(Fili-) Bust A Move

***UPDATE, 1/6 1:30PM*** Oops…I was not aware yesterday when I hurriedly posted Greg Sargent’s overview of what the filibuster reform package contained that it did not include a reduction in the number of votes required to invoke cloture (overturn the filibuster). In my haste, I’d been assuming that since the abuse of the sixty-vote threshold was literally the very raison d’etre for the concept of filibuster reform to begin with, if Democrats were going to seriously offer any proposal at all, it would of course include such a thing. I should have known better, obviously. My bad. To repeat: the package offered by Udall, et. al. yesterday in the Senate does no such thing.

In other words, while they may have made the filibuster process more transparent, accountable and understandable for the average person, Democrats actually did nothing to reduce the abusive minority party’s ability to simply block any and all legislation coming through the United States Senate. However, as Ezra Klein and Rachel Maddow Show fill-in host Chris Hayes wryly noted at the end of this clip from last night’s program, Democrats did manage to accede to the GOP’s lone demand on filibuster reform (other than that there be none whatsoever, thankyouverymuch), which was: they wanted a guarantee that they would be able, when in the minority, to offer amendments to any legislation at all times. And the Democrats gave them one. Ah, Democrats. They really do try hard not to suck, you have to give them that. Sigh…Watch it here.

***UPDATE, 1:30PM*** (via Greg Sargent at the Washington Post), here’s the filibuster reform package being proposed by Democrats. Check it out. It’s not bad, though it could have been stronger by not giving credence to the GOP red herring of not being able to offer amendments. Still, a good package, all in all. Now, to see if they can actually get it done…never a sure thing with our infrequently vertebrate modern Democratic party…



Today starts the 112th Congress of the United States. They change numbers every two years because although Senators are elected for six-year terms, the House is only elected for two years, and even in the Senate, at least some of the Senators are up for re-election every other November (states are staggered; we don’t vote for all 100 Senators every six years).

As we were all in our final frenzy of pre-Christmas and New Years madness, you might have noticed that it seemed like the last Congress, the 111th, was generating an awful lot of headlines for getting stuff done – or at least talking about stuff – during that same time period from about late November right up through the last few days before Christmas. Did you wonder why that was the case? I mean, sure, it’s human nature to procrastinate. But that isn’t why the 111th Congress seemed both so unusually productive at the end of the year and so maddeningly slow previously. The reason for both those occurrences can be summed up in one word: leverage. Over the last two years, Republicans have used a procedural maneuver in the Senate called the filibuster to jam up everything from cabinet and judicial nominations to (literally) nearly every piece of legislation proposed by either Democrats in Congress or the White House. The reason the lame-duck session from November to December was so productive was that Harry Reid, as majority leader, had the power to say when the Senate was in recess. Thus, if he held the Senate session open as it got closer and closer to Christmas, Republicans would be the ones put in a jam: they could leave…but then Reid would have enough votes to pass bills the GOP didn’t want because there wouldn’t be enough Republicans to filibuster them. So they were forced to stay, as it got closer and closer to Christmas. When Reid looked like he might be able to keep the Democrats there right up through Christmas eve – and bring them back again right after – the GOP was forced to let some nominations, and some legislation, move. That’s the only reason.

When the Democrats retook both houses of Congress in 2006, it was a shock to the Republican system. First, no one on the GOP side – or even much of the media – believed the Democrats would make gains that large. Both the media and especially the GOP “misunderestimated” the depths of frustration and ill-will the last several years of complete Republican governance under George W. Bush had generated in the American voters. Karl Rove himself, considered by many to be something of a wunderkind, a sort of Svengali of electoral success, was famously caught on tape by NPR’s Robert Siegel, smugly predicting that there would be no significant losses for the GOP in the upcoming midterms of 2006 (audio here). Yet, despite Rove’s laughable bravado (not to mention his wildly inaccurate-verging-on-reality-denying prediction), Democrats did indeed win large majorities in both houses of Congress that fall of ‘06. Rove’s boss, Dubya himself, famously called it “a thumping.”

The American people weren’t surprised: they’d soured on Bush’s endless wars, his extra-legal maneuverings, his reckless fiscal positions and his administration’s smugness long ago (beginning not long after his 2004 re-election, in fact). Yet the GOP’s primary reaction to the sound drubbing they took in November of 2006 was not contrition, nor humility, nor was it simple surprise. It was disbelief. From the moment before the election to the next day’s press post-mortem conferences, and from Bush to Rove to most high-ranking Republicans, no matter how many polls they saw, no matter how much talk they heard, they just never really believed they were going to lose. And once it became clear they had lost, they still didn’t really believe it. Bush’s face in the above article communicates one word: disbelief. Rove’s pre-election bluster speaks of only one thing: certainty. Why was the GOP so thoroughly convinced, despite so much publicly available evidence, that they were going to be basically OK after November 2006 (and why were they so correspondingly shocked to discover they’d been wrong)? Because – and this is one of the main differences between not just Democrats and Republicans, but between the conservative and liberal mindsets more generally – they truly believe, in their heart of hearts, that they are the “real Americans” (and others are not).

