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You are here: Home / Open Threads / Indoor Fireworks

Indoor Fireworks

by $8 blue check mistermix|  December 15, 20102:26 pm| 70 Comments

This post is in: Open Threads

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A friend sends this HuffPo story where Tom Harkin talks some smack about filibuster reform:

Sen. Tom Harkin (D-Iowa), who has championed a weakening of the procedural mechanism that allows the minority party to hold up legislation, predicted “fireworks” on Jan. 5, 2011 — the day on which the Senate can, he argued, revamp its rules by a simple majority vote.

The scenario is that Democrats propose a rule change, Republicans object, Biden overrules that objection, and 51 Democrats vote for filibuster reform.

I can’t see 51 of those cats doing anything, and I think that some are (probably reasonably) afraid that changing the Senate to a majority rule-institution will disadvantage Democrats when President Palin is in power with Republican majorities in the Senate and House. But failure to do this puts Jim DeMint in the driver’s seat for the next two years, and that’s going to be ugly.

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Reader Interactions

70Comments

  1. 1.

    Brian S (formerly Incertus)

    December 15, 2010 at 2:28 pm

    It’s one of those things where it’s a good play in the long run but it might cause some short-term pain. But we’re getting pain in the next two years no matter what, so we might as well get it done now.

    OT: Fox and Friends rails on the 9/11 rescue workers health benefits bill failing, but never mentions Republicans were the ones who killed it.

  2. 2.

    meh

    December 15, 2010 at 2:29 pm

    there is a dark, hidden little part of me that is sort of giddy about a period of palin presidency – only in a train wreck/cant look away/ holy shit were all fukd kind of way…it’s like a bad movie that we’re all gonna be livin..lol – 50/50 says that the UN as a whole invades us to relieve us of our nukes until we get a more stable govt.

  3. 3.

    fasteddie9318

    December 15, 2010 at 2:31 pm

    DeMint won’t be in the driver’s seat for the next two years no matter what happens to the Senate rules, because Cantor is running Congress now. The Democrats can eliminate the filibuster, and that will help with nominations, but with a Republican House they’re not going to get any legislation worth passing anyway. It doesn’t matter anyway, because when the Republicans take the Senate in 2012 eliminating the filibuster will be their first order of business; might as well eliminate it now and at least get the glut of unconfirmed nominees cleaned out.

  4. 4.

    Pangloss

    December 15, 2010 at 2:32 pm

    Why is it that a Palin presidency seems both absurd and inevitable at the same time?

  5. 5.

    Menzies

    December 15, 2010 at 2:34 pm

    @Pangloss:

    Because the country’s becoming absurd. She’s just coming along at exactly the right time to help it along AND symbolize it.

    Great Elvis Costello ref, mistermix.

  6. 6.

    chopper

    December 15, 2010 at 2:35 pm

    the rule change doesn’t have to full-on knock out the filibuster. adopting merkley’s package would be a good start, and make the motherfuckers actually filibuster shit. have some chump sitting there reading out of the phone book for 3 days straight while 15 of his buddies have to remain in the chamber the whole time.

    fuck this raise your hand and go back home shit.

  7. 7.

    cintibud

    December 15, 2010 at 2:38 pm

    I was wondering – during the Bush years just what did the dems successfully filibuster? I can’t think of anything off the top of my head. Why would they want to save that option for themselves when they never use it anyway?

    Edit: now that I think about it, any time the Dems threatened a filibuster the R’s made comments about the “Nuclear option” and the Dems backed down. If they told them to go ahead then either the senate would be able to work now or maybe there would be a different face or two on the supreme court

  8. 8.

    Alex S.

    December 15, 2010 at 2:39 pm

    53 democrats vs 47 Republicans, and “only” 50 votes needed… I can see quite a few democrats voting for whatever abomination the republican House sends over.

  9. 9.

    Murc

    December 15, 2010 at 2:40 pm

    You know, I may be insane for thinking this, but… if in 2013 President Palin has a Republican majority in the Senate, then yeah, okay, she’d deserve to get to govern without crazy filibuster obstruction in the same way Obama deserves to, but does not get to. And then when she runs the country into the ground and President Schweitzer gets a Democratic Majority in 2016, he will deserve to do the same thing.

