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    A Constitutional Amendment I'd Like To See

    By Michael Maiello on Fri, 12/10/2010 - 12:47pm |

    Even though the U.S. Constitution is a short and plainly worded document, I have to admit that I’m not as familiar with it as I should be.  So last night I went through it looking for this filibuster that has made the Senate completely useless for the last decade.  It’s not in there.

    “Ah ha!”  I said, startling my 8 month old son, who then became less startled and went back to banging his hands on the coffee table.

    But then I read further and saw that the Constitution specifically allows for both Houses to make their own rules.  That’s not good.  Worse, our Senators, in making their own rules, decided to be far more stringent than the Constitution requires.  Only a super-majority can end debate so that matters can come to a vote.  That’s the rule.  Oh, and only a super majority can change the rules.  The Senate has bound itself and will never cut itself loose.

    But it still seems to me that the current situation, where a filibuster proof majority has to exist in order for any law to be made, could not possibly be in line with the intent of the Founders.  I know they didn’t want the most efficient government in the world, but they didn’t want it to be useless either.  The Founders only saw fit to demand super majorities for successful impeachments and for passing Constitutional Amendments.  I get the feeling that they thought simple majorities would handle the bulk of the actual governing.  More important to me than what the Founder’s thought is what contemporary Americans think.  They have generally low confidence in the legislative branch and I think all of this procedural nonsense, which gets in the way of what most would consider fair play (the majority should be able to make laws) is the cause.

    The problem is that pesky right of the Houses to make their own rules.  The Senate has done a particularly bad job of it.  The needless complexity and arcana isn’t just bad for lawmaking, it’s bad for civics.  It makes ordinary people feel the game is rigged and it encourages cynicism and disengagement.

    If I could have any constitutional amendment right now I think I’d take away rulemaking rights from the House and Senate and would replace them with simpler, majority based rules that could be easily understood by any member of the public.  These people are working, after all.  Their employers should make the rules for them.  Of course, that would take a super majority in the Senate, wouldn’t it?

    Well, there are other ways of changing the Constitution.  But first we have to admit that the current system isn’t serving the country’s needs and that we can do better.  Of course they love to shroud what they do from us with complexity and ritual.  It makes oversight impossible and reduces accountability.  What do you all think?

    Comments

    I agree with you said,...but I also think of Republicans taking a majority in the Senate in 2012, and then the ability to keep things from happening appears better than letting something happen...but then again, as a liberal I know it unlikely in the near future to ever get anything near a moderate/liberal Supermajority (one that is weighted more the left than the center) to counter the Republican/conservative Dem coalition, so getting it back to just needing 51 votes seems appealing. 

    One thing we might try to do is start demanding that Senatorial candidates take a pledge to amend the rules if they elected.  Only when they see the voting public is pretty serious about it, will there be some kind of movement on this front.


    by Elusive Trope on Fri, 12/10/2010 - 1:10pm

    I tried to steer myself away from the "but you'll like it when you're in the minority" argument.  This is partly because, while we've been in the minority I haven't actually found it very satisfying.  Our caucus never managed to derail Bush by use of the filibuster with one exception -- they kept Social Security privatization off the table.

    Deep down, even though I have preferred policy outcomes I am a big believer in elections having consequences and of course in the myriad views that make up the economy.  My opponents are going to win elections.  I don't really want to rob them of the right to enact laws when they do.


    by Michael Maiello on Fri, 12/10/2010 - 1:20pm

    I could be wrong but I think each new Senate has a motion whether or not to adopt the rules of the previous session and this is the time cloture can be changed, and by simple majority. Didn't Frist threaten to do this but the "gang of fifteen" prevented it? IMO the Republicans will do it the next time they are in the majority.


    by Oxy Mora on Fri, 12/10/2010 - 3:17pm

    I don't really know the answer to that.  I was reading a paper from some constitutional law professor about that very thing and he seemed to argue that the jury was out about whether or not a simple majority can change the rules when a "new" senate is seated or if previous senates can tie up future generations with their super majority requirement.  It might be that Frist could never have accomplished what he said he could.


    by Michael Maiello on Fri, 12/10/2010 - 3:23pm

    I think Oxy is right. Senate rules say any rule changes can be filibustered, but the Supreme Court has said a majority vote is sufficient, so it's basically up to the Senate to decide its own course of action. I believe the way it would work is that the speaker would rule in order a motion to drop (or modify) the three-fifths rule. Any senator could then challenge that ruling (citing the pre-existing rules) but the vote to uphold or override the speaker would be a simple majority vote. That's the "nuclear option" Frist was threatening.

