I was wondering what your thoughts are about the whole filibuster issue. Filibusters are supposed to be for specific things where judicial appointments are supposed to be an up or down vote, not some sort of super majority. I’m anxious to hear Dag’s thoughts on this and to hear what Tom and KoM will say to encourage the filibusters to continue.
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posted
Oh come on Elizabeth, it’s not rude. I know Dag will have a good legal side. I know that Tom and KoM will support Byrd. How is it rude to want to hear what they’ll say? I might disagree with them on almost everything, but respect their right to have those opinions and want to hear it.
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posted
I would prefer it if filibusters actually stopped the Senate like they used to. The use of tracks makes filibusters usable without cost. I'm against that. The point of a filibuster is not to continue debate, but to halt the passage of legislation that a majority supports. Remember all those stories of Senators reading phone books during filibusters? That's not debate.
I'm in favor having a filibuster mechanism, but only if the true costs of the mechanism are implemented. Right now, something can be filibustered basically by someone saying, "I'm filibustering this." If the Senate were actually halted until a filibuster was resolved, filibusters would be used more rarely, but would have the actual debate-creating awareness-raising effect that Byrd claims they do now.
On the issue of judicial nominees, I'm in favor radically changing the way they are handled:
11 year terms for district and circuit courts, no limit on number of terms, possibly with either one automatic renomination requiring Senate confirmation or one automatic confirmation if the President renominates.
For SCOTUS, I support single terms of 17 or 23 years. The president nominates.
For all nominations, judicial and otherwise, if the Senate doesn't act within 180 days, the nominee is confirmed (kind of like when the President doesn't sign a bill but doesn't veto). Allow some automatic vote requirement around day 170 so a filibuster can't get a nominee in without a majority.
posted
See, I knew Dag would have a lot of good thoughts on this issue. And I really liked what he said. Raises a lot of good points on those issues.
Well, Adam, since I would be very surprised if Tom or KoM didn’t come out in support of Byrd I cannot see how me wanting to here their argument is rude. I’d hope they’d consider it a sign of respect for their thoughts on the subject. I apologize that you and Elizabeth have taken it the wrong way. I’d really like to hear what you think about the issue. I know you mentioned the dread of the nuclear option when the roles are reversed, but filibustering hasn’t been done before on judicial nominees. I personally think it’s a good thing to stop now before it’s totally out of control.
Dittos Lem
[ March 08, 2005, 11:12 AM: Message edited by: Jay ]
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posted
"I’m anxious to hear Dag’s thoughts on this and to hear what Tom and KoM will say to encourage the filibusters to continue."
Byrd is absolutely right.
Filibusters are an absolutely essential tool to be used by a minority to not only prevent majority passage of a highly inflammatory bill but also to publicize the majority attempt to do so. I'm perfectly okay with them being used to block nominations, and even to stall legislation if it means that there's more time for the court of public opinion to turn its attention to the issue.
They are, in fact, one of the very few tools available to marginalized representatives.
Removing them is like removing seatbelts from a car; you may find them irritating when you don't need them, but you're awfully glad you have them when there's a wreck.
Someday -- not too far in the future -- Republicans will either succeed in completely squashing dissent or will resume their position as a party that every now and again isn't in the majority. Unless they succeed in the former -- and while, with things like this proposal and some of the really ruthless redistricting going on in a number of states, they're certainly giving it their best shot, it's hardly a given -- they're going to regret stripping power from the minority when they wind up a minority again.
posted
I don't think its at all unreasonable for the total votes required, even by default, to be greater than 50%. It encourages coalition building, among several things.
So I think filibusters as they now stand do have some use. I also think filibusters in the classic sense have a (rather different) use.
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posted
As for senseless filibustering, I think it should be tolerated so long as there is not an overwhelming majority for squashing it.
Because if there is not an overwhelming majority for squashing it, it is not clearly senseless (and is in fact pretty clearly sensical to a decent number of people, at least as a political tool in the conduct of government).