    But that’s just me.

  10. 10.

    Clayton

    December 15, 2010 at 2:41 pm

    Any number of reforms could work, like requiring the minority to have some members present (Jeff Merkley’s idea) or reducing the threshold to 55 after a week and then to simple majority the next (I think that’s Harkin’s idea). But what they should do to make it ‘fair’ is put it into effect in 6 years. I know, it’d be great if we could get it right away, (or even two years ago), but that way its to far out for anyone to be totally sure who would be in control of the senate and every current senator would have to go through another election before it happens (so it doesn’t look like they’re trying to benefit themselves).

    But it’ll never happen…

  11. 11.

    wsn

    December 15, 2010 at 2:41 pm

    Might as well get everyone on record. That way we will know who to target/persuade.

  12. 12.

    Buck

    December 15, 2010 at 2:42 pm

    @meh:

    …the UN as a whole invades us to relieve us of our nukes until we get a more stable govt.

    That, and air dropping food aid and basic medical supplies. [edit] And helping dig some wells, too, also.

  13. 13.

    geg6

    December 15, 2010 at 2:43 pm

    After the stupid (it burns!) and inhuman discussion in the Manning thread, I think I’m beginning to be perfectly happy to see this entire country just fall to pieces. This filibuster bullshit is just another manifestation of the many reasons I feel that way.

    I can’t take this shit another minute. For real.

  14. 14.

    LTMidnight

    December 15, 2010 at 2:47 pm

    “……I can’t see 51 of those cats doing anything, and I think that some are (probably reasonably) afraid that changing the Senate to a majority rule-institution will disadvantage Democrats when President Palin is in power with Republican majorities in the Senate and House….”

    You speak like it’s a done deal. Maybe if liberals weren’t so damn pessimistic all the time, they may get taken more seriously.

  15. 15.

    steviez314

    December 15, 2010 at 2:49 pm

    I surprised the Democrats voted to keep Gitmo open. Vice President Liz Cheney will probably send them all there.

  16. 16.

    Stooleo

    December 15, 2010 at 2:51 pm

    I’d like to see a President Palin just to watch John McCain choke that shit sandwich down. Its his fucking fault that she was foisted upon us in the first place.

  17. 17.

    JGabriel

    December 15, 2010 at 2:51 pm

    mistermix:

    I can’t see 51 of those cats doing anything, and I think that some are (probably reasonably) afraid that changing the Senate to a majority rule-institution will disadvantage Democrats when President Palin is in power with Republican majorities …

    I think the key here is not so much to create a strict majority rule Senate, but to make the filibuster much more difficult to sustain. Currently, it takes 60 votes to overcome a filibuster, and, at worst, only a few votes to sustain it by blocking a cloture vote from taking place.

    So, one change that could preserve the filibuster, but make it more difficult to sustain, would be to make it a requirement that after a set period, say a week of debate, a cloture vote can only be prevented by 40% of the Senators present voting to block it. I’m sure other, probably better, procedural solutions could be devised as well.

    .

  18. 18.

    Tractarian

    December 15, 2010 at 2:56 pm

    From a Democratic perspective, the time for filibuster reform has come and gone.

    What exactly would be the point of filibuster reform in 2011? Even if Dems could pass legislation with 50 votes plus Biden, how are they going to agree on anything with a strongly Republican house?

    In other words, legislatively, nothing is going to get done for the next two years, with or without a 60-vote threshold in the Senate.

  19. 19.

    cat48

    December 15, 2010 at 2:56 pm

    I’ve had it with this crap. I ripped Graham & Demint’s aides a new one today b/c Kyl & Deminted were whining about working at Xmas & since they’re Christians, they should have XmasTime days off. As a former Govt employee, one day for Xmas & not sure they deserve that.

    Told them basically, the least they could do is act like they cared about National Security since I don’t agree w/their ideology………I’m just furious w/this crappy State & their crappy elected officials compared to my IL town. Just the pits living here!

  20. 20.

    cat48

    December 15, 2010 at 2:58 pm

    @Tractarian:

    Liberal Judges and various employees for Executive Branch.

    Edit There’s about 40 waiting now & 60 vacancies.

  21. 21.