    You might think the party with a majority (but short of a supermajority) would be keen to drop the filibuster. But the whole appeal of the three-fifths rule is that it enhances the clout of the individual senator. Most, I'd suggest, are more concerned about advancing their own power and influence than enacting a partisan agenda.


    by acanuck on Fri, 12/10/2010 - 5:21pm

    Later on I will be spending some time looking into this rule.

    But if you recall the repubs in 2005 were going for the nuclear option. I do not think that you need 60 to change this patricianistic rule.

    There is something else going on here...One of out bloggers intimated--jokingly I think--that the dems really do not wish for two much change and are complicit in all of this.

    I know for sure that there are ways that the dems will toss some legissation into the budget hopper where they only need a simple majority but with the House run by a bunch of corporate monkeys, it aint gonna count for much.

    I know one thing for sure. You cannot blame Pelosi for any of this crap!!


    by Richard Day on Fri, 12/10/2010 - 2:12pm

    I saw the premise of your blog, remembered old-style Dem Tom Harkin and his long, long quest to end the filibuster.  A long history of failure to interest even his own party baffled and frustrated him.   Eventually he mad attempts to lessen the number of Senators needed for cloture: fail.  But don;t imagine it's just the Republicans who are against it.

    I don't have time, but wiki 'how to amend the Constitution; good god all friday, it akes a lot: 2/3 of the states ratifying an amendment for one thing, and that's just one of the hurdles.

     http://www.politico.com/news/stories/0210/32853.html


    by we are stardust on Fri, 12/10/2010 - 2:46pm

    Funny you should write about the filibuster now, for as of this moment Bernie Sanders is filibustering the Obama/Bush/Bush/Obama tax cut extension legislation.  An actual, real live filibuster.  He's been on the floor talking for more than 4 uninterrupted hours.  Oh, and what brilliant, courageous, truth he speaks.  This event is dripping with irony.  We're going mad, bat shit crazy as a country.  How else to describe it?  Up is down type shit here.  How Sanders stops or how he is stopped will be fascinating were it not so bloody tragic.


    by kyle flynn on Fri, 12/10/2010 - 2:48pm

    Anyone can go to cspan and watch this for themselves live.

    This is the good stuff, yet hardly a peep from any major news org.  Huffington Post hasn't even reported it yet.  I first caught wind of it from Thom Hartman this morning and noticed TPM mentioned it briefly.  I guess I shouldn't be too surprised.


    by kyle flynn on Fri, 12/10/2010 - 3:09pm

    And I know Sanders actions aren't actually preventing anything from happening, but geez, 5 hours and counting aint nothing.  This is good, important stuff.


    by kyle flynn on Fri, 12/10/2010 - 3:25pm

    And I know Sanders actions aren't actually preventing anything from happening, but geez, 5 hours and counting aint nothing.  This is good, important stuff.


    by kyle flynn on Fri, 12/10/2010 - 3:25pm

    Even though I'm clearly anti filibuster, I admire what Sanders is doing.  Of course what he's really doing is making a case, he's making an argument.  This is totally different than sending a note to Harry Reid to say you're going to object to the cloture vote every time it's raised and if you need me I'll be at the bar.


    by Michael Maiello on Fri, 12/10/2010 - 3:25pm

    Do you object to all and any form of filibuster or just the way it's been allowed to proceed recently?  Honestly, I didn't take away from your blog that you are anti filibuster. 


    by kyle flynn on Fri, 12/10/2010 - 3:30pm

    I think I said that too strongly.  What I'm against are these idiotic cloture shenanigans.  The minority does need to be able to make some trouble so it's not always steamrolled.  But I'd respect it more if it were done in the manner that Sanders is pursuing now.  He actually has things to say, he's actually trying to spark debate, he's actually trying to persuade.  The whole Senate concept of "endless debate" should at least include debate.  The Sanders speech is a debate tactic.  Just not voting for cloture and then wandering around on the Senate floor?  Bogus.


    by Michael Maiello on Fri, 12/10/2010 - 3:40pm

    I figured as much.  And in real time Sanders' actions in some ways illustrate the discussion we're having.  

     


    by kyle flynn on Fri, 12/10/2010 - 3:52pm

    The filibuster worked when senators didn't abuse it. I don't think that it ever really fostered the Mr. Smith type of disquisition that Saunders is trying to evoke, but at least when you had to stand there and talk, filibusters were harder to do, so they happened less frequently.

    But part of the problem is political. The filibuster used to be regarded by most senators as an extreme tactic, so in the days before reliable party unity, it wasn't that hard to break them. Senators would often vote to break filibusters even if they disagreed with the bill or nomination under consideration. But these days, filibusters are default tools of the minority party, and so every senate vote must be able to get 60 votes in order to pass. Since the parties are so unified, almost nothing controversial passes.

