What's Next With Filibuster Reform?

What happens after filibuster reform? With the right changes we could get progressive legislation passed, like expanding Social Security.

Republicans are obstructing and sabotaging everything government does to make our lives better. Their plan is to run for office saying Democrats couldn't make government work, so elect them and let them put "efficient" corporations and billionaires in charge. Last week Senate Democrats (finally) started to change the game by changing the filibuster rules. What happens next? With the right changes we could finally get progressive legislation that vast majorities of the public want passed, like expanding Social Security.

When last week started, this was the obstruction situation, with Republican efforts to thwart and nullify the will of the people:

1) Republicans in the Senate were filibustering all nominees to become judges, to run agencies, even to be cabinet members.
2) In the Senate Republicans were filibustering to block almost all legislation from coming up for a vote.
3) In the House Republicans were keeping all bills from being voted on if they would pass because of the votes of Democratic members.
4) In the states Republicans are obstructing efforts to implement the new health care law.
5) In the states Republicans are attempting to restrict voting, to keep people who would vote against them away from the polls.

This week this is the obstruction situation:

1) Many nominees will be able to get votes and the judicial system and agencies can begin to function and serve We the People.
2) In the Senate Republicans were filibustering to block almost all legislation from coming up for a vote.
3) In the House Republicans were keeping all bills from being voted on if they would pass because of the votes of Democratic members.
4) In the states Republicans are obstructing efforts to implement the new health care law.
5) In the states Republicans are attempting to restrict voting, to keep people who would vote against them away from the polls.

The change in #1 -- stopping the obstruction of nominees -- is one small step for restoring rule by We the People.

It Was Nominees Only

The Constitution says that the President makes appointments with the "advice and consent" of the Senate, meaning approval by a majority. Senator Jeff Merkley (D-OR) has been making the case that the ability of the Senate minority to filibuster nominees throws our Constitutional system of three branches of government out of whack because it enables a minority in the Senate -- one house of the legislature -- to keep both the executive and judicial branches from operating.

I joined a Democracy Initiative conference call last week (before the Senate voted to end the filibuster on nominations.) On the call Senator Jeff Merkley (D-OR) explained that (from notes, might not be exact wording) "the core of the Constitution is of by and for the people, not of by and for the powerful." Merkley explained that the Senate has,

"... a tradition of simple majority for a powerful reason, the constitution sets up co-equal branches of government. ... If a minority can undermine everything using one branch, then the branches are not co-equal. So the filibuster creates a situation at this moment where a Republican minority has declared continuous war on Obama, ginned up determination, their base starts to expect them to exploit every possible rule to the maximum, and so we can’t believe any promise that we will return to norms of US Senate. We had that in January, July, the presumption is wrong."

Merkley also said, "This is simply about the president’s power to fill judicial vacancies at all." He also said this makes the courts look partisan, 'Blocking votes for judges discredits the impartial nature of judiciary, shows the courts as tilted and citizens are unable to correct this with votes."

Even so, the Senate has allowed the filibuster of nominees to continue, largely because it almost never happened -- until now. Of all the filibusters of nominees that have taken place in the history of our country, roughly half have occurred just since Barack Obama was elected President. But the Constitution says nothing about filibustering nominees.

One Small Step For The Will Of The People

Last week Democrats took one step toward restoring democracy and functioning government by ending this obstruction of nominees. And there is every sign this is going to start to restore functionality to our government. In Filibuster Reform: The Stakes for 2014, Robert Kuttner points out that restoring the proper nomination/confirmation process means that the President can now nominate more progressive people, no longer fearing inciting Republican hissy-fits. More importantly it will be easier to recruit better people to put forward because they don't have to worry about the Republican smear machine being used to cover obstruction, and then wait a year or more to see if they will even be allowed to get a vote.

Kuttner says this raises the stakes for the 2014 election because if Republicans take the Senate they "will be in a mood for payback and then some."