    Rhoda

    December 15, 2010 at 3:01 pm

    We’re acting like we’re living in a parliamentary democracy; we might as well take another step down that road.

    Let’s eliminate the filibuster. Right now too many folks are getting elected that are bat shit insane because too many Americans are complacent enough to believe things can’t really change all that much so I’m just going to vote my feelings and we get a George W. Bush.

    Fuck that.

    Let’s let these votes mean something and a good way to do it is to pass this reform. It ups the stakes and frankly makes it harder for the corporations because they can’t simply hide with this bullshit 60 vote threshhold we have now and the holds nonsense. Get rid of it all and let the senate do what it was meant to do; consider legislation and vote it up or down.

  22. 22.

    NonyNony

    December 15, 2010 at 3:03 pm

    @Tractarian:

    What exactly would be the point of filibuster reform in 2011?

    Seating judges and other presidential appointments.

    Making sure the stupid we’ve just gone through for the last 2 years doesn’t have to be gone through again the next time Democrats have majorities in both houses (which I suspect will come sooner than most down-in-the-mouth liberals think – Republicans can’t hold power without screwing up. it’s baked into the ideology at this point.)

    Also – it’s just good from a democracy standpoint. By the strictures of the Constitution the Senate is already a horribly undemocratic institution. The filibuster rules make it worse. Getting rid of the filibuster is just good policy for anyone who believes in representative democracy, and so the liberals among the Dems should snatch the chance while they have it (it’s not like the Republicans will be willing to put it back into place once they get into power – once it’s gone it’s gone).

    (Frankly what would be best from a democracy standpoint is if we could just abolish the Senate altogether – or restrict it to being a House of Lords style impotent body. But I doubt we’ll ever have the cojones in the US to go that far – we can’t even get rid of the goddamned Electoral College.)

  23. 23.

    Edo

    December 15, 2010 at 3:05 pm

    [email protected]:

    two words: Federal Judges.

    and I agree with the other commentors that the GOP will eliminate the filibuster the first chance they get to. Comity in the Senate is gone and is very unlikely to ever return.

  24. 24.

    scarshapedstar

    December 15, 2010 at 3:09 pm

    The Democrats can have 0 houses of congress or they can have 1.

    It’s up to them.

    They can have John Boehner’s Three-Ring Circus, and Mitch McConnell’s Bondage Club. Or they can publicly neuter McConnell, pass some decent legislation through the Senate, (obviously this requires that a few Senators stop being fucking tools) and put Boehner on the spot day after day.

  25. 25.

    Scott P.

    December 15, 2010 at 3:11 pm

    I was wondering – during the Bush years just what did the dems successfully filibuster? I can’t think of anything off the top of my head. Why would they want to save that option for themselves when they never use it anyway?

    Quite a lot, actually. See this graph: http://tinyurl.com/2s8lhe

    The use of the filibuster by both parties has been increasing steadily. We should get rid of it.

  26. 26.

    FlipYrWhig

    December 15, 2010 at 3:14 pm

    Yeah, like many of you, I’ve come to believe that regardless of the good uses to which the filibuster may have been put, it’s obsolete now that we’ve lost the “gentleman’s agreement” of sorts that used to make senators–OK, Republican senators–worry that filibustering would make them look like cheaters and bad sports. That’s what McConnell’s experiment in blatant obstructionism proved. We can’t have that, and we shouldn’t be able to have that. We shouldn’t be able to have a system that willfully sets itself up to prevent large majorities from getting a shot to make laws their way. If Republicans achieve a large majority, fine, let them do what they want. What we’re doing now, where Republicans brazenly block things but Democrats can’t because of the media and their own scaredy-cat natures, is killing the fucking government. The Senate has way too many ridiculous provisions, from “blue slips” to “holds” up to and including the filibuster. It’s total bullshit. Sweep it all away, rebuild what you want, and let’s get to governing already.

  27. 27.

    scarshapedstar

    December 15, 2010 at 3:15 pm

    And as others have noted, yes, they can ram through every single appointment in one day.

    That’s the kind of thing the media swoons over.

  28. 28.

    JGabriel

    December 15, 2010 at 3:16 pm

    @NonyNony:

    Getting rid of the filibuster is just good policy for anyone who believes in representative democracy…

    In that case, just get rid of the Senate altogether. If you don’t want a chamber where the popular will can be slowed down for consideration and where a large minority can block particularly egregious legislation, then you have no need for the Senate at all.

