Tag Archives: filibuster

The Founders And The Filibuster

Among the many forgotten lessons of America’s past is the abysmal failure of the nation’s first constitution, the Articles of Confederation. Thanks to the widespread absence of effective civics instruction, much of the public is unaware of the very existence of America’s first effort at nation-building, let alone the reasons that initial effort failed.

The Articles had numerous flaws–mostly attributable to the reluctance of the colonies to cede authority to a central government. Probably the best-known weakness of that first effort was the inability of the new central government to levy taxes. The central government could ask for revenues–for example, monies to retire debt amassed during the Revolutionary War–but if a state didn’t want to pay, it didn’t pay, and the federal government could do nothing about it.

The lack of a dependable revenue stream wasn’t even the worst of it. Under the Articles, any changes to the structure or operations of government needed a unanimous vote of the 13 colonies–and most other policies required the concurrence of a super-majority. Those provisions made governing impossible. When the Founders met in Philadelphia to replace the fatally-weak Articles with the Constitution, changing that unworkable super-majority requirement was  high on their “to do” list.

What we know of that history and the Founders’ antagonism to government by super-majority should inform our approach to the current iteration of the Senate filibuster.

Ezra Klein recently hosted Adam Jettleson, a longtime Senate staffer, on his podcast, and reported their conversation in a column for the New York Times. Jettleson pointed out that one of the biggest misconceptions about the filibuster is the idea that it promotes bipartisanship.

In fact, it does the opposite because it gives the party that’s out of power the means, motive and opportunity to block the party that’s in power from getting anything done. And when the party that’s in power doesn’t get anything done — when voters see nothing but gridlock from Washington — they turn to the party that’s out of power and try to put them back in office.

Republicans are well poised to take back majorities in both the House and Senate — all they need is a handful of seats to do so. So they have every rational, political incentive to block Biden from achieving any victories. A program that would cut child poverty massively would be a huge victory for Biden. And the ability for Biden to pass it on a bipartisan basis would be a huge victory for his campaign promise to restore bipartisanship and unity.

Jettleson reminded listeners that the Framers had anticipated this very situation. They identified this huge drawback with supermajority thresholds in 1789, when they had direct firsthand experience with the Articles of Confederation.

In Federalist 22, Alexander Hamilton addresses this misperception head-on. He says, “What at first sight might seem a remedy,” referring to a supermajority threshold, “is in reality a poison.” You might think it would cause compromise, but really what it does is it provides an irresistible temptation for the party that’s out of power to make the party in power look bad.

As Klein observed, bipartisanship is something the majority wants, but the minority has no incentive to give–something  Mitch McConnell certainly understands. During the first years of the Obama administration, McConnell knew he could win the majority back by sabotaging its ability to govern–that the majority party will inevitably get the blame for gridlock, no matter how unfair that may be.

The mischief being done by the current iteration of the filibuster has become obvious. It continues to prevent the Senate from functioning properly–for that matter,  as Jettleson documents in his recent book, “Kill Switch,” it pretty much keeps the Senate from functioning at all.

A mountain of evidence suggests that it is long past time to get rid of the filibuster.

The question, then, is why Democratic senators like Joe Manchin and Kyrsten Sinema continue to defend it.

What’s Next?

In a recent New York Times op-ed, Thomas Edsall asks a question that is rapidly becoming more pressing: what happens after the election?

It’s a question we really can’t answer until we know not just who has won the Presidency, but how the transition has been handled and–far more important–who will control the Senate.

Although “what now?” depends upon currently unknown election returns, we can–actually, we should–consider a variation of that question. What ought to happen next?

My own concerns revolve around the inevitable splintering of the Democratic Party into its factions. One of the problems with single-party dominance (or in this case, single-party sanity) is that reasonable people holding very different views all end up in the non-crazy party. Democrats have never been ideologically monolithic; these days, thoughtful conservatives, liberals and leftist activists are all Democrats because their only other options are to join a cult (the contemporary GOP) or vote for a third-party candidate (essentially flushing their votes).

My most fervent hope–assuming Democratic control of the Senate as well as the House and the White House–is that leadership will immediately move to implement policies on which there is broad consensus: rolling back the roll-backs of environmental protections; passing H.B. One–the broad reform of electoral rules that passed the House by a massive margin and languished (along with everything else Mitch McConnell touched) in the Senate; ending tax policies that soak the middle class while allowing the rich to evade paying their share; re-instating DACA and instituting humane immigration policies.

There are others, and they should all be introduced and passed as expeditiously as possible.

