A Farewell To Arms: Ending The Phony Filibuster

By Mark Esposito, Guest Blogger

Newly elected Massachusetts senator Elizabeth Warren has a radical idea — words should mean what they mean. Take for example the word “filibuster.” Most of  us have the quaint notion that a filibuster is a rarely used exhausting  oration  by a  principled senator to stop devastatingly wrongheaded or corrupt legislation in its tracks.  From the time of Cato, the legislative maneuver was used as the last gasp effort to do the right thing even as the forces of corruption were circling.  It was essentially a plea for good men and women to think long and hard before passing ill-considered law. Think Jimmy Stewart in Mr. Smith Goes To Washington.

But alas, in the Orwellian world of “government speak” the new filibuster means simply that a senator makes a telephone call to the senate  majority leader threatening to stand before senate and protest a particular bill. Magically, the bill now requires 60 votes (for the cloture motion needed to end the phony filibuster) to pass instead of that old-fashioned formula for representative democracy —  the favoring of one half of the members present plus one. No speech, no reason, no passion, and no democracy. It’s too damn easy to gum up the people’s business with that slimmest and slimiest of minorities — the ego of one.

The rule has permitted the “Nattering Nabobs of No”  — also known as Senate Republican Caucus — to use the filibuster 380 times since 2006 to stop such menacing bills as those appointing judges or heads of government agencies, ending subsidies to Big Oil, and to open government processes to the public. That, according to Warren, spells abuse and government gridlock.

Oh, and what about that merit of allowing a sincere senator to try by the sheer force of his words to stop bad legislation from becoming law? According to Warren that’s as phony as the new filibuster, too. “We’ve seen filibusters of bills and nominations that ultimately passed with 90 or more votes,” she says. Senator-elect Warren has had enough of “government speak” and now calls for a majority to just be a majority.

On her first week on the job in January,  Elizabeth Warren, joined by several freshman senators, will propose that the Senate rules to be changed to make language meaningful again. She’ll ask that exclusive club, by a simple majority vote, to make a filibuster mean what the word implies. If she gets her way, senators will no longer hold a cell phone veto over the will of the majority and will have to actually stand in the well of the Senate to speak their piece. Maybe they’ll read aloud the Constitution, the Declaration of Independence  or even the telephone directory. Maybe they’ll tell us about their childhood growing  up in idyllic East Bumbletuck  or about their favorite cat or about the time they caught the winning touchdown pass. But maybe –just maybe — they’ll feel compelled by logic or honor or just plain ol’ manners to explain to us all why the manifested will of the world’s greatest nation takes a back seat to their petty wants.

Source: Huffington Post

~Mark Esposito, Guest Blogger

43 thoughts on “A Farewell To Arms: Ending The Phony Filibuster”

  1. SwM,

    I first saw her on The Daily Show. I remember thinking … this woman explains things in a manner even I can understand. After that I watched and read her any chance I got.

  2. I first became aware of Elizabeth Warren on the TPM Cafe. She had a blog on middle class and debt issues.

  3. To think that Warren had a hard time unseating a Republican no-nothing is a blue state! A rubber stamp, whose chief talent was photo ops.

    As for Warren, she wears a Democratic label, which gladdens me. But for me she chiefly wears one of honor and respect for the people.

    The only problem will be the pressure from Obama, to toe his WS friendly line.

    Reenact Glass-Siegal and enact six others of same magnitude.

  4. I like it all but best this by Hamilton:

    “In Federalist 22, Alexander Hamilton savaged the idea of a supermajority Congress, writing that “its real operation is to embarrass the administration, to destroy the energy of government and to substitute the pleasure, caprice or artifices of an insignificant, turbulent or corrupt junta, to the regular deliberations and decisions of a respectable majority.””

    That’s what we got now.

  5. Fix the Filibuster

    The Senate’s filibuster rule (Rule XXII) was designed to encourage full and careful debate, preventing the majority from steamrolling bills into law. In practice, the rule allows a minority – just 41 of the 100 senators — to stifle debate, not just slowing down the majority but blocking it altogether.

    Once a rarely used maneuver to allow extended debate, the filibuster is now routinely used to block debate on hundreds of critical issues and nominations. Federal action on the major issues of the day – from tackling the student loan debt crisis, to revitalizing the economy, to requiring disclosure of campaign spending and filling court vacancies – being held up in the U.S. Senate by a filibuster rule that is unconstitutional and was never contemplated by the nation’s founders.