    The filibuster preserves a mechanism for the minority to stomp its feet and say no. Currently, that mechanism is too easy to use and penalty-free. What’s needed is a mechanism that allows a minority to bollocks up the Senate, but at a price or only with difficulty, so they won’t choose to do it for minor political gamesmanship.

    .

  29. 29.

    FlipYrWhig

    December 15, 2010 at 3:18 pm

    @Rhoda: Well, Democrats will still have issues, I think, regardless of the number; they’re always going to have a bloc that hampers what the mainstreamers are trying to do. We saw it playing out the past two years around the 60-vote threshold, but I think we’d see it around 51 as well, because there are a lot of “centrists” and “moderates” in the Democratic caucus. But at least if you can scrounge up the 51st vote from among several options, you won’t get as much of this irritating grandstanding from the 58th, 59th, and 60th people like keeps happening lately.

  30. 30.

    LABiker

    December 15, 2010 at 3:23 pm

    We might have something close to a democracy if the Senate was run on a majority rules basis. Worried about Republicans taking control of a majority rules Senate? I say let ’em and then let the American people decide which philosophical approach they like best. No more hiding behind procedures. Yay or Nay, motherfuckers.

  31. 31.

    Michael Bersin

    December 15, 2010 at 3:32 pm

    Senator Claire McCaskill (D) has been strangely silent of late:

    Well, Claire?

    Senator Claire McCaskill (D): Twitter flurry on republican obstruction and filibuster reform

  32. 32.

    Pangloss

    December 15, 2010 at 3:34 pm

    @JGabriel: This. I know the filibuster is not popular now in its current form, but I was glad it was there in 2005-06 when Bush was preparing to privatize Social Security.

  33. 33.

    Rhoda

    December 15, 2010 at 3:37 pm

    @FlipYrWhig: I think if the threshold had been 51 we would have been able to have a far smoother two years. And simply having to VOTE things out and go on the record is big; or force a real talky talky filibuster on the minority.

    The problem is when idiots like Landrieu can place a “secret” hold that is honored to grandstand and make life harder for all the democrats. Senators love these little perks of power and their little fiefdoms which is why I don’t hold much hope for change; but it’s necessary.

  34. 34.

    Caladan

    December 15, 2010 at 3:39 pm

    The is not a creation of a majority rule system, but a return to it. It makes it harder to sustain a filibuster by requiring increasing numbers of the minority party to support the hold.

  35. 35.

    Hob

    December 15, 2010 at 3:40 pm

    @LABiker: Except that a majority in the Senate can be elected by a small minority of the American people, because of the overrepresentation of sparsely populated states.

  36. 36.

    FlipYrWhig

    December 15, 2010 at 3:44 pm

    @Rhoda:

    I think if the threshold had been 51 we would have been able to have a far smoother two years.

    Smoother but not totally smooth, IMHO. We got to know and loathe Nelson, Lieberman, Lincoln, and Landrieu over the past two years because they made themselves votes 56-59 on big-ticket items. But just behind them were people like Bayh, Carper, Pryor, Warner, Webb, the other Nelson, Baucus, and more, and they’d still be sniping and bellyaching and watering things down.

  37. 37.

    NonyNony

    December 15, 2010 at 3:49 pm

    @JGabriel:

    In that case, just get rid of the Senate altogether.

    Well, yes. We should get rid of the Senate altogether. That was at the end of my post.

    But since that’s not actually possible politically, I wouldn’t suggest wasting time tilting at that windmill. Filibuster reform is possibly politically at the moment, so go with what you can grab.

    If you don’t want a chamber where the popular will can be slowed down for consideration and where a large minority can block particularly egregious legislation, then you have no need for the Senate at all.

    I actually have more of a problem with a Chamber where the seats are apportioned by geography rather than by population than the filibuster rules. If the Senate were an actual democratically representative body by population and they had a 2/3 filibuster rule in place I’d find it obnoxious and somewhat undemocratic, but not nearly as obnoxious and overtly undemocratic as the fact that they have a nearly 2/3 vote requirement when the folks doing the voting are apportioned based on arbitrary 19th century boundaries and not by the number of people they represent.

