics. It was also well remember (and we have multiple oral sources for this) by Republicans as a tactic that they would use in the future.
Additionally, in the last few years of GWB’s administration there was a marked increase in cloture votes, continuing a general trend that began under Clinton and then spiked beginning with the Democratic Takeover in 2008 and continued to rise under Obama. (source: http://en.wikipedia.org/wiki/File:Cloture_Voting,_U.S._Senate,_1947_to_2008.jpg)
Looking at the graph I would argue that the number of votes were artificially low from 2001-2004 due to the events of 9/11 and the view of rallying behind the president.
You are entirely correct that we do not know what the future will bring. But any attempt to try and pretend that the Democrats did not play a role (I’m not assigning equal blame here) is, in my opinion, rank and unhelpful partisanship at best.
I don’t want to see a Romney presidency or the current Republican party come to control both houses of Congress. But should either pass, I think my version of what will most likely happen is far more likely than yours. Hopefully we won’t have to find out.
@mattb: I rescind part of my previous comment. I had been under the mistaken understanding that in addition of Kennedy’s speech, he took other direct action to delay the vote. After some additional research I found that to be an incorrect understanding. My apologies @Barry — Bork might be a good moment to chose for the start of the hyper-politicization of the Senate, but not necessarily for the use of Senate procedures to delay or outright block legislation.
All that said, for reasons laid out above, I still support James’ general arugment.
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@mattb: “I rescind part of my previous comment. I had been under the mistaken understanding that in addition of Kennedy’s speech, he took other direct action to delay the vote. After some additional research I found that to be an incorrect understanding. My apologies @Barry — Bork might be a good moment to chose for the start of the hyper-politicization of the Senate, but not necessarily for the use of Senate procedures to delay or outright block legislation.”
Thanks. I was confused by what you were saying.
I would disagree with the ‘start of the hyper-politicization of the Senate’. Bork was an extraordinarily bad candidate. His political positions were at the far end of the spectrum, *and* he was one of Nixon’s prime henchmen, and a criminal. In addition, his crimes were aimed at Congress – Congress had pushed for an independent investigator, and Bork was the man who shut him down. Note – at this point Congress was left with only two real choices, to back down, (albeit with fuss and noise) or to impeach.
Related to Bork, I’m curious if there’s any feel for the quality of the nominees (in general) under Bush and Obama. I recollect Bush appointing some bad, partisan people to various posts (GSA, FEMA); was that the norm? It might not be fair to compare filibusters under the different admins as if the nominees were all equal.
To understand how certain political systems work we need to understand the underlying reasons as to their effect. In this sense filibusters are used by a minority to further oppress a smaller minority. Those who support such system as guilty as those who support discrimination.
@Barry:
Regardless of how good or bad a candidate Bork was, I think the issue (and the start of the hyperpartisanship) was how the Democrats, and Kennedy in particular, mounted their attack. A good “oral” history of the issue (using comments from the time and then later reminiscences) appeared in the times after Kennedy’s death:
http://opinionator.blogs.nytimes.com/2009/08/28/weekend-opinionator-kennedy-bork-and-the-politics-of-judicial-destruction/
@Barry: @mattb: Plus, in evaluating the Bork hearings in terms of political significance, I think we have to take into consideration subjective perception. Right or wrong, the Bork hearings were perceived by conseveratives in a very specific way (and they saw them as unjust). There is a narrative that still persists of Bork the scholar being rejected solely on ideological grounds and nothing more.
I note this, btw, as one who used to look at the situation in that light but over the years have come to be glad that Bork was not confirmed. (And my views on that started well before I moved away from the GOP–it happened when I read one of Bork’s books). Further, a lot of people (esp of a certain age) are less tuned in to (if not ignorant) of the Nixon connections.
Regardless, in evaluating the Bork hearings, I think we have to take into consideration the myth as much as the reality.
(And having said that, I am not sure that we can directly link the routine filibustering of regular legislation to the Bork hearings).
@Steven L. Taylor: “Right or wrong, the Bork hearings were perceived by conseveratives in a very specific way (and they saw them as unjust). There is a narrative that still persists of Bork the scholar being rejected solely on ideological grounds and nothing more.”
My point is that their view was and is a stark, staring lie. They felt that a criminal henchman of Nixon with bizarre ideas was *owed* a lifetime appointment to the highest court in the land, and that denying him this was itself a criminal and evil act. And then they add more lies onto the story, as we saw with James here, who analogized getting an up-or-down vote with not getting one, in 100% opposition to the truth.
And I believed the right’s lies about Bork, back before I learned about things like the Saturday Night Massacre (and how whackjob he was).
@Steven L. Taylor: “Regardless, in evaluating the Bork hearings, I think we have to take into consideration the myth as much as the reality.”
You seem to be saying that because Republicans choose to believe in fairy tales, we have to accept their nonsense stories as equal to, say, the Democrats’ adherence to factual history. So that it becomes just as true that Reagan would never raise taxes as that he did.
This does not sound like your usual way of looking at the world, but I’m having a hard time understanding your post in any other way than “since the Republicans choose to nurse an imaginary wound, we must treat that hurt as a real justification for the polarization in Washington.”
@wr:
No, I am talking about understanding behavior, and in understanding behavior you have to take into consideration perceptions.
And, you will note, I dismiss the notion that the Bork hearings are the fount of hyperpartisan behavior in the Senate.
@Barry: All fair enough. My point is that there are two distinct issues: 1) an objective discussion of Bork as a candidate (and I agree, btw, that his involvement in Watergate really should have precluded his appointment), and 2) the way the Bork hearings are perceived and acted upon by many on the conservative side (who treat the whole thing as an article of faith that he was wronged).
On point #2 I am getting at explaining behavior but I am not attempting to justify.