Senator Reid's Phantom Republican Filibusters: The phantom filibuster is clearly unconstitutional

[Better Believe It]

Op-Ed Contributor
Make My Filibuster
By DAVID E. RePASS
David E. RePass is an emeritus professor of political science at the University of Connecticut.
New York Times
March 1, 2009


PRESIDENT OBAMA has decided to spend his political capital now, pushing through an ambitious agenda of health care, education and energy reform. If the Democrats in the Senate want to help him accomplish his goals, they should work to eliminate one of the greatest threats facing effective governance — the phantom filibuster.

Most Americans think of the filibuster (if they think of it at all) through the lens of “Mr. Smith Goes to Washington” — a minority in the Senate deeply disagrees with a measure, takes to the floor and argues passionately round the clock to prevent it from passing. These filibusters are relatively rare because they take so much time and effort.

In recent years, however, the Senate has become so averse to the filibuster that if fewer than 60 senators support a controversial measure, it usually won’t come up for discussion at all. The mere threat of a filibuster has become a filibuster, a phantom filibuster. Instead of needing a sufficient number of dedicated senators to hold the floor for many days and nights, all it takes to block movement on a bill is for 41 senators to raise their little fingers in opposition.

The phantom filibuster is clearly unconstitutional. The founders required a supermajority in only five situations: veto overrides and votes on treaties, constitutional amendments, convictions of impeached officials and expulsions of members of the House or Senate. The Constitution certainly does not call for a supermajority before debate on any controversial measure can begin.

And fixing the problem would not require any change in Senate rules. The phantom filibuster could be done away with overnight by the Senate majority leader, Harry Reid. All he needs to do is call the minority’s bluff by bringing a challenged measure to the floor and letting the debate begin.

Some argue that this procedure would mire the Senate in one filibuster after another. But avoiding delay by not bringing measures to the floor makes no sense. For fear of not getting much done, almost nothing is done at all. And what does get done is so compromised and toothless to make it filibuster-proof that it fails to solve problems.

It also happens to make a great deal of political sense for the Democrats to force the Republicans to take the Senate floor and show voters that they oppose Mr. Obama’s initiatives. If the Republicans want to publicly block a popular president who is trying to resolve major problems, let them do it. And if the Republicans feel that the basic principles they believe in are worth standing up for, let them exercise their minority rights with an actual filibuster.

Please read the complete article at:

http://www.nytimes.com/2009/03/02/opinion/02RePass.html?_r=1&ref=opinion

And please e-mail this article to your friends and post it on other progressive discussion boards you may be registered with.

------------------------------------------

If the Republicans organize a Senate floor filibuster against legislation or appointments, the Democrats have the following options.

1. They can surrender to the mere threat of a filibuster and withdraw the nomination or bill.

2. They can surrender to an actual filibuster after taking one or two quick cloture votes to give the appearance of resistance just before they withdraw the legislation or nomination rather than let a filibuster come to a conclusion.

3. Let the Republicans filibuster until the public tires of Republican obstructionism and 60 Senators finally agree to end debate and proceed with an up and down vote.

4. Use the so-called "nuclear option" in which the Senate easily changes Senate rules which would require 51 votes to approve legislation or an appointment and end a Republican filibuster.

So what really is the "nuclear option" which scared the crap out of Senator Reid and other Democratic Senators in 2005?

-----------------------------

In U.S. politics, the nuclear option is an attempt by the presiding officer of the United States Senate to end a filibuster by majority vote, as opposed to 60 senators voting to end a filibuster. Although it is not provided for in the formal rules of the Senate, the procedure is the subject of a 1957 parliamentary opinion and has been used on several occasions since. The term was coined by Senator Trent Lott (Republican of Mississippi) in 2005