When Sarah Palin went to the very Republican, very white town of Greensboro, NC, in the heat of her failed shot at the Vice Presidency and said (without apparent self-consciousness or any sort of sense of having made a misstep) that she believed “the best of America is in…these wonderful little pockets of what I call the real America,” and that she relished “being here with all of you hard working very patriotic, um, very, um, pro-America areas of this great nation,” she was merely echoing a long-standing GOP meme: Republicans are real Americans, others are not. It doesn’t matter how densely-populated the coastal cities become, how many voters they contain, or what racial, religious and political makeup they display, they’re merely “coastal elites,” not “real Americans.” Many people in the Democratic party and on the left in general have long felt this sort of rhetoric to be little more than (admittedly offensive) playing to the base on the part of Republican politicians; trying to rally the troops before an election to achieve as many victories as possible. And of course, that’s part of the reason for saying it. But what should be clear by now to any casual observer of the last decade – and especially the last four years of it – is that these people, Republicans, from the ordinary voter on the street to the highest halls of power, truly believe it. They’re not just doing it for show, or for votes. They mean it.

So what happens to such people, with such a mindset, when reality smacks them in the face, and they actually do suffer significant losses? Losses that are so significant that the only reasonable conclusion to draw from them is that they comprise a pretty thorough repudiation of GOP ideas and governance (at least the current incarnation of it)? After a while, their initial shock and disbelief fades into a grudging acceptance of the facts, but only because it must. What never fades is the certainty that they are right (pun intentional), or that they and their like-minded fellow-travelers are the rightful heirs to the American revolution and sovereigns of this land. What happens when a party full of people who think thusly goes from majority status, controlling both houses of Congress and the White House to minority status, overnight?

They become sore losers and obstructionists. Part of believing that you have an actual right to something is the converse belief that no one else has a right to take it away from you. And when the rules of whatever structure such people are within require that they relinquish their hold on what they believe is rightfully theirs, they can often begin to behave in ways that neither they nor anyone else would tolerate in others. Like children, they spitefully try to “take their ball and go home”; try to ruin the “game” if they cannot be allowed to be the captain (or perhaps to win). Only, as everyone already knows (at least in the abstract), governing isn’t a game; it’s a grinding, complicated process of trying to do as right as you can by all people, including (often) people whose interests are in conflict with one another. Governing is certainly not the place for childish tantrums, nor for people whose sense of anger and resentment at having something they believe to be rightfully theirs in perpetuity taken away leads them to place recovering that thing as their highest goal, above comity, above progress, above the common good, above common sense: above everything.

Unfortunately, that is exactly how the GOP has been behaving since 2006, and when the country turned their backs on Republicans for the second time in a row, electing a black Democrat and even greater majorities in both houses of Congress in 2008, it solidified into actual party strategy. The Republicans, since 2008, have decided that their top goal is to simply oppose virtually any and every initiative undertaken by President Obama and/or their counterparts in the majority in Congress. Being so numerically far out of power, however, has presented them with an unusual challenge: how to exert what they still fully believe to be their “rightful” dominance in the halls of power when they control neither the White House (with its very powerful veto pen), nor either house of Congress.

They found their means to potentially achieve their goal in a Senate rule called the filibuster.

If you’re someone whose eyes glaze over anytime someone starts talking about (or trying to explain) arcane Senate procedural rules, well, that probably makes you more sane (or at least more sensible) than those of us who eat it up. For you, I’ve created a (fairly) short primer on how the filibuster works. I tried to keep that tutorial pretty non-partisan, since it’s quite true that both parties have utilized it since its inception, sometimes notoriously. But one thing that a few of the more-perspicacious observers have been pointing out lately is just how badly the filibuster has been abused by the GOP over the course of the last four years. This chart is from almost exactly a year ago – and things have only gotten worse (especially in comparison to previous Congresses) since then:

I was traditionally a fan of the filibuster. Like many people, I considered it an important check against the trampling of majority rule. If the Senate operated no differently than the House, there wouldn’t be much need for a Senate. However, like many times in other areas when certain rules or loopholes have been exploited by someone to fundamentally alter the way the procedure of something was set up to function – and has traditionally functioned – the rules need to be changed to prevent a single individual or small group of people who are apparently OK with the idea of bringing the entire process to a standstill from doing severe damage to the entire enterprise. In my mind, that goes double when the entire enterprise is something as important as the functioning of the government of our country.

The Republican party made a choice in 2008 (probably even earlier) that they were going to simply put their procedural feet down in the Senate by filibustering literally everything that the Democrats proposed. Their goal, apparently, was to make it so difficult for Obama and the Democrats to get anything done that it would appear to voters who might not be paying very close attention to the inner machinations of the process as if the Democrats either weren’t capable of getting anything done, or didn’t really want to do many of the things they’d all (including the President) said they would address. Either way, the GOP figured, voters who voted for change in 2006 and 2008 might, if they focused more on the concerted GOP propaganda effort aimed at spinning Democrats as ineffective and wasteful spenders instead of focusing on why things weren’t getting done, wind up assuming a “pox on both your houses” stance, and taking it out on the party in power.

