Nuke the filibuster!

A majority of U.S. Senators wanted to include a public health care option in the Affordable Care Act.  Yet they couldn’t get it in.  A majority of U.S. Senators favored the Employee Free Choice Act which helps protect workers who want to organize labor unions from employer pressure and retaliation. Yet they couldn’t get it through.

Under Senate rules, it takes 60 votes, not 51, to allow a bill to be brought to a vote. Without the 60 votes, individual Senators have unlimited time to talk – “filibuster” –  and delay action.

Reform of the Senate is litmus-test issue.  It is an issue that overrides all other issues. Without Senate reform, no other meaningful change can take place.

While the use of the filibuster was once an emergency tactic used in unusual circumstances, it has now become routine means by which the minority party prevents the majority party from enacting its program.

It’s not just the filibuster.  The routine business of the Senate requires not just 60 votes, but unanimous consent, in order to proceed.  By threatening to withhold consent, an individual Senator can have any appointment put on “hold.”

Senate Majority Leader Harry Reid and President Obama accept this as normal.  They say that if the mean old Republican minority uses filibuster threats and “holds” to block their program, there’s nothing they can do about it except complain.

The problem is that the same rule which requires 60 votes to break a filibuster requires 67 votes to change the rule. Yet there is a solution.  It is what the Republicans first called the “nuclear option,” then the “constitutional option” when they were in the majority and the Democrats threatened to filibuster the Supreme Court appointments. Proponents of the “constitutional option” quote Section 1, Article 5, of the Constitution, which says “each House may determine the rules of its proceedings” and say that the Vice President, who presides over the Senate, may at the beginning of the new term propose a new rule to be voted up or down by the majority.

The Constitution specifies a two-thirds vote by the Senate only to ratify treaties, propose constitutional amendments, override presidential vetoes, expel members or impeach federal officials.  If the majority gives up its right on any other issue, it is because it chooses to do so.

Why don’t the Democrats get behind the “constitutional option”?  Why don’t they make an issue of the filibuster?  Why do they allow the minority to stymie their key programs?  One reason may be that they want the filibuster as a weapon in reserve when they are back in the minority.  Another is that there would have to be a reform of Senate procedures going beyond just the filibuster.  Otherwise the angry minority could put all of the Senate business on “hold.”

The United States has more checks and balances in its system of government than any other important democracy.  Under parliamentary systems, a Prime Minister is chosen by the majority party or a majority coalition in the legislature, and can normally expect to see his or her bills enacted into law.  When the legislature rejects an important bill, there normally is an election to choose a new Prime Minister.

Under the U.S. system, a bill must be passed by the House of Representatives, which is elected on a population basis for two-year terms, and then by the Senate, which is elected on a state sovereignty basis for staggered six-year terms, and then signed into law by the President, who may be of a different party, and then possibly be vetted by the Supreme Court.  We don’t need anything additional that is not in the Constitution.

Click on Fix the Senate Now for a filibuster reform web site. [Added 12/23/10]

Click on Senate Procedural Changes Needed to End Legislative Gridlock for the AFL-CIO argument against the filibuster.

Click on Decades Worth of Obstructionism for an article and chart confirming President Obama’s statement that there were more votes to break filibusters in 2009 than in all of the 1950s and 1960s combined.

Click on If Sessions wants to compare, we can compare for a report and chart on the increasing obstruction of judicial confirmations.

Click on  ‘The Intent of both proposals is to make the Senate more like the Senate’ for a discussion of two reform proposals.

Click on What Is a Hold? for a more complete explanation of how a “hold” works.

Click on So what’s up with “holds” in the Senate, anyway? for a more detailed explanation.

Click on Reid Floor Speech on Use of Filibuster for Senator Harry Reid’s speech in defense of the filibuster when the Democrats were in the minority.  He was wrong.  The Bush administration was entitled to an up or down vote on its judicial nominees, much as I would have liked to see them defeated. The Obama administration is entitled an up or down vote on its appointments and proposals, and so will be any future administration, Democratic or Republican.

The argument against the filibuster does not hinge on whether the Republicans have abused it more than the Democrats, although I believe they have.  It could easily happen that when the Democrats are next in the minority, they could be just as obstructive as the Republicans are now.  The question is whether in the Senate, a body in which Senators representing a minority of the population can outvote Senators representing the majority, a minority of that minority should have the power to block action. [Added 9/7/10]

Click on First Order of Business: Filibuster Reform for a proposal for limited filibuster reform.  It is unlikely to be enacted, in my opinion.  Since the Senate Democrats did not attempt to change the filibuster rules at the height of their power, an attempted change now would be seen as an act of desperation – which it in fact would be, although I would like to see them do it anyhow.  [Added 11/4/10]

Click on A Very Wonky Post About Senate Rules for an explanation of now 51 determined Senators could change the Senate rules any time they wanted to. [Added 12/17/10]

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5 Responses to “Nuke the filibuster!”