The Nuclear Option is used in response to a filibuster or other dilatory tactic. A senator makes a point of order calling for an immediate vote on the measure before the body, outlining what circumstances allow for this. The presiding officer of the Senate, usually the vice president of the United States or the president pro tempore, makes a parliamentary ruling upholding the senator's point of order. The Constitution is cited at this point, since otherwise the presiding officer is bound by precedent. A supporter of the filibuster may challenge the ruling by asking, "Is the decision of the Chair to stand as the judgment of the Senate?" This is referred to as "appealing from the Chair." An opponent of the filibuster will then move to table the appeal. As tabling is non-debatable, a vote is held immediately. A simple majority decides the issue. If the appeal is successfully tabled, then the presiding officer's ruling that the filibuster is unconstitutional is thereby upheld. Thus a simple majority is able to cut off debate, and the Senate moves to a vote on the substantive issue under consideration. The effect of the nuclear option is not limited to the single question under consideration, as it would be in a cloture vote. Rather, the nuclear option effects a change in the operational rules of the Senate, so that the filibuster or dilatory tactic would thereafter be barred by the new precedent.

http://en.wikipedia.org/wiki/Nuclear_option

[Skink]

1. The Thugs aren't picking up majorities in the future anyway.

time to play fair.

[annabanana]

2. And they should force the filibuster on the most popular legislation

possible. (A healthcare plan that will give every single American affordable care)

[Danger Mouse]

3. The Phantom Menace!

[onenote]

4. and what does Prof Repass cite to support his thesis? Nada.

Professor Repass' position is both illogical and, as a matter of constitutional jurisprudence, wrong.

First, its illogical because Repass seems to think that there isn't anything wrong with the traditional filibuster, but that the cloture process established in 1917 somehow is unconstitutional. Here's a clue for the prof -- two versions of the same thing.

Second, one learns pretty quickly to look skeptically at a legal argument that states that something is "clearly" unconstitutional without a single citation in support. Particularly when there is a relevant citation and it undermines the argument. I refer to Article I, Section 5 of the Constitution which expressly gives each house the power to "determine the Rules of its Proceedings." WHile the Constitution specifies the vote margin in some instances, it doesn't have a general rule. So if Congress wants to set the requirements for conducting business it has complete discretion to do so under the Constitution.

Finally, the filibuster isn't going away. WHile the repubs are forcing cloture at an unprecedented clip, the Democrats used the same maneuver dozens of times during the chimpy years to block a variety of nominations and legislation, including same sex marriage amendment, ANWR drilling, etc. Heck, even after they gained control of the Senate, the Democrats used cloture to block repub initiatives on occasion (just as the repubs used it on occasion when they had the majority).

[Better Believe It]

5. "the filibuster isn't going away" You mean the fake Republican filibusters

can't be stopped?

Well, you have failed to present the slightest bit of evidence to back your claim that "filibusters" are provided for in the U.S. Constitution. The Senate has the power and the right to make its rules and can easily end filibusters by using the so-called "nuclear option" that sent Senator Reid and other weak moderate Democrats running for the hills. And with some backbone and willingness to fight reactionary Republicans the Senate Democrats could end the Republican practice of phantom filibusters which will be used to stop EFCA, other progressive legislation and Obama appointments to the Supreme Court and other positions.

I wouldn't be suprised to see conservative Democrats and their Republican friends use your arguments to defend appeasement and surrender to the Republican minority in Congress.

Now I really dislike it when people engage in sophistry to defend the lame excuses made by Democrats to justify their refusal to fight against Republican obstructionism.

When you are ready to actually dispute the points made in the writers article please post a response!

[onenote]

6. i don't recall us thnking it was "fake" when we were using it

As for not providing evidence: I never said the Constitution provides for filibusters. What it does provide -- and if you don't think so, I suggest you borrow a copy of the Constitution and read it -- is that each House is empowered to determine the rules of its proceedings. If the Senate wants to have a rule that provides for unlimited debate or that allows for a mechanism for cloture such as that adopted in 1917, it is clearly Constitutional unless it runs afoul of some other express provision.

The only sophistry is yours in suggesting that I said somehing I didn't. I didn't suggest filibusters are constitutionally required. I said that they are not unconstitutional. Which is directly responsive to the claim made by Prof Repass.

[Better Believe It]

12. Was it used against Bush's right-wing Supreme Court nominations in 2005??

Answer:

NO!