Noted political scientist Theda Skocpol believes the Democrats will hang together; she tells Edsall that, in the event of a Democratic Senate majority, especially with a cushion of 2 or 3 votes, she

does not foresee any acute internal conflicts, because there will be so much to do in a pandemic and economic crisis,” adding, “I think joint approaches will not be hard to work out: voting reforms, expansion of Obamacare with a strong public option, college costs help for lower income and lower middle class, robust green jobs investments, etc., etc.

I hope she’s right.

Other measures that ought to be taken–preferably, within the first hundred days–include eliminating the filibuster and expanding the number of federal judges. If–as is likely–Judge Barrett has been confirmed in a departing f**k you by McConnell, the number of Justices on the Supreme Court should also be expanded. (Actually, according to the Judicial Conference, that should be done even if, by  some intervening miracle, her nomination fails). But what should be done and what will occur are two different things, and opinions on both the filibuster and the approach to the courts divide the party’s moderates and progressives.

“What’s next” is, of course, a broader question than “what policies should Democrats pursue?” Edsall’s column is concerned less with policy and more with politics. He quotes a political scientist for the rather obvious observation that it’s easier to unite against something than for something, a truism that doesn’t bode well for continued Democratic unity. He also tackles the less obvious–and far more important–question “what happens to Trumpism” if, as seems likely, Trump loses?

Rogers Smith–another noted political scientist–thinks that a loss for Trump won’t defeat Trumpism.

Trump has built a new right populist coalition that has more electoral appeal than the full-tilt neoliberal, moderately multicultural economic and social positions of the prior Republican establishment. It has plenty of reasonably charismatic youthful champions. Its leaders will avoid the crude bullying and rule-flouting that Trump displayed in the recent presidential debate, and they’ll certainly try to avoid Access Hollywood-type scandals. But otherwise they will carry the Trump right-populist movement forward.

The “Trump movement” is essentially racist, theocratic and misogynistic. So long as it remains a viable, non-fringe element of American political life, the “American experiment” is at risk.

Whatever is “next,” we probably aren’t yet out of the woods.


The Republican Voter, Again

A couple of days ago, I posted excerpts from an article suggesting that the disasters that define our current civic reality aren’t primarily attributable to Trump, appalling as he is, but to the voters who form the base of whatever it is the Republican Party has become.

Since then, I have continued to encounter evidence confirming the accuracy of that diagnosis.

Exhibit One:  In the run-up to the Republican convention, an event presumably intended to persuade people to support the party, convention planners enlisted the entitled, bigoted St. Louis couple–the ones who brandished guns and threatened Black Lives Matter protesters marching past their mansion– to appear and publicly affirm their support for Trump.

I can’t think of speakers more likely to offend viewers who don’t display Confederate flags or have swastika tattoos.

The choice of the St. Louis couple underscores the point made by an opinion writer in The New York Times, who has concluded that “Trumpism” is the current GOP. As he says, even if  Biden wins and Trump leaves office peacefully — two big ifs — Democrats will still confront a Republican Party that is the party of Donald Trump.

In 2016, Mr. Trump didn’t change the Republican Party; he met it where it was. The party had been ready for him for years: In 2012, the congressional scholars Thomas Mann of the center-left Brookings Institution and Norm Ornstein of the conservative American Enterprise Institute wrote, “The G.O.P. has become an insurgent outlier in American politics.” More recent studies, including by Pippa Norris of Harvard, have confirmed this assessment. In a brief summary of her research — which compared the U.S. Republican Party “with other major parties in O.E.C.D. societies” — she found the G.O.P. “near far-right European parties” that flirt with authoritarianism, like the Polish Law and Justice of Poland or the Turkish Justice and Development parties.

This is not a party poised to pivot toward moderation — even in the face of an electoral landslide loss. The inevitable calls for reform (like the party’s abandoned “autopsy” report after the 2012 election) will yield to the inescapable gravitational pull of the party’s own voters and the larger forces dominating our politics.

The author, one Adam Jentleson, says that the GOP is not only unlikely to moderate in the wake of a defeat,  it is likely to turn to reactionary politicians like Senator Tom Cotton of Arkansas. (You will remember Cotton for his despicable attempt to sabotage President  Obama’s nuclear negotiations with Iran.)  If Trump loses, Cotton is evidently seen–along with Tucker Carlson(!)– as a leading contender for the 2024 Republican nomination.

Jentleson says the “way forward” is to recognize what the Republican Party has become. That means ignoring them and working to deliver the results Americans want and need.

I agree. Assuming (fingers crossed) the Democrats take the Senate in November, they should focus on restoring checks and balances and passing long-bottled-up legislation. That will require eliminating the mechanisms that have allowed the Senate GOP to stonewall, obstruct and play partisan politics.  As Jentleson writes,

Sure, invite Republicans to participate constructively in the legislative process, but take away their ability to scuttle it.