  1. Adequate number of checks vs. perils of getting rid of checks § Unqualified Offerings Says:

    […] Phil Ebersole argues that the filibuster is unnecessary in light of the fact that the US government already has more checks in the legislative process than most other liberal democracies in the developed world.  Certainly it is true that unlike most other rich, liberal democracies we have a truly powerful second chamber (indeed, a second chamber that is actually more powerful than the first chamber in many ways).  Unlike many countries we have an executive veto over legislation, and when the administration’s favored legislation is not passed we don’t automatically dissolve the legislature and hold a new election.  So, on paper, we already have abundant checks and balances relative to peers.  Moreover, our peers don’t seem to be that much worse off for lack of as many formal checks.  Sure, we can argue that we’re better off in some respect (or not), but at the very least the countries with fewer checks are hardly hellholes compared to us. […]


  2. philebersole Says:

    Unqualified Offerings is having a good discussion of issues raised by this post, with many more comments than on this thread.

    If you’re interested, you can link to them as follows:


  3. philebersole Says:

    Andrew Sullivan joined in the discussion on his Daily Dish web log.


  4. ZZMike Says:

    The filibuster has been around a long time – since the 1800s. Like most weapons, it can be used for good or ill.

    It’s one of the few ways there are of keeping really bad legislation from being passed.

    Like for example, the “public option”.

    “A majority of U.S. Senators wanted to include a public health care option in the Affordable Care Act. ”

    The People, however, are of a different mind. (The “Affordable Care Act” is hardly “affordable”, nor will it result in better health care all around.)

    “… “each House may determine the rules …”
    And so they do. Nothing unconstitutional about that.

    “One reason may be that they want the filibuster as a weapon in reserve when they are back in the minority.”
    No question about that. Let’s hope that happens quite soon.

    “The United States has more checks and balances in its system of government than any other important democracy.”
    In theory, that’s true. But all three branches of government are now controlled by Democrats – in other words, by Liberals – in other words, by Progressives – in other words, by Socialists.

    If there really were decent checks and balances, the monstrous health care bill wouldn’t have been rammed down our throats, unread by anyone – including those who voted for it – voted on in the middle of the night.

    Speaker Pelosi: “We’ll just have to pass it to find out what’s in it”.

    Here’s another of the many things that majority gets us:

    Troop Funding Bill
    “… the Democrat majority added an amendment with $17 billion in new domestic spending to a critical war funding and disaster assistance bill.

    Nearly half spending in the emergency war supplemental is unrelated to the ongoing wars. ”

    If anything, we need the filibuster more than ever.


  5. philebersole Says:

    The reason the Affordable Care Act is such a tangled mess is the necessity for compromises to attain 60 votes instead of just 51 votes. With a 51-vote majority, it would have been possible to pass the public option which President Obama favored.

    From the standpoint of a Republican, the Affordable Care Act may be a lesser evil. But the reverse of the coin is that it will be damn near impossible to repeal, since it will be as hard for the Republicans to muster 60 votes as it was for the Democrats.

    One of the evils of the present cloture system is that it makes it easy for political leaders to evade responsibility. President Obama and Senator Reid can say they wanted a public option, but the 60 votes weren’t there. Senator McConnell, if the Republicans get back into the majority, can say they wanted to repeal the Affordable Care Act, but the 60 votes weren’t there.

    All this of course assumes that the Democrats will be as assertive as the Republicans have been. I hope they will be, but I’m not confident. The best case scenario from my standpoint is that the Democrats be as obstructive in the minority as the Republicans were, because the Republicans then will invoke the “nuclear” or “constitutional” option and we will then have a functioning legislative body.

    The Republicans are a disciplined fighting party, who advance their program by every lawful means. I respect them for that, and wish the Democrats would follow their example.

    Unfortunately, the time to have changed the cloture rule was at the start of the current Congress. Making a change in the next Congress, after the Democrats will probably have suffered a loss, will be seen – correctly – as an act of desperation. Even though a change would be a right on the merits, they might not want to look bad – something Democrats worry about more than Republicans do.


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