"I didn't suggest filibusters are constitutionally required. I said that they are not unconstitutional. Which is directly responsive to the claim made by Prof Repass."

And the Senate can at any time via a simple parliamentary action rule a filibuster is unconstitutional and declare, in accordance with the U.S. Constitution, that only 50 votes plus a Vice-Presidential tie breaking vote are required to pass any legislation or approve any presidential appointment.

[onenote]

15. not successfully

But it was used (ie there was a cloture vote on Alito's nomination; there wasn't one on Roberts, but then again, what would have been the point, given that he got 78 votes in favor of confirmation). And it was used successfully by the Democrats numerous times in 2002 to block chimpy nominations. Some of those nominations eventually went through as part of the "Gang of 14" compromise. But several (Pickering, Estrada to name two off the top of my head) never became judges as a result of the Democrats blocking cloture.

And the Senate isn't the ultimate arbiter of what is or isn't "constitutional" -- that is what the courts do. (Chimpy liked to have the executive branch decide what was constitutional but I assume you agree with me that wasn't appropriate either). The Senate does, as I have pointed out, have the constitutional power to determine the rules by which it proceeds and to give whatever reason it wants for its decision. And if it wants to change the cloture rules, it absolutely can. But that is far different than claiming that those rules were "clearly unconsitutional" when in fact they were adopted pursuant to the exercise of an expressly enumerated power in the Constitution and do not conflict with any other express provision in the Constitution.

In this regard, I'm ccurious where in the Constitution you find the basis for your statement that 51 votes are all that is necessary to pass "any legislation." In fact, 51 votes are not needed to pass legislation. A bill could, in theory, pass the senate with as few as 26 votes since all that is needed for final action on most legislation is a majority of the votes cast and only 51 senators have to be present for business to be conducted. And to answer my own question, the Constitution nowhere establishes simple majority rule as the standard for the Senate (or the House) to conduct business or even to pass legislation. And, in fact, there are exceptions to simple majority rule apart from the cloture procedure. For example, a number of the Senate's procedural rules require unanimous consent or, as is the case for waiving points of order under the Budget Act, a 3/5 supermajority. Under the circumstances, it is a substantial leap for Professor Repass to declare that the cloture rule is "clearly" unconsitutional.

[Better Believe It]

18. You obviously are not at all familiar with what happened. The filibuster was not used in 2005,

not even a phantom filibuster much less real one, against any of George W. Bush's Supreme Court nominations in 2005.

A group of 7 conservative Democrats agree to not filibuster Bush's nominations if the Republicans promised to not use the so-called
"nuclear option" in which only 51 Senate votes would be necessary to approve any of Bush's nominations.

You didn't know that????!!!!!

Your observation " For example, a number of the Senate's procedural rules require unanimous consent or, as is the case for waiving points of order under the Budget Act, a 3/5 super majority." is not absolute. The Senate can pass a bill that would amend the Budget Act so that simple majority would be required to pass a new stimulus package.

The bottom line which you refuse to recognize is this:

If the Democrats surrender to Republican phantom filibusters and the Republican false claim that nothing can pass the Senate without their votes and support, the Republicans will stop the Obama Administration's legislative agenda and most if not all of his judicial appointments. That will make Obama a one-term President and the country slides into a long and deep depression.

And if the Democrats fail to play hardball and follow your appeasement advice the Republicans will win control of Congress and the White House in 2012.

So you can play the role of a Constitutional scholar and diddle around with semantics all day long, but your intellectual exercise doesn't change the above hard facts.

[onenote]

22. actually I'm quite familiar with what happened, moreso than you it seems

First, you can't just focus on 2005. You need to look at the whole story, which starts in 2003.

In 2003, the Democrats blocked cloture on six chimpy judicial nominees (Estrada, Owen, Pryor, Pickering, Kuhl, and Brown). In fact, the repubs tried five times to get cloture on the Estrada nomination and four times on the Owen nomination, all without success. In 2004, the Democrats used this strategy to block four more repub judicial nominees (Myers, Saad, Griffin, McKeague). By Spring 2005, Frist and the repub leadership were screaming about the Democrats tactics and threatening to invoke the "nuclear option" to end the practice of filibustering judicial nominees, claiming it was unconstitutional. Progressives, including many many DUers were outraged at Frist's threat and at the repubs mantra of "up or down vote". They recognized that the filibuster/cloture process was an important protection for the minority in the Senate.