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quote:I don't think its at all unreasonable for the total votes required, even by default, to be greater than 50%. It encourages coalition building, among several things.
So I think filibusters as they now stand do have some use. I also think filibusters in the classic sense have a (rather different) use.
It might not be unreasonable, but that's certainly not the government we implemented in the Constitution. If we want such a system, then we should amend the Constitution.
The cost of a filibuster must be high enough that people using it are willing to face that cost. It's an extraordinary measure and should be used for extraordinary circumstances.
quote:The problem here is who gets to define "senseless."
I agree that's the problem. So institute a political cost (the shutdown of the Senate) to limit the situations in which it is used.
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quote:The cost of a filibuster must be high enough that people using it are willing to face that cost. It's an extraordinary measure and should be used for extraordinary circumstances.
I can agree with this.
And, Tom-- like you have to ask-- I get to define senseless. Posts: 14554 | Registered: Dec 1999
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Interesting that everything, including most of Tom’s argument base, is in regards to a bill. Since this is not a bill, I really fail to see how you can use that argument.
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posted
Same principle, though. The Dems have the same duty to oppose nominees they don't like as they do to oppose bills they don't like.
The Constitution doesn't mention filibusters, but it allows the Senate to make its own rules for conducting business. Advise and consent and passing laws are both listed as senatorial duties; there's no reason a filibuster is OK for one and not the other.
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quote:In current practice, Senate rules permit procedural filibusters, in which actual continuous floor speeches are not required, although the Senate majority leader may require an actual traditional filibuster if he so chooses.
From the wikipedia link in Jay's post.
That would be my first step, and for only one of the nominees.
Regardless of my opinion on the rules, changing them using a mechanism ouside the current rules would be a gross breach of trust. It would be strategic suicide, too.
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posted
I found Byrd's essay to be pretty reasonable until this point:
quote: If we restrain debate on judges today, what will be next: the rights of the elderly to receive social security; the rights of the handicapped to be treated fairly; the rights of the poor to obtain a decent education? Will all debate soon fall before majority rule?
I hate slippery slope hyperbole.
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posted
Yeah, the "sky is falling" bit is laughable. But let's face it, he's a Senator, and I don't think aides know how to write anything without a slippery slope in it.
-----
Jay, you just linked to the Free Republic. Please don't do that. It stinks up the place.
quote:It has long been a principle of Anglo-American constitutional law that a previous legislature cannot bind a subsequent legislature. Indeed, the maxim dates all the way back to Sir William Blackstone, who cited Cicero in his Commentaries on the Laws of England for the proposition that "Acts of parliament derogatory from the power of subsequent parliaments bind not. … Because the legislature, being in truth the sovereign power, is always of equal, always of absolute authority: it acknowledges no superior upon earth, which the prior legislature must have been, if its ordinances could bind the present parliament."
The U.S. Supreme Court, likewise, has held that legislative entrenchment constitutes an unconstitutional exercise of power in a long line of cases dating all the way back to the mid-19th Century. Specifically, the High Court has ruled that "[e]very succeeding Legislature possesses the same jurisdiction and power … as its predecessors. The latter must have the same power of repeal and modification which the former had of enactment, neither more nor less. All occupy, in this respect, a footing of perfect equality. … A different result is fraught with evil." Newton v. Commissioners, 100 U.S. 548, 559 (1880). Thus, it is far from surprising that, according to the Supreme Court, "the will of a particular Congress … does not impose itself upon those that follow in succeeding years." Reichelderfer v. Quinn, 287 U.S. 315, 318 (1932).
This constitutional principle against legislative entrenchment has both theoretical and practical implications for Standing Rule XXII.
On the theoretical level, the cloture rule is presumptively unconstitutional, as outlined in a Stanford Law Review article authored by Professors Erwin Chemerinsky and Catherine Fisk, of the University of Southern California and Loyola Law Schools, respectively. See Erwin Chemerinsky & Catherine Fisk, The Filibuster, 49 Stan. L. Rev. 181 (1997).