    IOW – if the cloture-vote rules were a property of the House and the Senate had simple majority rules to pass legislation, I’d grumble about it but the Senate would remain the biggest flaw in the American system of government.

  38. 38.

    John - A Motley Moose

    December 15, 2010 at 3:51 pm

    Typical Democratic incompetence. Don’t pass filibuster reform in 2009 when it would have done some good. Oh, no. Let’s wait until 2011 so the conservadems and Republicans can force through some of the crazy shit that’s going to come out of the teabagger House. Political genius? Nah. Political idiocy.

  39. 39.

    patrick II

    December 15, 2010 at 3:55 pm

    Why isn’t it being widely asserted that the senate rules preventing majority rule are unconstitutional?

    The constitution calls for a simple majority to pass a bill. The recent requirement for sixty votes is a byproduct of the filibuster which made some sense in small doses, but is a matter of Senate rules, not constitutional law. When the constant use of a Senate rule effectively subverts the basic and clear intention of the constitution, it seems to me that it the senate rules contravene the constitution. Parliamentary rules are meant to manage an organization in an orderly manner. Rules that subvert the basic purpose of an organization are not managing the organization but redefining it, and in this case are in essence rewriting the constitution.

    People serious about the constitution and originalists who pretend to be should be held responsible for more than considering the best political strategy when writing the rules.

  40. 40.

    Tonal Crow

    December 15, 2010 at 3:56 pm

    Democrats should abolish the filibuster forthwith, without fear. Because no matter what Democrats do, the next time Republicans have a bare Senate majority, they’ll abolish the filibuster first thing.

  41. 41.

    Bruce (formerly Steve S.)

    December 15, 2010 at 3:58 pm

    @Alex S.:

    Yes, then it’ll all be up to the President to veto every bipartisany piece of garbage that HRH Lieberman and HRM Nelson sign on to. And we all know how much he loves having it all on his shoulders.

  42. 42.

    cintibud

    December 15, 2010 at 3:58 pm

    @Scott P.:
    Thanks – I see that the Dems did Filibuster a number of items but unfortunately that graph only displays numbers. I can’t tell if there were any real disasters that were averted because of a Dem Filibuster or if they were just used to protect pet pork projects from reformers.

    Still, it needs to go.

  43. 43.

    JGabriel

    December 15, 2010 at 3:59 pm

    @NonyNony:

    Well, yes. We should get rid of the Senate altogether. That was at the end of my post.

    Hmph, I missed that part on the first reading. Did you add it through the edit box after posting? Because that sometimes takes a few minutes to show up.

    If not, my apologies. I must have skimmed over it somehow.

    .

  44. 44.

    LongHairedWeirdo

    December 15, 2010 at 4:03 pm

    Here’s the thing. It’s not that we need to weaken the vote limit, but we do need something that requires work. So, the Dems shouldn’t have to be concerned about losing rights. I’ve seen some fine proposals that essentially require them to keep X senators on the floor while the Senate is in session, and preserves the filibuster, without risk to anything but one’s golf outings.

    So I don’t see any reason to have to fear “President Palin” or loss of majority. Just make it so a filibuster is no longer a painless process. Right now, it’s like telemarketing (or spam); do it if there’s even a hint of a possible benefit, because it costs you next to nothing.

  45. 45.

    Tonal Crow

    December 15, 2010 at 4:06 pm

    @patrick II: I agree, the filibuster is probably unconstitutional. The filibuster creates a conflict between Art.I s.5 cl.2 (“Each House may determine the Rules of its Proceedings….”) and the remainder of Art.I, which assumes that bills pass by a majority vote unless otherwise required. And that’s a majority vote of a *quorum” — a quorum being itself a majority of each house. Art.I s.5 cl.1. I don’t see that cl.2 gives Congress the authority to effectively override the quorum rule or the implied majority-vote rule.

    I think that rules of “proceedings” are intended to be procedural rules that permit orderly discharge of Congress’s duties, not rules that substantively change the balance of power explicitly (quorum rule) and implicitly (majority vote rule) established by the Constitution.

  46. 46.