Finally, the crisis was averted when, as you point out, a group of conservative Democrats and sort of moderate repubs entered into a "memorandum of understanding' in May 2005. That MOU provided that the 14 members would vote to invoke cloture and allow a vote on three of the nominees and left two of them up in the air. Ultimately, of the ten filibustered nominees, only five became judges.

The signatories agreed to oppose the nuclear option but did not unequivocally commit to not filibuster future nominees. Rather, they agreed that they would oppose cloture of a judicial nominee only "under extraordinary circumstances," leaving it to each member's discretion in deciding if such circumstances exist. The Roberts nomination came up a few months later. No effort was made to force a cloture vote, not because of the Gang of 14 deal, but because there simply wasn't enough Democratic opposition with or without the 7 Gang of 14 Democrats. In January 2006, however, an effort was made (albeit unsuccessful) to block Alito's nomination with a cloture vote. One of the Gang of 14 Democrats opposed cloture and one didn't vote.

Second, and more importantly, you can't just look at judicial nominations in assessing the value of the cloture/filibuster strategy. Both before and after the Gang of 14 compromise, the Democrats blocked repub initiatives by refusing to vote for cloture. Over a dozen bills were blocked this way in 2003-2005, including the Federal Marriage Act, ANWR drilling and a number of bills that would have favored defendants and insurance companies over patients and plaintiffs. Some of the bills were killed; in other instances, the bills ultimately became law, but only after amendments were agreed to gain Democrats support. In short, even when they passed, the bills were better from a Democratic standpoint than would've been the case had the filibuster/cloture strategy not been available.

Even after the Gang of 14 deal ---indeed, only days later -- the Democrats blocked John Bolton's nomination to the UN by refusing to vote for cloture. Bolton ultimately got the position through a recess appointment, but only was able to hold the position for 17 months -- leaving at the end of 2006 because confirmation was out of the question.

So that's the story. Between 2003 and 2005 the Democrats blocked a number of judicial appointments and repub bills through cloture. Not every bill. Not every nomination. And they stuck to their principles -- principles shared by progressives at the time -- in the face of loud protestations from repubs that they were being "obstructionist" and refusing to allow and "up or down vote" on chimpy's nominations. Sound familiar?

Finally, I note that you've managed to completely avoid the point that I raised in my first post in this thread -- the point that Prof Repass has not offered any support for his claim that the Senate rules allowing "phantom" filibusters -- the same kind of filibuster used by the Democrats in the past -- is "unconstitutional" (a claim mocked, ridiculed and otherwise strongly rejected by progressives in 2005). Nor have you addressed the fact that the Constitution expressly empowers each House to determine the rules of their proceedings and does not expressly provide that the standard for passing "any legislation' (your phrase) is mandated to be a simple majority in any or all cases.

Ball in your court.

[Better Believe It]

23. You support the Republicans use of phantom filibusters to destroy

the Obama presidency.

I don't.

That's the bottom line.

[onenote]

24. Bottom line -- you are intellectually dishonest

and I'm not. Unless of course you were standing arm and arm with Frist back in 2005 -- something that wouldn't surprise me.

And I'm still waiting for your defense of Prof Repass' constitutional analysis, keepnig in mind that I've never ever said that the filibusters are constitutionally mandated or protected or that Congress couldn't change its rules. It could, in a heart beat. I'm just glad they won't because the long term damage from eliminating the filibuster would be almost unfathomable. Which, of course, is why progressives opposed the Frist approach that you so wholeheartedly embrace.

[Better Believe It]

26. A simple Question: Do you support phantom Republican filibusters against Obama or not?

Yes or no.

Second question.

Did you support the "Gang of 14" 2005 deal to prevent Democratic filibusters?

Yes or no.