According to Professors Chemerinsky and Fisk, "The conclusion that emerges is clear: laws and rules that restrict changes by future legislatures are unconstitutional. This view has been followed by the Supreme Court throughout American history and it is supported by compelling arguments. As such, Rule XXII is unconstitutional in requiring that any revision be by a two-thirds margin."
Their conclusion is bolstered not only by the same long line of Supreme Court cases, but also by the text of the U.S. Constitution itself, which explicitly sets forth only seven instances in which supermajority votes are necessary for the federal legislature to act and states that the "Vice President of the United States" shall break ties in the Senate when "they be equally divided."
The clear import of these provisions is that Congressional action, in both the House and Senate, is to be by simple majority, except in the seven instances specifically listed in the Constitution. After all, according to the canon of construction expressio unius est exclusio alterius, or literally "inclusion of one is the exclusion of all others," the enumeration of one thing in the Constitution implies the exclusion of another.
On the practical front, the constitutional rule against legislative entrenchment means that it must be possible for the current Senate to amend, repeal, or ratify Standing Rule XXII by a simple majority vote of the body. According to Professors Chemerinsky and Fisk, "The effect of declaring [legislative entrenchment] unconstitutional is that the current Senate could change Rule XXII by majority vote. In other words, a majority of this Senate could eliminate the filibuster if a majority wished to do so."
This is the so-called "nuclear option."
The way this procedural maneuver would work — as it did in 1975 — would be that, at the time of a cloture vote to end debate, the Senate majority would secure a ruling from the chair that Standing Rule XXII does not apply. The chair, likely the Vice President, would probably agree and rule in favor of the majority. The issue would then be brought to a vote, and the minority, probably through the Minority Leader, would note that the issue is debatable and, hence, also subject to a filibuster.
The parliamentarian, relying on Senate precedent, would agree. The chair would then recognize a non-debatable motion to table. At this point, the majority could overrule the anti-majoritarian precedent, uphold the ruling of the chair, and proceed to a final yea-or-nay vote on the original question by securing a simple majority vote in favor of the motion to table.
If all that seems complex, it is. But the basic import of such procedural maneuvering is that a simple majority of the current Senate can force a change in Rule XXII to reduce the supermajoritarian cloture requirement, thus making it possible to end debate by simple majority vote.
The article is advocating for a particular side, but the constitutional analysis is sound.
Filibuster/cloture rules are nothing less than a friendly agreement, with no legal force.
Dagonee P.S., If I could find a free link to the law review article, I'd post it.
posted
"Filibuster/cloture rules are nothing less than a friendly agreement, with no legal force."
*nod* One of the particularly interesting things the Republicans have been doing over the last four years has been their rather systematic dismantling of traditional friendly agreements.
I've said it before, and I'll say it again: the Dems were caught with their pants down. They brought a handshake to a knife fight.
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quote: ... Filibusters are ubiquitous but virtually invisible, for the contemporary Senate practice does not require a senator to hold the floor to filibuster; senators filibuster simply by indicating to the Senate leadership that they intend to do so. ... The only way the Senate can vote on any filibusterable issue over the objection of even a single senator is to obtain cloture (an end of debate) under Senate Rule XXII, which requires the votes of sixty senators. ... Critics commonly claim that the filibuster thwarts majority rule. ... Is Senate Rule XXII unconstitutional in requiring that there be a three-fifths vote of the Senate to close debate on a pending matter? The second constitutional issue is more subtle: Is it unconstitutional for the Senate to follow a procedure whereby a two-thirds vote is required to change Senate Rule XXII? If this requirement is unconstitutional, then a majority vote would be sufficient to change Rule XXII and the Senate could modify or even eliminate the filibuster. ... The senator could argue that her future vote on the legislation effectively had been nullified by the filibuster and that this is a basis for standing. ... Rule XXII thus would be unconstitutional in that it requires a supermajority of sixty votes to end debate and in practical effect requires sixty votes to adopt legislation any time there is a filibuster. ...
