Friday, November 20, 2009

Senate Showdown Looms, On the Virtues and Vices of the Fillibuster, Is the GOP Tide Coming?, Annoying Things

The Vote to Get to a Vote to Start Debate on Whether to Vote
Well, we are finally going to get this thing moving in the Senate, sort of.

Majority Leader Harry Reid has scheduled a critical vote for Saturday night. It's a vote to begin debate. Well, not even quite that. It's a vote to end a filibuster against starting debate.

Let me try to explain. In the Senate, any member who feels like it can try to filibuster anything, with 60 votes halting a filibuster. Opponents of Senate health care legislation have made it clear that they will use ever tactic available to them to stall the process, so they are going to filibuster the motion to START debate on the health care bill. This means that Harry Reid will need 60 votes to invoke cloture (stop debate) on the motion to START debate.

It appears reasonably likely that the Democratic and Democratic-leaning Independent caucus of 60 will hold together to get the debate started. Democrats with misgivings about some of the provisions, such as Ben Nelson, Mary Landrieu and Blanche Lincoln appear to be hinting that they will fall in line. Independent Joe Lieberman is on record saying he will vote to start debate but will oppose a final bill containing any sort of public option. It appears that there is a near zero chance of any GOP support to break the filibuster.

But, of course, this is just the start of the fun. Then, each amendment to the bill must be debated, again with the potential for a filibuster on each and every amendment. Then a filibuster will have to be broken to get to a final vote on the bill, a bill passed, the bill melded with the House bill that has already passed in conference committee and the whole elaborate dance of filibusters around starting and stopping debate will have to happen again after the final bill (presumably) passes the House.

Tired yet?

Truth is that this vote is not really all that crucial. Not breaking a filibuster doesn't kill the bill, it simply sends Reid and company back to the drawing board to try to find a new way to get 60 votes. And a win isn't that great for the DEMs either -- after all, Nelson, Landrieu, Lincoln, Lieberman, Bayh, etc. all still have to be satisfied with the final product all while holding the liberals together.

Expect many weeks of test votes, filibuster votes and confusion to come. If Harry Reid somehow actually pulls this off, I will take back everything I've said about how ineffective a leader he is. But that's still a big "if".

Is the Filibuster a Good Thing?
It comes up almost every time power changes hands in the Senate -- a debate about the benefits and problems with the current Senate filibuster law.

First, a history lesson. The filibuster is NOT, contrary to the belief of some, a part of our constitution. Our constitution is pretty lean on specifics around the U.S. Senate. Pretty much all it says is that there will be 2 senators from each state, that senate terms will be 6 years, that Senators have to be 7-year U.S. citizens who are at least 30 years old, that the Vice-President is President of the Senate and breaks tie votes, that the Senate has power of advice and consent over appointments and is one of the two bodies that pass laws. There are a few more specifics (specifically enumerated powers, appointment by the state legislature later changed to popular election, etc.), but those are the basics. Not a word about a filibuster or super-majority.

The filibuster DOES have a long history in the Senate, which has always structured its rules to be a more conservative (in the sense of change resistant) than the House. In olden times, a real filibuster required a filibustering Senator to actually stand on the Senate floor and speak for as long as he intended to keep the filibuster up (see Mr. Smith Goes to Washington for some romanticized historical perspective.)

In 1919, in an effort to block a single rogue senator from derailing major legislation, the Senate adopted a new rule that two thirds of the Senate could vote to cut off debate from a filibustering few. In 1975, the number of votes required to kill a filibuster was reduced from two thirds to 60%, which is where it stands today.

In decades past, the filibuster was used selectively. Robert Bork was not filibustered as a nominee, nor was Clarence Thomas. Filibusters were reserved for special moments when the minority felt an imperative to obstruct.

This started to change in 1993, when the GOP staged a filibuster against President Clinton's small stimulus bill. But even the GOP of the early 90s was somewhat restrained -- they did not filibuster the Family Medical Leave Act, for instance.

When George W. Bush came to office in 2001, the filibuster became even more prevalent. Democrats started using it to block judicial nominees whose philosophy that they opposed, where the tradition had been to restrict such filibusters to judges deemed unqualified. This infuriated Republicans who threatened a "nuclear option" of completely doing away with the filibuster (although it was unclear if the vote to eliminate the filibuster, could itself be filibustered.) This talk died down after the "Gang of 7" moderate Senators, including then-moderate John McCain brokered a deal to let some nominations through and let other filibusters stand.

But 2009 has ushered in a new era for the filibuster. The GOP has used the filibuster more this year than in any previous congressional year, attempting filibusters on virtually every piece of legislation and every nomination that they oppose.

Clearly there is plenty of blame to go around between the parties for the rampant use of the filibuster as we see it today. But that is hardly the question. The question is -- is the filibuster today a good thing or a bad thing?

Predictably, the party in power (the Democrats) think it is not and the party out of power (the GOP) defends it vigorously. It should be noted that these are the exact opposite of the party positions eight years ago.

For my money, I think the presence of a filibuster is an important thing. Unchecked change with one party in power, although they are democratically elected, is dangerous. Besides, the DEMs have the votes, in theory to break a filibuster, they just need to hold together their own caucus. If they can't even do that, how sorry for them can I feel if their own members vote to filibuster their legislation?

The rampant use of the filibuster is out of control, to be sure. But even in the good old days, universal healthcare would be a filibuster-worthy subject.

So, here's what I would propose:
First, eliminate the filibuster on STARTING debate on a bill and on amendments but allow a filibuster on final passage. Surely, forbidding debate can't be in the interest of careful deliberation, but blocking a bad piece of legislation could be.

Second, how about Harry Reid requiring that if the GOP is going to filibuster that they actually occupy the floor and talk like old times? I think it would be worth bringing the Senate to a halt for a while to see what was really going on. Keep the Senate floor open 24/7. If they aren't going to play ball, don't just run and hide.

Regardless of what I think, the filibuster is almost surely here to stay. Let's see what happens tomorrow night.

GOP Tidal Wave in 2010?

As President Obama's approval numbers continue their gradual decline (new numbers again next blog), more Americans begin to blame the Democrats (as opposed to President Bush) for our economic woes and the right continues to get fired up, is it possible we will see a much more massive GOP sweep in 2010 than I have been projecting?

It's early to say, but I'm beginning to become a believer. As I've said, the most important metric to watch is not the polls, but the unemployment rate. If it starts dropping by early next year and dips down significantly by November, we could see a ho-hum mid-term with little change. If it is still double digits come November, prepare for a "throw out the bums" bloodbath. And the Democrats being in power, makes them the "bums", in case that wasn't clear.

Things Annoying Me This Week
Haven't done this in a while, so here are my awards for really annoying people and things:
(1) To the media for paying more attention to former Governor now sideshow freak Sarah Palin than to serious members of the GOP like Lindsey Graham and Tim Pawlenty.
(2) To the media again for paying more attention to a bow than to the fact that we are in hock to the Chinese for billions and getting worse. I mean, seriously, who on Earth cares about a bow?
(3) To Sen. Orrin Hatch (R-UT) for saying that any major piece of legislation must be terrible if it doesn't get 70 to 80 votes in the Senate. I guess he thinks the founding fathers were idiots for not requiring a 71 vote majority for passing, oh, say, the BUSH TAX CUTS....hmmm...maybe he has a point.

Oh well...if politicians and reporters weren't annoying than they wouldn't be politicians and reporters.

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