    We can cheer it on when we believe that the cause is just, but since both sides always believe that their own cause is just, the Senate has been virtually stalemated for four years.


    by Michael Wolraich on Fri, 12/10/2010 - 4:12pm

    So when did this abuse begin in earnest?  In other words when did it become as simple as declaring "filibuster" to filibuster?  I can't find a clear answer.  It seems to me the Majority Leader could require an actual filibuster if he/she had the will.  Paging a parlimenarian for clarity. 


    by kyle flynn on Fri, 12/10/2010 - 4:24pm

    "Between 1995 — when Harkin first introduced this proposal — and 2008, filibusters increased at a rate of 75 percent per session. In the 110th Congress, there were 139 motions to end filibusters. Just last week, Sen. Richard Shelby (R-Ala.) placed a hold on more than 70 executive nominees in an attempt to draw attention to local projects, which had the potential to freeze the Senate.

     "The filibuster was once an extraordinary tool used in the rarest of instances," Harkin said at the press conference, before mentioning Jimmy Stewart's character in "Mr. Smith Goes to Washington."

     "Today, it is the special interests that are using the filibuster to kill legislation that would benefit the little guy."

     But Harkin's effort is a long shot. The resolution to alter rules would require 67 votes for passage, something Reid acknowledges will be nearly impossible to reach."

    http://www.politico.com/news/stories/0210/32853.html

     


    by we are stardust on Fri, 12/10/2010 - 4:39pm

    The Senate introduced the rule change in the early 1970s to keep filibusters from interfering with other business. Prior to that, the whole Senate came to a standstill while the filibusterer held the floor. So there were good reasons to make the change, but it had a detrimental effect of making it easier to filibuster.

    Here's a graph of the growth of cloture motions over the past few decades. Keep in mind that there may be more than one failed cloture motion to end a filibuster, so it's not a one-to-one correspondence.

     


    by Michael Wolraich on Fri, 12/10/2010 - 5:08pm

    One consideration I find important is that it is not an all-or-nothing debate. The Filibuster has been strengthened and weakened over the years - weakened by taking the supermajority requirement down from 65 to 60 (when was that? forty years ago?) and more recently strengthened by the Dems when they restricted the use of Reconciliation.

    So if the question is put in terms of strengthen-vs-weaken, then any party that actually wants to get stuff done (i.e. progressives) should be aiming to weaken it so it is easier to pass bills, and any party that want to keep things the way they are (i.e. conservatives) should be aiming to strengthen it so that it is harder to pass bills. 

    Funnily enough, more recently it's the supposedly conservative party - the GOP - that has pushed hardest to weaken it (on judicial nominations in '05), and it's the progressive party - the Dems - that has done most to strengthen it (limiting Reconciliation to deficit reduction in '09). So that just makes no sense. Either that, OR the GOP's threat, as always, was hollow, and the Dems, as usual, are stone cold idiots.

    Yeah, I'm going with the latter.


    by Obey on Fri, 12/10/2010 - 4:42pm

    Get stuff done? Like cut taxes for the rich and eradicate HUD, the EPA, Social Security, Roe v. Wade?

    Sadly, the U.S. has become a conservative nation in the 21st century. Liberals benefit by the filibuster because it helps them keep conservatives from dismantling what liberals built in the 20th century.

    But the downside is that the government is no longer able to deal with new and pressing problems.


    by Michael Wolraich on Fri, 12/10/2010 - 5:16pm

    Prior to the abuse of the filibuster in recent years by Republicans as part of their "rule or ruin" strategy the filibuster was very rarely used.  The Republicans have degraded our political system far more than most people realize.  When the Republican Party turned to pure evil and chose "the southern strategy" as the means they could use to finally become competitive again after those long, long years between 1932 and 1968 it opened the floodgates for right wing, authoritarian extremism to eventually dmonate and control the party.  That is precisely what has finally occured.  The right wing extreme of the Republican Party is now calling the shots and that perspective is amoral, exploitive and manipulative in the extreme, is utterly without any conscience, and will do and/or say anything required to obtain and hold power.  If we had a Republican Party that was at least sane, the filibuster wouldn't be the issue it is, but they are not sane.  They are wildly irresponsible, reckless and untrustworthy.  Instead of worrying so much about the filibuster Democrats should do two things which are concentrate on knocking as many Republican members of Congress out of office as possible and two would be to have a strategy to completely decapitate and destroy the current radical right wing leadership.


    by oleeb on Sat, 12/11/2010 - 1:51am