TEXT: [*181]
The filibuster in the United States Senate imposes an effective supermajority requirement for the enactment of most legislation because sixty votes are required to bring a measure to a vote over the objection of any senator. Filibusters are ubiquitous but virtually invisible, for the contemporary Senate practice does not require a senator to hold the floor to filibuster; senators filibuster simply by indicating to the Senate leadership that they intend to do so. The prevalence and invisibility of this "stealth filibuster" dramatically affects which legislation is passed and which nominees are confirmed. The stealth filibuster also raises serious constitutional questions. Summarizing the historical development of Senate filibusters, Professors Fisk and Chemerinsky show that the nature and effects of filibusters have changed significantly as the Senate has grown larger and busier. They argue that, although dilatory debate has a history, the modern stealth filibuster is in significant respects unprecedented. Professors Chemerinsky and Fisk also assess the effects of the filibuster on Senate practice in light of empirical and public choice theories of congressional behavior. Based on this, they conclude that the filibuster is not alone among congressional procedures in being antimajoritarian and that it may counteract the antimajoritarian aspects of other congressional procedures. Professors Fisk and Chemerinsky then discuss the constitutionality of the filibuster. They first conclude that a judicial challenge to the Senate rules that permit it would be justiciable if brought by proper plaintiffs. They then conclude that, although the filibuster itself is not unconstitutional, the Senate rule that prohibits a majority of a newly elected Senate from abolishing the filibuster is unconstitutional because it impermissibly entrenches the decisions of past Congresses.
quote:I've said it before, and I'll say it again: the Dems were caught with their pants down. They brought a handshake to a knife fight.
There was also a friendly agreement not to use filibusters on judicial nominees - it had only been done to the point of a cloture vote something like 15 times in the past.
They brought a knife to a handshake fight. Now the Republicans are considering breaking out a pistol. I'm against it, but it's understandable.
posted
As is noted, the senate could get rid of current filibustering practice by a majority vote. However, without that majority vote, current filibustering practice stays in place, and more than a majority is required.
It is quite possible to envision an situation (most situations, I would hope) where, for instance, a majority of people want a bill passed, but do not want to kill the option to filibuster on that bill.
This is not quite the realm of friendly agreement, it is an internal institutional check, whereby potential power is not curtailed, but the nature of the procedure used to exercise that power is changed to provide an *indicator* for abusive practices by the majority. If the majority begins to consistently invalidate filibusters, it indicates a disrespect of the minority both to the minority and to the american people. Now, there are also ways to minimize this political impact, but it is still most definitely a political tool, a very real one, and more than a mere friendly agreement (for one thing, the filibuster rule perpetuates when the people who enacted it are gone).
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posted
Note that, as the rule may be overriden by a majority vote, there is no need to amend the constitution to prevent the senate from, through this mechanism, choosing to conduct business by 60% (or whatever) majority.
After all, much of the time the Senate conducts business with actually a very small number of members present through various mechanisms. That's allowed to, and its certainly more than "friendly agreement"; it is an internal institutional tool for dealing with the legislative process.
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posted
And I think an essential part of that agreement was that it not be used to generically increase the number of votes needed to pass a law to 60. Rather, it is to be reserved for particular types of disagreements.
I think a necessary institutional check on the use of this tool is missing.
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posted
The check that the majority can overrule it isn't enough?
Also, I find it sort of bizarre that a 50% majority is considered so holy. As I said, I rather prefer a greater majority; it lends more legitimacy to law-making, and requires more cross-ideology compromise. Why do you find 60% majorities in need of some additional check that 50% majorities don't need?
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posted
"I think a necessary institutional check on the use of this tool is missing."