To this end, it is encouraging to see Mr. Biden shifting from his staunch opposition to reforming the filibuster, whose modern iteration is what has allowed Republicans to raise the bar for passing most bills in the Senate from the majority threshold the framers set to the current 60-vote supermajority.

I have written before about the way the filibuster has been changed over the years; it’s no longer the process depicted in “Mr. Smith Goes To Washington.” As Jentleson writes,

The Republican Party is now an even more hopeless tangle of pathologies than it was back then. If Republicans choose to take personal responsibility for unwinding themselves and contributing productively to intelligent solutions, they are welcome to do so. But Democrats cannot bet the future of the country on it.

He’s right, of course. But that leaves us with a far more troubling dilemma: a two-party system in which one party has morphed into a cross between bat-shit-crazy conspiracy theorists and a fascist cult.

Pushed Too Far

Remember the old comic book ad in which a bully kicks sand in the face of a skinny guy, and the skinny kid takes a Charles Atlas course, muscles up, and comes back to flatten his tormenter?

I think Harry Reid took that course!

Yesterday, Reid invoked the “nuclear option,” changing the Senate’s rules in order to permit most Presidential nominees to be approved by a simple majority.

If you are old enough, you may remember when such majority rule was the rule. The filibuster–a procedural mechanism devised by the Senate itself and found nowhere in the Constitution–was until recently employed only rarely, and usually by a Senator who actually filibustered, a Senator who talked until he could no longer hold out. During the George W. Bush administration, Democrats used it more frequently, but it was only with the election of Barack Obama that things got seriously out of hand.

As media reports have confirmed, early in the Obama Administration, Congressional Republicans decided to block any and all measures coming from the White House. The merits of the proposals, the bona fides of nominees, the desires of the electorate–none of those things would matter. And they would no longer bother to actually filibuster–they’d just say “we’re filibustering, so you need sixty votes” to pass this bill or confirm this nominee.

There’s a Yiddish word for that: chutzpah. 

The GOP’s goal was simple: deny this President any victory, no matter how small, no matter how good for the country, no matter if the proposal had originally been their own.

Case in point: Lawyers and judges have pleaded with lawmakers to fill the mounting  and unprecedented vacancies that have slowed justice to a crawl and brought business to a halt in many of the nation’s federal courts. Legal organizations and the ABA have sounded the alarm. No matter. Senate Republicans have kept focused on their primary mission: say No to this President.

They finally pushed the Democrats too far.

Reid’s reluctance to “go nuclear” has been clear for some time. But it  finally became obvious even to him that the alternative was another three years of stalemate, another three years of national drift, of getting virtually nothing done.

The Constitution requires a simple majority vote to pass bills and confirm most nominees. Except in a few specific instances, it does not require a super-majority. And yet, for the past five years, the GOP’s constant abuse of the filibuster has effectively required a super-majority for even the most mundane and previously uncontroversial actions.

The Party of No has used the filibuster to throw sand in the gears of the Senate–as a way to refuse to do the people’s business so long as Obama occupies the White House. Senate Republican leadership made a calculation: they would stand united to ensure the failure of the hated (black/Kenyan/Muslim) Obama, and the Democrats wouldn’t have the balls to go nuclear.

It was a reasonable bet, but it turned out to be wrong.

The skinny weakling grew a pair.


Balance of Power

The Newtown parents have recently reminded us that ordinary citizens with a compelling story can move policy, even in Washington. They were able to do what even the President could not: prevent a filibuster by Republican Representatives intent upon blocking action. The filibuster threat wilted in the face of bereaved mothers and fathers–a different kind of lobbyist from the pin-striped suits with whom they are familiar.

There are many lessons we might draw from this episode, but something Dana Milbank wrote in a column about the parents struck me. He noted that “Hockley [one of the mothers] and her peers succeeded precisely because they weren’t the usual actors following the usual script. ‘At the start of the week I didn’t even know what a filibuster was,’ Hockley told me Thursday beneath the cherry blossoms outside the Hart Senate Office Building.”

And therein lies a lesson for us all.

I don’t know how many citizens have no idea what a filibuster is, or how it has been used and abused. We know that only 36% of Americans can name the three branches of government; if I had to guess, I’d wager fewer than 10% could explain the filibuster. Could a population that knew the basic structure of our government, a citizenry that actually followed events in the nation’s capital, change the nation’s trajectory? Could they marry righteous wrath to informed participation, and end the petty game-playing and toxic power struggles that increasingly characterize our government?

The Newtown parents had to understand the filibuster in order to prevent one from blocking the action they supported.

Knowledge really is power. No matter how uneven the contest between ordinary citizens and moneyed interests, people armed with information and determination can make a huge difference.

When the only people who understand the system are those who use it to their own advantage, however, it’s no contest.