[onenote]

27. Simple question back: Did you oppose the Democrats filibuster of the Federal Marriage Amendment?

As for your question: I want the repub filibusters defeated. But I don't want to do away with the right to filibuster.

And I supported the Gang of 14 deal because it preserved the right to filibuster

Did you oppose it because it preserved the right to filibuster?

And by the way, do you ever plan to get back to the original issue -- Repass' claim that the filibuster is unconsitutional?

[Igel]

28. "the Senate can at any time via a simple parliamentary action rule a filibuster is unconstitutional"

On what basis?

And why bother with such a overwrought conclusion?

It's not unconstitutional; that's been proven. (I prefer to think of them as non-Constitutional ... the Constitution is irrelevant in what the rules look like, for the most part; I consider supermajority provisions to reflect a principle saying that we value minority opinions even when we're a majority, even though others, and, at times, a majority in the country, have discounted any use for minority opinion.)

However, there's another possible point. It's been claimed that a simple majority would suffice to dispose of supermajority requirements. That might be, under Senate rules--they're not Roberts, by any means (although they started off looking very Roberts-like). Most parliamentary procedures, however, say that you can't get around a supermajority vote in the rules by invoking a simple majority vote--in other words, to dispose of a rule saying you need 60 votes for a certain kind of motion you'd need to have at least 60 votes. As I said, though, Senate rules have been tweaked and twiddled with for short-term purposes more often than I'd care to think about.

[CTLawGuy]

30. Actually

changes to senate rules require a 2/3 majority. To use the "nuclear option" to change them in the middle of a session is to use a power-grabbing, undemocratic and frankly fascist method of changing the rules when you don't like them.

If you want to get rid of filibusters, get rid of them when the next set of senate rules are voted on, probably in 2010. Personally, I like the filibuster, as it is one of few tools that exists to protect the rights of the minority.

That being said, I think that Harry Reid should do more to force actual filibustering, but that may actually be difficult.

Under the senate rules, the senate can do no business without a quorum (or 51 senators on the floor). The senate rarely enforces this rule because no one objects to it. However, during a "filibuster" a senator can block a motion to call a vote by suggesting the absence of a quorum and forcing business to grind to a halt until 51 senators are on the floor. So, the only time during which the filibusterers would have to talk, is if there are 51 senators on the floor.

Now I think the rules should be changed to suspend the quorum requirement after a failed cloture vote - i.e. that filibustering parties should be forced to speak on the bill perpetually whether there is a quorum or not, but that is actually not the case now.

[PretzelWarrior]

14. they need to make them do the whole dance

not just threaten with this shit. THese guys were famous for not working full work weeks. or full days or sessions. Time to make them earn their keep having these kinds of debates ongoing so they force them to be in public stalling a bill.

[Triana]

7. Send this to HARRY REID and whitehouse.gov! n/t

[PretzelWarrior]

8. FINALLY!!! OUR questions on this go mainstream.

good! The whole nation reads the NY Times. We must see that Reid and the leadership force the Republicans' hand.

[NoPasaran]

9. There is clearly nothing in the constitution about filibusters, phantom or otherwise

It would be better to describe them as "aconstitutional", since they exist as part of the rules of the Senate.

[onenote]

16. what there is in the Constitution is Article I, Section 5

Which empowers each House to "determine the rules of its proceedings." Hard to make a case that the cloture rule is "unconstitutional" when its simply a "rule" adopted by the Senate to govern its proceedings, much like any number of rules, including some that require unanimous consent for certain actions.

[treestar]

29. When it has the ultimate effect of requiring 60 votes to pass

anything, it seems to go against the Constitution. The Constitution has special supermajority requirements, so it clearly does not intend to require it all the time.

[peaches2003]

10. Nothing will change until the Senate or voters in NV

get rid of Harry Reid. We need a strong majority leader who is the voice of the Senate and not this wimp.

[Better Believe It]

13. President Obama and Senate liberals can lean on Reid

[Thrill]

11. Harry Reid is a weak leader. Make them filibuster

[onenote]

17. as has been explained many times

making "them" filibuster would only put the repubs in the drivers seat. In order to force the repubs to bear the burden of holding the floor and preventing all other business, there has to be a quorum, so the Democrats would have to all show up. And if the repubs are holding forth listing all the crapola that they don't like about this and that in the bill, and the Democrats aren't responding, its not going to play out that well for the Democrats. The repubs will control the message.