I'd be perfectly content returning to a requirement that the Senator in question actually occupy the floor. Permitting filibusters in absentia seems rather silly.
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quote:Also, I find it sort of bizarre that a 50% majority is considered so holy. As I said, I rather prefer a greater majority; it lends more legitimacy to law-making, and requires more cross-ideology compromise. Why do you find 60% majorities in need of some additional check that 50% majorities don't need?
Because the intent of our governing document is that each in general each house act when a majority of that house agrees to act, with certain particular exceptions.
If the choice is between allowing filibusters at all or allowing a (edit: full-time) 60% vote requirement, I say go nuclear now and end the charade.
If every tax and every spending program expired every 2 years without the Senate reauthorizing via a 60% vote, I might agree with 60% majorities. As it is, though, inaction is too often actually action, so supermajority requirements can reduce the need for cross-ideological compromise.
quote: Jay, you just linked to the Free Republic. Please don't do that. It stinks up the place.
Hey Tom, I don’t insult your posts, so try and control yourself. I could really care less what you think of the Free Republic. I probably think the same of CBS, NBC, ABC, CNN, and NPR. So tell ya what, if you don’t like it, don’t read it.
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posted
"I could really care less what you think of the Free Republic."
Great. So, since I won't be hurting your feelings, let me reiterate: it stinks up the place. It's a cesspit of drooling idiots. You're welcome to link there, of course, but I'll take you more seriously if you make the effort to disassociate yourself from 'em.
quote: it stinks up the place. It's a cesspit of drooling idiots.
Is this where I’m supposed to say something like right up your alley then! But I guess that wouldn't be nice.
quote: I'll take you more seriously
Really? You would? So you don’t take me serious now? I’m seriously conservative, so since Free Republic! is a big source for conservative views, I’ll continue to use them.
posted
Jay, it's always more powerful and effective to use an opposing parties own evidence against them.
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quote: Is this where I’m supposed to say something like right up your alley then!
Well, no. I'd expect a Freeper to call me something like an asshat and tell me I hate free speech, actually. Posts: 37449 | Registered: May 1999
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posted
Regarding the Constitution, first, while intent matter, words matter more, and the words certainly allow the Senate to adopt a 60% majority rule which may be overrridden with a majority. Not to mention that its not even clear the intent would exclude such a thing, the Constitution is pretty darn clear they get to set their own rules.
As for inaction being action, I fail to see how adding a situation where that is the case ("If every tax and every spending program expired every 2 years without the Senate reauthorizing via a 60% vote, I might agree with 60% majorities.") would reduce the possibility of that.
In fact, here's a brief rundown of a political theory argument why inaction (where inaction means remaining with the status quo) wouldn't happen more often.
A very strong recent argument in political theory is the veto players argument, by Tsebelis (in the book of the same name). It basically argues that the stability (tendency to remain with the status quo) of a government increases with the number of veto players (the exact definition is somewhat complicated, but its basically any coherent entity who/which can effect the disapproval of legislation) in the system. This argument is strongly supported by the available data.
The US has a very high number of veto players, and is very stable.
Increasing the vote total from 50% to 60% would not significantly change the number of veto players, and would thus not significantly change the stability of the system (that is, the number of actions and the number of inactions would stay about the same).
What would change, however, would be the character of the actions, as there would be more coalition building and compromise in order to pass things at the higher requirement. This means that the US would still be about as stable, but the actions (things moving away from stability) would be things resulting from more compromise between more political players.
side note: I'm not talking about a full time 60% vote requirement, though I wouldn't have anything against it, but the fairly regular usage of the current filibuster rule to increase the required votes to 60% unless a majority decides to strike down the right to filibuster in that instance (or in general, either way would work).
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Jay, I won't insult the Free Republic, but have you noticed you are the only person here linking to them? While all institutions have inherent biases, the Free Republic is in a class of it's own with regard to spin.