    Hob

    December 15, 2010 at 4:11 pm

    @patrick II:

    The constitution calls for a simple majority to pass a bill.

    I don’t think that’s true. The Constitution is actually pretty vague on what it takes to pass a bill in either house of Congress. The only thresholds it specifies are:
    – a majority must be present to have a quorum (I.5)
    – must have 2/3 to expel a member (I.5)
    – must have 2/3 to override a veto (I.7)
    – confirmation of a replacement VP takes a majority (A. 25)

    It could certainly be argued that majority votes were implied simply because that’s the most commonly used definition of what voting means on any yes-or-no decision, but that’s not in the language of the Constitution. And it does explicitly give each house of Congress authority to set the rules for its own proceedings, except for those specific cases.

    [eta: Tonal Crow, the “implied” part is what I’m getting at. Is there actually legal precedent for that interpretation? Because I’m not sure how you can have “tension” between one thing that is explicitly stated and another thing that you’re just assuming.]

  47. 47.

    Zifnab

    December 15, 2010 at 4:19 pm

    What does the Senate expect to get done in the next two years? If Reid plans to fast track a bunch of judicial nominees and maybe pass some of the ’09 House bills unamended, I can see filibuster reform as a valuable tool.

    On the flip side, the Senate had a 60 vote majority – abet briefly. They could have crammed through legislation in bulk in those few months of majority. Instead, they sat on their hands, trying to make deals with obstructionist Republicans and recalcitrant pseudo-Dems.

    I don’t see any value in taking apart the filibuster rules if the Democratic Senators don’t have any intention of using their newfound power.

  48. 48.

    Tim

    December 15, 2010 at 4:20 pm

    AS IF the Dems would ever actually filibuster when they were in the minority.

    HAHAHAHAHAHAHAHA

    Which is why they should do away with it when they can. They don’t use it anyway.

  49. 49.

    shortstop

    December 15, 2010 at 4:22 pm

    I think we should leave “but the GOP will use this against us down the road!” out of any discussion of the merits of reforming or not reforming the ‘buster. Even if the filibuster isn’t altered at the beginning of the upcoming Congress, the GOP will still make getting rid of it completely the first order of business in the next Congress. Have we learned nothing these last few years?

  50. 50.

    Tonal Crow

    December 15, 2010 at 4:25 pm

    @shortstop:

    Have we learned nothing these last few years?

    Is this a rhetorical question?

  51. 51.

    mike in dc

    December 15, 2010 at 4:37 pm

    Abolishing the filibuster would not only enable smoother operation of the legislative process, it would create real accountability–when you win the majority, you get to pass the legislation you want…and be held accountable for it by the electorate if it turns out to be a bunch of awful crap. In the event of a GOP majority and WH, yes, they could try to ram through step 1 of social security abolition…but they’d also have a bunch of pro-lifers pushing them to ban abortion, too. And a bunch of gun nuts pushing them to overturn all gun control laws everywhere and let everyone open carry or concealed carry wherever they want. Basically, they’d pass a bunch of awful stuff, the left and center would get mobilized and go apeshit, and then their majorities would disappear.

  52. 52.

    shortstop

    December 15, 2010 at 4:39 pm

    @Tonal Crow: Of course, insofar as someone might be asking it of the Democratic caucus. But I was really addressing it to other commenters here and on other blogs.

    I keep having cigarette cravings this week, and I’ve been off the evil stuff for many, many years. I’d like to blame Congress, but I know it’s closet smoker Obama’s failure to use his bully pulpit that’s the real culprit.

  53. 53.

    Tom Hilton

    December 15, 2010 at 4:44 pm

    The absolute minimum they can do is shift the burden to the filibusterers: require 41 votes to maintain a filibuster, rather than 60 votes to break it. Make it so anyone who wants to thwart majority rule really has to work at it.

  54. 54.

    Odie Hugh Manatee

    December 15, 2010 at 4:44 pm

    @Zifnab:

    On the flip side, the Senate had a 60 vote majority – abet briefly. They could have crammed through legislation in bulk in those few months of majority.

    Yessiree Bob! Ol’ Landreu, Nelson, Byah and Company would have agreed to everything that would have come up!

    Now back to reality…

  55. 55.