    Common Cause believes filibuster abuse is a big reason why most Americans are frustrated with Congress and believe that the “government no longer works” for average citizens. Common Cause has filed a lawsuit charging that the Senate’s filibuster rule violates the core American principle of majority rule that lies at the heart of the U.S. Constitution.


  6. Is the filibuster unconstitutional?
    Posted by Ezra Klein

    In a 2011 article in the Harvard Law School’s Journal on Legislation, Bondurant laid out his case for why the filibuster crosses constitutional red lines. But to understand the argument, you have to understand the history: The filibuster was a mistake.

    In 1806, the Senate, on the advice of Aaron Burr, tried to clean up its rule book, which was thought to be needlessly complicated and redundant. One change it made was to delete something called “the previous question” motion. That was the motion senators used to end debate on whatever they were talking about and move to the next topic. Burr recommended axing it because it was hardly ever used. Senators were gentlemen. They knew when to stop talking.

    That was the moment the Senate created the filibuster. But nobody knew it at the time. It would be three more decades before the first filibuster was mounted — which meant it was five decades after the ratification of the Constitution. “Far from being a matter of high principle, the filibuster appears to be nothing more than an unforeseen and unintended consequence of the elimination of the previous question motion from the rules of the Senate,” Bondurant writes.

    And even then, filibusters were a rare annoyance. Between 1840 and 1900, there were 16 filibusters. Between 2009 and 2010, there were more than 130. But that’s changed. Today, Majority Leader Harry Reid says that “60 votes are required for just about everything.”

    At the core of Bondurant’s argument is a very simple claim: This isn’t what the Founders intended. The historical record is clear on that fact. The framers debated requiring a supermajority in Congress to pass anything. But they rejected that idea.

    In Federalist 22, Alexander Hamilton savaged the idea of a supermajority Congress, writing that “its real operation is to embarrass the administration, to destroy the energy of government and to substitute the pleasure, caprice or artifices of an insignificant, turbulent or corrupt junta, to the regular deliberations and decisions of a respectable majority.”

    In Federal 58, James Madison wasn’t much kinder to the concept. “In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. It would be no longer the majority that would rule; the power would be transferred to the minority.”

    In the end, the Constitution prescribed six instances in which Congress would require more than a majority vote: impeaching the president, expelling members, overriding a presidential veto of a bill or order, ratifying treaties and amending the Constitution. And as Bondurant writes, “The Framers were aware of the established rule of construction, expressio unius est exclusio alterius, and that by adopting these six exceptions to the principle of majority rule, they were excluding other exceptions.” By contrast, in the Bill of Rights, the Founders were careful to state that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

    1. Elaine,

      Thanks for the Ezra Klein link. It shows clearly why the filibuster rule is extra-constitutional. The problem is that those who support its ability to require a super-majority vote, will blithely claim that any rules change would be an assault on our Constitution even though that would be a lie.

  7. Big Banks vs. Elizabeth Warren: It’s On (Again!)
    The fight between the financial industry and Senator-elect Elizabeth Warren heats up again over her possible nomination to the Senate Banking Committee.
    —By Andy Kroll
    Mon Nov. 19, 2012

    Not even two weeks have passed since Democrat Elizabeth Warren rode a wave of grassroots support to victory in the US Senate race in Massachusetts, ousting Republican incumbent Scott Brown. Senator-elect Warren has not yet hired her staff. She has not yet moved into her Senate office. But the banking industry is already taking aim at her, scurrying to curb her future clout on Capitol Hill.

    Lobbyists and trade groups for Wall Street and other major banking players are pressuring lawmakers to deny Warren a seat on the powerful Senate banking committee. With the impending departures of Sens. Herb Kohl (D-Wisc.) and Daniel Akaka (D-Hawaii), Democrats have two spots to fill on the committee before the 113th Congress gavels in next year. Warren has yet said whether she wants to serve on the committee. But she would be a natural: she’s a bankruptcy law expert, she served as Congress’ lead watchdog overseeing the $700 billion bank bailout from 2008 to 2010, and she conceived of and helped launch the Consumer Financial Protection Bureau (CFPB).

    But the big banks are not fans of Warren, and their representatives in Washington have her in their crosshairs. Aides to two senators on the banking committee tell Mother Jones the industry has already moved to block Warren from joining the committee, which is charged with drafting legislation regulating much of the financial industry. “Downtown”—shorthand for Washington’s lobbying corridor—”has been going nuts” to keep her off the committee, another Senate aide says.

    Sen. Jack Reed (D-R.I.), a banking committee member, has been angling to get Warren on the committee, “but there are many bank lobbyists pushing to keep her off,” a top Democratic Senate aide told Politico’s Morning Money tipsheet. But the aide added, “If she really wants banking, it will be very tough politically to keep her off.”