I know I don't take most arguments seriously, regardless of WHO posts it, if their source is the Free Republic. I would give it as much credence as something printed in the Enquirer, except for the fact that the Enquirer sometimes gets it right, even if it is by accident.
As far as the rest of this conversation goes, I have really liked reading the posts about this, it is very interesting.
posted
Truly, I have absolutely no opinion on the internal machinations of the Senate. The politics of you primitive colonials is far beneath the interest of people from True Civilisation (tm).
As for being a troll : I understand that my opinions on religion are unpopular and possibly hurtful, but I do not post them merely to gain attention. So kindly don't accuse me of trolling.
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posted
Kwea, had Jay linked to the Detroit Free Press, I wouldn't've been as vitriolic. He linked to the Free Republic, which is unfortunately not to the same high standard. *wry laugh*
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posted
Is it possible to hold a dialogue without resorting to an examination of your opponent's character? Heaven forbid that an actual examination of his VIEWS occur. . .
Tom, if the information provided by the Free Republic is false, then say so. If it is not false, then what's the problem? (I'm saying this without having followed the free republic link-- because, honestly, Jay, the links you tend to post are so riddled with bias, they make my teeth ache.)
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quote:(I'm saying this without having followed the free republic link-- because, honestly, Jay, the links you tend to post are so riddled with bias, they make my teeth ache.)
Then i would advice against going to the free republic, because your teeth would probably crumble to dust.
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Why Senator Byrd is wrong on the filabuster Senator Byrd has picked another fight with the Bush Administration. This time Byrd is using Senate rules to stop the Senate from voting on several of the President’s judicial nominees.
Specifically, the senior Senator from West Virginia is filibustering to block the vote. Republicans do not have the 60 votes necessary to end the filibuster. Republicans are considering using the so-called “nuclear option” to stop the filibuster. That’s where Vice President Cheney would declare the filibuster unconstitutional and the Senate would approve by a simple majority vote.
Byrd has argued passionately and eloquently on behalf of the filibuster, which empowers the minority to stop the majority. Says Byrd, “Yes, we believe in majority rule, but we thrive because the minority can challenge, agitate, and question. We must never become a nation cowed by fear, sheep-like in our submission to the power of any majority demanding absolute control.”
That’s a compelling argument, but it’s misplaced in this controversy. Here’s why.
The filibuster is hardly sacrosanct. It’s not in the Constitution. It’s been around for about 150 years and has not always been used for noble causes. For example, small groups of senators use the filibuster to block civil rights legislation.
The filibuster is simply a senate rule, a rule that was changed as recently as 1975 when Senators decided they could end a filibuster with 60 votes instead of 67. Senator Byrd voted for the change along with Senate Majority Leader Mike Mansfield who said at the time, “We cannot allow a minority (of senators) to grab the Senate by the throat and hold it there.”
You also have to look at the motive. Senator Byrd is not using the filibuster for some weighty cause such as trying to stop a war. No, he’s simply trying to block President Bush’s judicial appointments.
I consistently get the feeling that with Senator Byrd when it comes to the President, it’s personal.
President Bush has a Constitutional right—as every President does—to choose judges. Article Two, Section Two says the President “shall nominate” federal judges while the Senate provides “advice and consent.” Most scholars see the section clearly; The President nominates while the Senate provides an up or down vote.
Senator Byrd’s action means a mere Senate rule is trumping the Constitution, a document I know Senator Byrd holds near and dear. He literally keeps a copy in his breast pocket.
Few public figures know the Constitution as well as Senator Byrd and no one knows the Senate better than he. But you don’t have to be a scholar to believe the Senator is wrong on this one.
quote: Article Two, Section Two says the President “shall nominate” federal judges while the Senate provides “advice and consent.” Most scholars see the section clearly; The President nominates while the Senate provides an up or down vote.
"Advice and consent" according to the rules of the senate. The constituition grants both houses of congress the right to make their own rules, with limits. I wonder if most scholars agree with that statement about an up-or-down vote? I bet they're divided.
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