The Filibuster is Dead, Long Live the Filibuster

December 9, 2013
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The Filibuster is Dead, Long Live the Filibuster

It came as no surprise to me that The Washington Post editorial page led the charge in denouncing the change in Senate filibuster rules that Majority Leader Harry Reid (D-Nev.) and 51 of his Democratic colleagues finally made on Thursday, November 21st, 2013.Whatsleftofdem

The king is dead, long live the king! is a traditional proclamation made following the accession of a new monarch in various countries.

This axiom refers to the heir who immediately succeeds to a throne upon the death of the preceding monarch; meaning the monarchy never dies even when the King does. The same reasoning is at the heart of why both parties have been adamant about leaving the former filibuster rules unchanged. It remains the single best way for a minority party to challenge and influence decisions of the majority party

It remains to be seen if the Democrats come to regret that change. If the Democrats lose control of the Senate, especially in 2014, it will haunt them for a long time, but it was a change that had to be made if the government was going to be even remotely productive. Reid’s action to allow a simple majority of senators present and voting — not the longstanding 60 — to end debate and proceed to a vote on presidential nominations to executive and judicial offices (except the Supreme Court) has now been widely characterized as a radical step, certain to accelerate the poisonous partisanship in Congress. Critics insist that it will grievously damage the Senate’s comparative advantage over the House of Representatives in fostering bipartisan negotiation and compromise.

The procedure Reid used — setting a new cloture precedent with a simple majority despite a Senate rule requiring a two-thirds majority to change Senate rules — was gutsy. Yet this method has been long available to the Senate. It was even proposed by Republican Majority Leader Bill Frist in 2005 and occasionally used to make minor changes in the filibuster.

Indeed, the threat by Senate majority leaders to use the “nuclear” or “constitutional” option to address abusive uses of the filibuster has often failed because senators in both parties were reluctant to give up the individual and opposition party powers that flow from the filibuster.

But this time was different.

2008 Changed Everything and the GOP Filibuster Became the Blocked Artery of the Heart of Government

Strong Republican opposition to an up or down vote on President Barack Obama’s nominees to the three vacancies on the D.C. Court of Appeals was the last straw in the face of an unprecedented five-year campaign by the Republicans to use any means — whatever the cost to the operations of government and the country’s welfare — to delay, defeat, disable, discredit or nullify the ambitions and achievements of the Obama presidency.

The Senate has become a battleground for partisan war, not a forum for genuine deliberation and bipartisan compromise. The regularization of the filibuster under Republican Leader Mitch McConnell (R-Ky.) — with a 60-vote threshold for action the new normal, rather than the exception that it has been for generations before him — is a distortion, to the point of perversion, of the intentions of the framers of the Constitution (how about that—I can gain entry into tne mind of the framers of the Constitution through time-warping extra sensory perception as well as any Tea Bagger—or even Rafael Cruz) and Senate traditions.

Divided party government under the conditions that have evolved since the election of Barack Obama–conditions of extreme party polarization–is itself a formula for relentless opposition and legislative paralysis. The Olympic-sized, record-shattering lack of congressional productivity since the 2010 midterm election proves this beyond any reasonable measure. The exploitation of the Senate filibuster compounds Washington’s dysfunction by preventing the president from staffing the executive and judicial branches in a timely fashion and carrying out the administrative responsibilities of his, and many other government offices.

If George W. Bush were involved I’m sure he’d be posing in front of a Super Bowl-sized banner, standing atop a “nucular” aircraft carrier, in full flight uniform, proclaiming Mission Accomplished.

There isn’t sufficient wishful thinking in the universe regarding bipartisanship that will change these hard facts.

The filibuster change is the logical, perhaps inevitable, and surely the only reaction to Republicans’ intense, treasonous, parliamentary-like opposition since Obama’s election and re-election. The window for constructive policymaking that appeared to open, ever so briefly after the 2012 election, has once again slammed shut.

This filibuster change was a step Senate Democrats finally felt compelled to take, realizing it could undermine their individual power and ability to stop appointees and policies they strongly oppose when they inevitably lose control of the White House and Congress sometime in the near or distant future. Either way, the hunter eventually becomes the hunted in this game.

But at least for the next year, Obama will be able to fill key vacancies and replace people in his administration he believes should go.

Unfortunately, the diversity of views within the Democrats’ party and the vulnerability of some key red-state Democrats will limit any temptation he might have to swing sharply left. Moderate Republicans not fully on board their party’s radicalization could well find their leverage in the Senate increased once GOP votes against cloture cannot succeed in denying confirmation.

This change in the filibuster rule, could actually strengthen the Senate and help change the destructive dynamic that has weakened what was once called “the world’s greatest deliberative body.” It will give the leaders of both parties a reasonable opportunity to get timely up or down votes in the Senate to confirm nominees to executive offices and the federal judiciary.

But make no mistake, Senate Republicans retain plenty of leeway to gum up the works with holds; refusing to agree by voice vote to plenty of noncontroversial nominees; stretching all allowable debate time with cloture rules; refusing requests that committees meet while the Senate is in session, and other parliamentary tools. The Senate will not become just like the House, but the objectives behind such steps will be more transparent. Changing the Senate rules should lead to more informed reporting on the uses and abuses of the filibuster, and keep the public better informed about what ails Congress and what they might do to rectify it.

But a great deal depends on the Democrats too. They are traditionally unfocused and each wing of the party tends to focus on their own pet issues, be they immigration reform, staving off repeated attempts by the GOP to shrink their voter base, LGBT issues, attacks by the GOP against union and labor, women and minorities rights, etc. I have long hoped that the Democrats would put all their collective supporters strength in numbers on two or three primary issues at a time and circle the wagons when threatened as the Republicans generally do. But I’m doubtful of this ever happening.

Then there’s the money. As long as the Supreme Court remains a conservative action committee for the conservatives the Democrats had better keep the Senate and the White House or The Republicans and SCOTUS will tip the scales of the U.S. into conservative oblivion, regardless of the will of the people. The dollars behind the conservative, anti-middle class, anti-minority, anti-women’s rights lobby is just too vast. The Democrats are on the side of the people, but the people are more and more concerned with survival and less and less prone to believing there is anything that they can do to stop the GOP attacks on their right.

And anyone who reads anything I publish knows how I feel the broadcast media has gone from investigative, fact-finding journalism to entertainment-owned, ad-dollars focused…meaning no news and all opinion, all the time.

The resolution of internal struggles within the Republican Party will ultimately determine whether the Senate and the U.S. constitutional system can again function constructively. All these developments raise the stakes in the 2014 and 2016 elections, to levels that the middle and lower-class segments of America seem to lack the will to change and the Democrats lack the expertise to harness.

If you think the stakes have ever been higher, and you are not in the top 1% of income earners, you might want to get your ass registered, whatever the obstacles the GOP has erected to keep you home on election day, and get out and vote—while votes still count for anything.

HG

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