There is a reason that "real" filibusters are rarely forced. As even a strong leader like Lyndon Johnson discovered back in the 1950s, filibusters are successful more often than not. FOr example, the 1957 Civil Rights Act only passed after its proponents, unable to break a filibuster, agreed to water down the bill. In fact, cloture was not successfully invoked at any time between 1927 and 1962. Intereswtingly, the changes in the rules adopted in 1975 have made it easier to invoke cloture, resulting in more cloture votes -- between 1975 and the late 1990s, cloture votes were taken over 300 times and they succeeded in shutting down debate around 40 percent of the time.

[Better Believe It]

20. The Republicans pretty much appear to be in the drivers seat with Reid's phantom filibusters

[Better Believe It]

19. U.S. News & World Report: Time to End the Filibuster By Making It Real

Time to End the Filibuster By Making It Real
By Robert Schlesinger, Thomas Jefferson Street blog
U.S. News and World Report
March 2, 2009

Is it time to eliminate the filibuster? Definitely not. But David RePass, an emeritus professor of political science at the University of Connecticut, has an interesting suggestion in today's New York Times along those lines but distinctly short of it.

RePass bemoans the fact that the filibuster has given the senate's minority party a functional veto over legislation in that chamber by requiring at least 60 votes to pass something. But, he points out, real filibusters never actually happen these days: the modern "filibuster" is more threat than action.

Which is where RePass' solution comes in:

... fixing the problem would not require any change in Senate rules. The phantom filibuster could be done away with overnight by the Senate majority leader, Harry Reid. All he needs to do is call the minority's bluff by bringing a challenged measure to the floor and letting the debate begin.

In other words, don't get rid of the filibuster. Instead make it real: Force Republicans to actually get up and tie up Senate business and explain why they're doing it. If the GOP (or the Democrats, in time, when they are back in the minority), want to filibuster they should be able to—but they should have to actually do it.

http://www.usnews.com/blogs/robert-schlesinger/2009/03/02/-time-to-end-the-filibuster-by-making-it-real.html

[Exilednight]

21. Here's a question - does anyone really know what a fillibuster is, or ......

do they believe it to be something like Mister Smith goes to Washington?

[harun]

25. Reid is waiting to pull out the big guns when we get to the important stuff

like Health Care. That is when the war will start.

[Better Believe It]

31. "Let them [Republicans] go ahead and make their filibusters, for one, one week or whatever"

New York Times
To the Editor:

David E. RePass’s article to get rid of the “phantom filibuster” is right on target. Enough of the Senate majority leader, Harry Reid, bringing up diluted proposed legislation or not having it heard at all unless there are 61 senators in favor of it. It is time for the Democratic majority we voted for to have its proposals fully considered.

If the Senate Republicans want to fight them, let them go ahead and make their filibusters, for one day, one week or whatever, so that it will be out in the open and we can all see what is going on and reward them when the time comes. If we are pleased, we will increase their numbers; if we disagree, we will boot more of them out.

Irene M. Piccone
Northville, Mich., March 2, 2009

http://www.nytimes.com/2009/03/08/opinion/lweb08filibuster.html

[Better Believe It]

32. Senator Reid's spokesman: "I can't imagine Sen. Reid would ever resort to the 'nuclear option'"

Jim Manley, spokesman for Senate Majority Leader Harry Reid (D-NV), tells the Times that unlike Senate Republicans, Reid plans to be consistent in his position. “I can’t imagine Senator Reid would ever resort to the illegitimate tactic called the ‘nuclear option’ that the GOP turned to four years ago,” said Manley.

http://thinkprogress.org/2009/03/17/gop-filibuster-hypocrisy/

Of course not. It worked really well for the Republicans against Democrats so why in the world would Senator Reid ever use it against Republicans. It might actually work and force an end to Senate Republican obstructionism and we can't have that!