America Held Hostage: Day 704. Hostage Release in Sight?
Everyone is familiar with Cinco de Mayo, the day Mexico thwarted an attempt of a French occupation against seemingly insurmountable odds. It has become an excuse for Americans to drink a lot of Dos Equis under the false assumption that it’s Mexican independence day. It’s almost as big as St Patrick’s day. Seems ironic to celebrate a Mexican holiday when we seem to expend a great deal of effort trying to kick Mexicans out of the country.
But this article isn’t about the 5th of May or immigration; it’s about the 5th of January. That is the day in 2011 when the 112th Congress convenes. And on that day, and that day only, the new Congress gets to decide the rules of order under which they will operate for the remainder of the session. This includes addressing how the Senate will deal with the filibuster rules that have been abused by the Republican minority during the 111th Congress (see my previous article for more details and links).
There is a great deal of outrage over the procedural abuses of the past couple of years. But despite those filibuster abuses the 111th Congress managed to be one of the more productive sessions in recent memory. The complaints and remedies to address the abuses vary in degree but one thing has held constant: the rules of the filibuster must be altered to prevent this type of abuse from continuing.
Some have cried “abolish the filibuster altogether and let the majority prevail.” Others have called for an end to the secret hold rule. Some say that the spirit of the filibuster has been lost and that all you have to do is threaten a filibuster and go home for dinner and suffer no consequence while the Senate is bound and gagged. Bringing congress to a grinding halt just because you can isn’t governance. Nor is it representative democracy.
Among the chief revisions that Democrats say will likely be offered: Senators could not initiate the filibuster of a bill before it reaches the floor unless they first muster 40 votes for it, and they would have to remain on the floor to sustain it. That is a change from current rules, under which the majority leader is required to file a cloture motion to overcome an anonymous objection to a motion to proceed, and then must wait 30 hours for a vote on it.
“There need to be changes to the rules to allow filibusters to be conducted by people who actually want to block legislation instead of people being able to quietly say ‘I object’ and go home,” said Sen. Claire McCaskill, D-Mo.
This year, McCaskill lined up backing from more than two-thirds of senators for elimination of secret holds, which allow a senator to block action on a bill or nomination anonymously. She said that Democrats will also push plans to force senators who place holds to do it publicly.
The problem is that all a senator has to do is file “an intent to filibuster” and that is sufficient to require the cloture vote of 60 votes. Let’s start by making senators get up and actually debate the way they did in the old days.
The results of a November 2010 poll conducted for the Progressive Change Campaign Committee by the Democratic pollster PPP reveals that among Democrats, who saw much of their legislative agenda tied up in the Senate by Republican filibusters this year, 77% called for an end to the practice of effectively requiring a 60-vote majority to pass bills. Fifty-seven percent of Republican respondents said they opposed the filibuster, as did 61% of independents.
According to PCCC’s Adam Green, “Even among a skewed 2010 electorate with depressed Democratic turnout and high Republican turnout, voters are tired of obstruction in the Senate and overwhelmingly support the boldest filibuster reform possible: the Constitutional norm of majority rule,” he said. “Democrats can resist the inevitable Republican protests that will come with such reform with the full knowledge that even a Republican-voting electorate supports Democrats being bold on this issue.”
All returning Senate Democrats and Independents have signed a letter to Harry Reid demanding comprehensive filibuster reform for the 112th Congress. The charge is being led by Senator Jeff Merkley from Oregon and Tom Udall from New Mexico
…I think it’s important for people to understand that this isn’t a question of filibuster or no filibuster, it’s about the ability of the minority and the majority to participate in a deliberative process. The filibuster was designed to make sure every member gets to participate and that the minority has a significant role. It wasn’t designed to obstruct the deliberative process, and there’s nothing about the way that the Senate is operating right now that is consistent with the way the Senate has operated historically.
So if the social contract is broken, the contract that said “I understand that only under the most pressing, important circumstances will I utilize my privilege to delay the Senate and demand a supermajority vote,” if that social contract is gone and it’s a routine thing because one wants to paralyze the Senate and keep it from operating, then we need to adjust the rules. That doesn’t mean we get rid of the filibuster, but it does mean that we should make anyone who wishes to exercise that [procedure] have to put more energy into it than simply filing an objection and walking away and having dinner while you delay the Senate for a week.
My reforms would create a situation where if you want to delay the Senate for a week and force a supermajority, you can’t do it on a whim. You’re going to have to go to the floor, and you’re going to have to defend your position to the American people. The American people are going to be able to respond to it, and you’re going to have to spend the time and energy to do that. That’s the heart of it.”
It might seem odd timing to alter the filibuster rules when changes to those rules; which worked so well when the Republicans were in the total minority, would work in their favour again now that the Senate is very nearly evenly divided. But Democrats need to be prepared for the possibility that they might be in the minority in the Senate one day.
The filibuster, in theory, isn’t a bad idea. It is important not to quash a valid argument even if it is in the minority. Many of the best policies that have happened in this nation began as a minority ideal and only through public debate did others come to agree to make changes that were once majority concepts. But there is a difference to an objection to a policy and an objection to a democratically elected majority party. And when procedure is misused to shut the whole process down, then something needs to change. Expect that egregious abuse to end on January 5th, 2011. Feliz Cinco de Enero!
(Thanks to Jean for doing some simultaneous and contributory research on this article)
- Dems United on Filibuster Reform, Follow Merkley’s Plan (Blue Oregon)
- Sen. Jeff Merkley: ‘This isn’t a question of filibuster or no filibuster” (Washington Post)
- Senate’s Returning Democrats Unanimously Favor Filibuster Reform (National Journal)
- In Election Week, Majority Agrees It’s Time To Scrap The Filibuster (Talking Points Memo)
- “Filibuster Reform is Good for the Planet” and related posts (redgreenandblue.org)
- Returning Senate Dems Unanimous: Time To Reform Filibuster Rules (crooksandliars.com)
- Byron York is awfully certain that filibuster reform won’t happen. Funny thing, that. (crooksandliars.com)
- The committee to save the Senate – Washington Post (news.google.com)
- The 112th Congress. New Senate, New rules? Mark Your Calendar – 1-5-2011 (planetpov.com)