Sadly, this appears to have worked, somewhat. Last November, voters overwhelmingly handed the House back to the Republicans. The first mid-term after a President takes office usually results in a loss of Congressional seats for that President’s party. It’s sort of like a natural compensating mechanism on the part of voters, who often appear to prefer divided government rather than one-party rule. By the last couple of years of the Bush administration, the voters were so full of buyer’s remorse over not just Bush but the Republican control of congress that they swung completely the other way. This time, in 2010, voters appeared to return to their more traditional stance of keeping the relative power of the parties in balance. Democratic losses in the Senate were significantly less than in the House, with Democrats still retaining a majority.

But the damage has been done: the incoming GOP majority in the House, flush with their recent success and convinced more than ever that the results of this election (as opposed to those last two) reflect the true will of the American people that they, the GOP, are the party that ought to be in power, rightfully. What are they proposing to do with all this power? Darrell Issa, incoming chair of the House Oversight and Government Reform Committee, is rumored to already have over 500 subpoenas ready to go, investigating an entire galaxy of Republican talking-points about the Obama administration. I’ve not seen the list – I don’t think anyone outside Republican leadership has – but we know for sure, from some of Issa’s own public statements, that on the list of things he’d like to use House time and taxpayer money to investigate will be (no, I am not kidding) ACORN, the non-governmental community organizing group which was slandered by Andrew Breitbart and James O’Keefe in their heavily-doctored videos which ultimately resulted in a cowering Congress voting to de-fund the organization, effectively disbanding it. Let me repeat that: ACORN does not exist anymore in the functional sense…yet Issa will be spending his time and YOUR money – at a time of 10% unemployment, two wars and fiscal uncertainty like we’ve not seen in eighty years – investigating a defunct organization.

Are you starting to remember the Clinton years now? If not, you will soon.

However, in the midst of all this triumphal, celebratory GOP chest-thumping and subpoena-issuing, there exists, today, the ability for the Senate to rectify one of the worst imbalances out there; arguably the one which helped more than anything else to turn off voters or sour them on the Democrats: the misuse of the filibuster. The Senate, far more than the House, is a place bound by tradition and precedent, almost as much as it is by the constitution or its duty to pass legislation. The filibuster, interestingly, is not found anywhere in the constitution. It is a Senate rule which evolved over time, and has now solidified into a tradition, a precedent. The constitution does say that “Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member.” Over time, in the Senate, this has come to mean that whenever a new Congress is seated (which usually will include at least one new Senator), the Senate can opt to set its rules for the term on the very first day of the new session. The Senate being what it is, this isn’t done often, except to re-adopt the rules from the previous Senate. Though the Constitution itself doesn’t mention anything about rule-changes happening only on the first day of the new session, this is the tradition that has evolved.

But that day is today, Wednesday, January 5th. Even more importantly, the rules changes, since they are procedural, are not subject to filibuster. That means that the Democratic majority in Congress today, right now, could, on a simple 51-vote majority (or even fifty-plus-Joe Biden), vote to alter or even abolish the filibuster. I’m not in favor of the latter; as I said previously, I think that it prevents the danger of trampling of the majority, when used sparingly as it was intended to be used. But for the better part of four years now, the greater danger has been not the trampling of majority rule, but – due to the de facto sixty vote threshold the Republicans have used the filibuster to impose on virtually ALL legislation – the trampling of minority rule. Nowhere else in the world, outside of dictatorships, does 41 votes trump 59 votes consistently. Nor should it in the United States Senate. I urge you STRONGLY to call your member of Congress today, if you are in a Democratic state, and urge them strongly to vote to put limits on the filibuster. All Democratic Senators recently sent a letter (over Christmas) to majority leader Reid, urging him to take up filibuster reform on the first day of the new session – today. That means they’ve been just as fed-up with the Republicans’ ability to throw sand in the gears so effectively using this tactic over the past term. Your Democratic Senators are ready to take this step, despite the howling that will ensue from the GOP (as well as certain sectors of the media and the punditocracy who are enamored of the “deliberativeness” of the Senate). We need to push them. Call your own Senators, and especially call Senator Reid. This needs to happen, especially so because of the change of power in the House. If Democrats don’t summon the courage to do this now, I can’t see when the next time they will do it might be. If the filibuster stays intact after today, the GOP leadership will know for certain that they will pay no price for continuing on with this government-busting, progress-wrecking agenda. They will continue, in this Congress and future ones, to use this tactic, perhaps even more baldly and boldly than ever, because they will know that a) it works and b) they will not pay a price, either from the voters or from the Democrats, for doing so. Don’t let that happen. Call your Senators today.