    Several banking trade groups—including the American Bankers Association, Securities Industry and Financial Markets Association, and the Mortgage Bankers Association—declined or didn’t respond to requests for comment. A spokesman for Warren also declined to comment.

    The big banks’ opposition to Warren, a fierce consumer advocate, is no shocker. She supported the Dodd-Frank financial reform law, and she blasted Brown, who did vote for Dodd-Frank, for launching a “guerrilla war” to undermine its implementation. She backs the Volcker Rule, a limit on how much banks can trade with their own money. What may trouble the big banks most is Warren’s call for revisiting the Glass-Steagall Act, which separated riskier investment banks from more staid commercial banks. Reinstating Glass-Steagall would mean breaking up sprawling Wall Street institutions such as JPMorgan Chase, Citigroup, and Bank of America.

    Warren has also struck a hard stance on the foreclosure fraud epidemic. During negotiations last year between state attorneys general and bank executives over a foreclosure fraud settlement, Warren suggested the banks cough up $20 billion. The figure angered members of the banking industry, who saw it as far too high. But Warren’s view prevailed—and then some. The banks paid $25 billion in their settlement.

  8. What Justice Holms said.

    We need a fresh start, but choose on the basis on known performance.

    Shall we begin to speculate on what committee assignments Warren will get?

  9. no single person, elected or otherwise, can bring about the political change so desperately needed. electing senator warren is a great start, but it’s only a start.

    she’ll need help. it’s up to us to provide it.

    excellent idea for a post, Mark.

  10. The reason we are at this circumstance is that Reid was too lazy, weak to force GOP to actually filibuster. They are bullies and when they saw they could get away with it they did more and more. If Demcrats want a stronger Senate Reid must go!

  11. Only for Warren and Franken have I ever contributed to an out of State Senatorial campaign. Man, I have good judgement.

  12. Mr Smith goes to Washington was kinda “a plague on all your houses, whatever party. Not a single one was excepted. And of course many feel that way yesterday and today.

    Reading about the Polacks of South Milwaukee, (you listening NickS, did you live in or near Milwaukee?),
    it seems that in ’72 campaign they were identified as solid Muskie (Pole) fans. Well, they were by the ground organization identified as workers completely alienated from politics and unions, feeling that this society would bring nothing to their tables.

    Solid groundwork by 300 students from 20 states put them in McGovern’s corner by a 2 to 1 margin.

    That is the ground work that Rove despised and Obama’s campaign says won for them. Who knows.

    But you can get the senator you voted for, so choose carefully. And hope that if they are to radical that they won’t be assassinated.

  13. Yes indeed, words should have meaning and our Constitution should be enforced. How about also enforcing our Constitutional declaration that that War is declared by Congress, not by the President? Dropping bombs on foreign countries in an act of War, where is the declaration?

  14. rafflaw 1, November 18, 2012 at 11:46 am

    While they are at it, get rid of the “hold” that a single senator can put on a bill.

  15. Blouise,

    Give us a link to her Donation page. We might be noticed by the press, who get a heads up from her people.

    And that might start the ball rolling of a rule change. You never know.

  16. Not to blow my horn, but to show how happy and really behind Warren I am on this point—-
    Here is a comment I posted a couple of hours ago on the What is Democracy thread.

    “I see no reason that at least some improvements could be made in the Senate rules—-ie remove the 60 vote requirement to get it out for a simple majority vote on the floor. And elimination of blockage by filibusters.”

    Sometimes you wonder which corporation your senator is working for. And then comes Senator-elect Warren.

  17. SwM,

    During this election season, every time something particularly egregious was said or done by the opposition, didn’t matter who or what, or where, I would send a small donation to Elizabeth Warren’s campaign.

    I swore that if she won, I would continue that practice and add to the amount every time she did or said something of which I approved.

    I just hit the legal limit and will now have to wait until Jan. 🙂

  18. It’s about time the silent filibuster died. But if I didn’t want it to go, how about a cell phone call threatening to filibuster the change? Think it will happen? Or are changes to the rules non-filibustable? (I know that’s not a word but it’s more colorful than “not subject to filibuster”)

  19. I went back and forth about voting for her, but now I’m glad I did! I think a lot of these procedural problems in Washington amount to a bigger problem that issues that seem worse. Maybe with all the partisan divide on the headline news issues, motivated people in Congress should focus on fine tuning the process itself.

    In a democracy, sometimes the means can actually take precedence over the ends.

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