    Tonal Crow

    December 15, 2010 at 4:45 pm

    @Hob: On the tension, the quorum rule *is* explicitly stated. If a mere majority of a house is enough to “do business”, Art.I s.5 cl.1, then it’s clearly enough to pass bills. That bills can then be passed by a majority of that majority is, I think, assumed by the Constitution’s framers. But let’s assume that they really meant (without saying) that, when there’s a bare quorum, bills must be passed by 100% of the quorum. That still permits passage by a bare majority of each house. When combined with the explicit rules on passage, such as 2/3rds of each house to override a veto, I think it’s pretty clear that the framers intended ordinary passage to require, at most, a majority of each house.

    But the Supreme Court has further held that a majority of a quorum is sufficient to pass a bill. U.S. v. Ballin, 144 U.S. 1 (1892). http://supreme.justia.com/us/144/1/case.html . See especially p.6, where the Court says:

    The other branch of the question is whether, a quorum being present, the bill received a sufficient number of votes, and here the general rule of all Parliamentary bodies is that when a quorum is present, the act of a majority of the quorum is the act of the body. This has been the rule for all time except so far as in any given case the terms of the organic act under which the body is assembled have prescribed specific limitations. As, for instance, in those states where the constitution provides that a majority of all the members elected to either House shall be necessary for the passage of any bill. No such limitation is found in the federal Constitution, and therefore the general law of such bodies obtains.

  56. 56.

    cintibud

    December 15, 2010 at 5:18 pm

    @Tom Hilton:
    This

  57. 57.

    azlib

    December 15, 2010 at 5:20 pm

    There is not 50 votes to change the rules in the Senate. If we could not get reform during one of the biggest economic meltdowns in 2009, I doubt it will happen now. Once the Republican obstruction became apparent, Obama should have used the bully pulpit to demand an end to the filibuster to get the kind of economic stimulus we needed then. He did not, which led me to believe he never understood the depth of the problem we were and are still in or knew there were not the votes to push filibuster reform. I doubt a majority of the Senate really understands the depth of our economic problem either.

    Also keep in mind there are more than a few of our fearless Dems which let others use the filibuster to keep from making uncomfortable or politically risky votes. When I was a on a city council in a previous life, a common theme around the Council was the phrase “I’m with you, but there is not the votes to get that passed”. More often than not that was code for “please do not make me bring this up and put me on the record on this issue, because it can be used against me in a future election”. Cowardly, but that is the way our politics rolls.

  58. 58.

    Hob

    December 15, 2010 at 5:27 pm

    @Tonal Crow: But everything you’ve said is about defining what a quorum is. That’s a completely different question than what percentage of votes is required to pass a bill. If the Constitution said that 60% was a quorum, it could still be the case that a bill could pass with 51% yea votes, or vice versa.

    I’m not a lawyer, but it sure looks like that Supreme Court ruling was saying “if the threshold is X%, then that means X% of everyone present as long as there’s a quorum, rather than X% of the full body.” Since no one had specified otherwise, parliamentary tradition said that X=50… but I don’t see how that means that a house of Congress couldn’t make its own rule that X=60.

    If the framers wanted to prevent Congress from using a non-majority system, why on earth did they give it broad authority to make its own rules and then not spell out that exception? “They specified 2/3 for a veto override; they must’ve meant 50% for everything else, otherwise why would they specify 2/3 for that one” is not a logical assumption; a veto override is an interaction between branches, so you could simply argue that the Constitution is always more specific in those cases because it’s concerned with checks and balances, while still granting really broad leeway for each branch to set its own rules.

    BTW I’m really not trying to argue against representative democracy here, just questioning whether the originalist argument is really clear-cut in this case.

  59. 59.

    Arclite

    December 15, 2010 at 5:42 pm

    I’d settle to reduce from 60 down to 55 for the filibuster.

  60. 60.

    Tonal Crow

    December 15, 2010 at 6:02 pm

    @Hob: Under your devil’s-advocate argument, the House could, for example, effectively disenfranchise state X by passing a rule that triggers a 90% vote requirement for any bill that state X’s Senator(s) voted for. Yeah, Art.I s.5 cl.2 doesn’t explicitly limit what rules each house can establish. But there’re rules and there’re rules. I’m pretty sure that cl.2 was intended to permit each house to establish procedural rules for orderly conduct of its duties, not to establish substantive rules that rejigger — for example — the balance between the houses (and between the federal government and the states) that the Constitution established.