Get rid Of Filibuster?

In response to the rule change by Senate Democrats many Republicans say they will just get rid of the filibuster entirely if they take control of the Senate. Of course this is what they would do no matter what should they become the majority.

But there is a difference between nominees and legislation. There are valid Constitutional reasons for confirming nominees with a majority; while the Constitution is clear that nominees should be confirmed with majorities it is also clear that the Senate's rules for legislation are up to the Senate.

Big-media pundits commenting on last week's rule change are not recognizing that nominations are very different from legislation, and are talking about how Democrats have disrupted the way the senate is supposed to operate. They say this is only the first step in a Democratic plan to eliminate the filibuster entirely. This serves to give cover to any coming Republican attempt to get rid of the filibuster entirely.

Make Them Talk

The fundamental question: if a silent filibuster takes place in the forest with no one telling the public a filibuster is occurring, is it really a filibuster? The public believes that a filibuster involves a dramatic event with Senators staying up all night talking. Much of the public simply does not even know of the obstruction that has been taking place, because of the "silent filibuster" rules. People don't like obstruction, but they do not know that obstruction has been taking place.

There is a solution. On the Democracy Initiative conference call I wrote about above Larry Cohen, President of the Communication Workers of America (CWA) said, "Filibusters should be about talking."

The original idea of the filibuster serves a purpose. It is the "cooling saucer." Sometimes things get heated up, maybe a special interest is doing one of those well-funded shock-and-awe campaigns to push something like "Fast Track" and Trans-Pacific Partnership (TPP) through, the public is panicked, and a rational minority needs to put up a fight.

When used as intended a real, honest filibuster slows things down, sends out the word that something is going on that the public might not like and gives the public time to rally.

Most Democrats are proposing bringing back the talking filibuster. Few if any Democrats are talking about just getting rid of the filibuster entirely. What most are proposing next is restoring the filibuster to what it is understood to be. The current filibuster rules allow any single Senator to essentially declare any legislation filibustered, requiring 60 votes before it can come to the floor. So we have seen the abuse of hundreds and hundreds of "silent" filibusters obstructing everything.

If one or more Senators wants to block a bill, fine. But they should do it by coming to the floor and making their case.

If Democrats restore the "talking filibuster" this accomplishes two things.

1) A talking filibuster is dramatic. It is a big deal. The media covers it and people notice it. (This is what happened with Ted Cruz's "filibuster" even though it wasn't even a filibuster!) This allows democracy to go into action. The bill is slowed down by the talking filibuster, and people become aware of the issue. This gives people time to rally and contact their Senators to weigh in, for or against.

2) If the filibuster rule becomes the rare talking filibuster Republicans will have a very hard time justifying killing that if they come to control the Senate.

What Does This Accomplish?

One more thing. Many people say "So what if we can get things moving in the Senate again. Republicans are still obstructing everything in the House."

Here is one example of how a functioning Senate can be used to get things moving again. Senator Harkin's Strengthening Social Security Act of 2013 would come to the Senate floor for a vote. Or Elizabeth Warren could introduce a bill expanding Social Security and it could come to the floor for a vote.

The public wants this. A recent Public Policy Polling poll found that 65 percent of voters in 10 districts support increasing Social Security benefits.

The public wants Social Security expanded and fixing the filibuster means this could get a vote in the Senate. The American Majority wants this and this level public support would put tremendous pressure on the House to allow a vote. And it would pass.

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This post originally appeared at Campaign for America's Future (CAF) at their Blog for OurFuture. I am a Fellow with CAF. Sign up here for the CAF daily summary

About Dave Johnson

Dave Johnson's picture
Fellow, <a href="http://ourfuture.org">Campaign for America's Future</a>, Sr. Fellow, <a href="http://renewca.org">Renew California</a>, Blogger, <a href="http://seeingtheforest.com/">Seeing the Forest</a>

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