    Also, the Constitution would be far larger (and less flexible) if the framers had exhaustively spelled out the limitations of cl.2 and other broadly-written powers.

  61. 61.

    thejoz

    December 15, 2010 at 6:26 pm

    The way I see it, if they don’t get the rules changed, they will get so little done as to guarantee another Republican shitwave next year.

    If they do, however, then maybe they can fire up the base just enough in order to get them out to vote.

    One can hope.

  62. 62.

    Just Some Fuckhead

    December 15, 2010 at 6:44 pm

    Filibuster reform will be nice but it won’t solve the problem that the Senate basically serves the oligarchy. Over 2/3rds of the senate are multimillionaires. The “poorest” 25 are about evenly split between the parties. Of those on the D side, many are Blue Dogs that faithfully serve the Corprotacracy. Of course, we already know who the Republicans, poor or otherwise, are serving.

    When the smoke clears, you might have one fifth of the Senate representing 98% of America and the other four fifths serving the interests of the 2% richest.

  63. 63.

    CalD

    December 15, 2010 at 6:52 pm

    I can’t see 51 of those cats doing anything…

    How about 50? (Biden gets a vote in that case.)

  64. 64.

    Hob

    December 15, 2010 at 7:16 pm

    @Tonal Crow: Not to beat this pseudo-horse to death, but– everything you’ve said strikes me as a good reason why the framers should have spelled out the simple majority requirement, which makes it really frustrating that they did not. I don’t think this is irrelevant, because I would really love for someone to make your exact argument (the filibuster is unconstitutional) in front of the Supreme Court and have them uphold it, but if your whole argument rests on what you assume the framers probably meant but didn’t say because then the Constitution would’ve had to be longer, that seems like a pretty thin reed. Especially with the Supreme Court we have now.

  65. 65.

    scrappy mcdougal

    December 15, 2010 at 8:03 pm

    if january 5th is the magical day, why didn’t they do it last year?

  66. 66.

    patrick II

    December 15, 2010 at 10:11 pm

    @efgoldman:
    But can the senate rules directly contradict other parts of the constitution? If the senate made a rule that it took 75 votes to pass a law, could it stand? If the senate made a rule that no black people were allowed to be in the senate chamber, could it stand?
    There is nothing more basic in the constitution than the rule of the majority. The senate filibuster rule is a pervision of the essence of our founding document.

  67. 67.

    patrick II

    December 16, 2010 at 12:28 am

    @Hob:

    Senator Robert Byrd:

    The first Senate, which met in 1789, approved 19 rules by a majority vote. Those rules have been changed from time to time . .. . So the Members of the Senate who met in 1789 and approved that first body of rules did not for one moment think, or believe, or pretend, that all succeeding Senates would be bound by that Senate. . . . It would be just as reasonable to say that one Congress
    can pass a law providing that all future laws have to be passed bytwo-thirds vote. Any Member of this body knows that the next Congress would not heed that law and would proceed to change itand would vote repeal of it by majority vote.

    As pointed out by Senator Byrd, It is clear from the very first actions of the senate, that majority rule was assumed and it both precedes and overrides senate rules.

    I might also add that there a time limit on debate in the first senate, but it was dropped because it was felt to be unneeded. The first filibuster did not take place until 1831. The prevention of the opportunity for bills to come to a majority vote was not even contemplated by either the writers of the constitution or the first members of the senate.

  68. 68.

    brantl

    December 16, 2010 at 1:26 pm

    @Clayton: Yeah! Let’s let the government stall with another 6 years of Republican’s “concrete swimming shoes” approach.

  69. 69.

    brantl

    December 16, 2010 at 1:36 pm

    @Pangloss: It would have hurt Americans more, but they would have remembered who tried to hurt them, if they’d actually gotten hurt, wouldn’t they? Feedback is necessary to any self-righting, self-correcting system.

    Not having a self-correcting system is how we got Iraq and Afghanistan.

  70. 70.

    brantl

    December 17, 2010 at 7:32 am

    @patrick II: Nothing overrides Senate Rules other than law.

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