Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
So I'm watching TV the other day and I see Sen. Tom Udall on the Rachel Maddow show, arguing that the Senate must get rid of the filibuster. And he called his plan to do so the "constitutional option." Hmmmm, I thought to myself. That's funny, because that's exactly what Republicans tried to call the same plan when they wanted to get rid of the filibuster in 2005.
There's nothing constitutional (or unconstitutional, for that matter) about it, of course. The constitution leaves it to the two chambers of Congress to set their own rules for passing legislation. It only mandates particular types of majorities for votes on specific subjects (impeachment, for example). Getting rid of the filibuster may be a good or bad idea, but neither option is constitutional required.
When the Republicans were considering trying to end the filibuster, as Democrats are considering it today, they used "nuclear option" and "constitutional option" interchangeably in the press. And now we have Democrats pressing for the same thing they opposed 5 years ago and even using the same name.
Andrew Breitbart is an obnoxious asshole, but this video from his website is spot on in pointing out the hypocrisy of Democrats who are now calling for a change in Senate rules to get rid of the filibuster. Of course, Breitbart won't point out the equal hypocrisy of Republicans in the matter but I already have and will continue to do so.
My favorite part is where Biden says on the floor of the Senate that the nuclear option is "the ultimate example of the arrogance of power" and a "fundamental power grab." Harry Reid also says it was only being considered because of the "arrogance of power of this Republican administration." Now if the Democrats go through with it, he'll have to be the one pulling the trigger.
It will be great fun to watch him try to justify himself. And equally fun to watch the Republicans in the Senate wax eloquent about the arrogance of the Democrats in doing what they wanted to do 5 years ago too.
By the way, I should also note that this does not apply to the possibility of using reconciliation rules to get some of the elements of health care reform passed without needing the 60 votes to invoke cloture. I don't have a problem with that for this reason: Using the filibuster to make sure that it takes 60 votes to pass a bill instead of 51 is a procedural trick to achieve a goal. Using reconciliation to get around that would also be a procedural trick to achieve a goal. And the Republicans have used reconciliation in the past for the same purpose. So if the Democrats want to do the same thing to get around the filibuster, I say have at it. But if they try to get rid of the filibuster, as they are now talking about doing, they will only be engaging in the same script-exchanging hypocrisy that the Republicans have been doing all along.
Politics
Comments
Partisanship: the selective ability to forget yesterday and all other inconvenient facts.
Posted by: Dr X | February 26, 2010 12:21 PM
Then let's just get rid of the filibuster once and for all, I say, and be done with all the hypocrisy. The American system of government already has more checks and balances than most other democratic nations, so why not just let a simple majority in the Senate have at it and do some legislating for a change?
Sure, there will likely be more bad bills and more bad decisions, but at least it will ensure that the majority will actually have to run on their record. Anything is better than this creeping paralysis that's overtaking the Senate.
Posted by: tacitus | February 26, 2010 12:22 PM
fill in the blank:
"Democratic hypocrisy on _______"
Civil liberties in general
PATRIOT ACT
torture
medical MJ
wiretapping
ARGH!
Posted by: VikingMoose | February 26, 2010 1:09 PM
Ed,
I agree with you in principle, but I have to give the Democrats a little fudge factor based solely on the insane level the Republicans have elevated the use of the filibuster. They're just shy of filibustering a quorum call.
On the other side, I would argue against eliminating the filibuster all together, but instead do away with that pact with the devil, the procedural filibuster. Let Republicans filibuster, but make them actually stand there and openly block the passage of any legislation or any Senate business for a few days. This lame-ass procedural BS allows them to block just about anything of substance while not having to pay any political price to do so.
Posted by: dogmeatib | February 26, 2010 1:13 PM
I would expect any reasonable person or group to change their mind when the circumstances change. Perhaps there were individual instances where the Democratic party abused the fillibuster in the past, but AFAIK, they did not use it to block every single attempt to accomplish something.
The current Republicans have explicitly stated that their goal is to make Obama fail, and they are using the fillibuster as their primary weapon. They are frankly and openly putting the welfare of their party above that of their constituents and the nation.
The current situation is not all like the situation under Bush and former Republican majority, and it is foolish to expect the Democrats to act like it is.
As Alexander Pope said, 'Consistency is the hobgoblin of foolish minds.'
Posted by: Tex | February 26, 2010 1:20 PM
If it's the hypocrisy you're complaining about, I would agree that getting rid of the filibuster is probably the best option. Maybe retain it for certain crucial kinds of votes, or something.
My favorite solution is to take away the "cloture" vote. (At least I think that's what it takes.) Make the Senators actually filibuster; stand up and orate for hours on end. Make the filibuster actually require some personal and political pain to use it. If it is worth the cost, principled people will use it to defend an idea. If it is just a gimmick, but a gimmick that has a downside when used, I'm guessing people won't use it as often. Right now, there is absolutely no downside cost to threatening to filibuster. When was the last time you saw a Senator actually have to filibuster, rather than merely threaten to filibuster? It doesn't happen any more. Senators are so afraid of actually using the filibuster, it never actually happens any more.
Someone did the math, and I'm just quoting from memory here, so I could be wrong. Looking at the Red-State/Blue-State map, most of the Red states are the small population states in the center of the country, while most of the Blue states are the larger population states on the coasts (generally speaking). So, if the 41(+) Republicans vote as a block, it represents about 11% of the US population holding up all legislation in the US Congress. (Yes, I'm sure this doesn't count the distribution of "Purple" within states, but that's a symptom of our winner-take-all electoral system.)
I realize that the Senate was designed with just this thing in mind, to prevent the "large" states from running roughshod over the "small" states. But where does one draw the line on how big a majority needs to be to get any work done?
Posted by: Scott | February 26, 2010 1:22 PM
I have to admit that I have been enjoying the Democratic hypocrisy on the filibuster for quite sometime now. As you said Ed, when roles are reversed both parties exchange the script.
Posted by: Goldbrick4 | February 26, 2010 1:41 PM
Noting again, it looks like current rules only require a simple majority to {a} request and require attendance of all members to session (on penalty of inherent contempt), {b} refuse any motion to adjourn the session, and {c} refuse permission to absent from the chamber (including to use the bathroom).
If the Republicans still want to Filibuster, by all means; it will probably up C-SPAN's viewership.
Posted by: abb3w | February 26, 2010 2:13 PM
In yesterday's healthcare reform forum Sen. Reid claimed there were no plans to use reconciliation. I'm not sure he was being disingenuous to the point of lying, he didn't seem to be, or confused by his own party's plans. However, last night the Democratic House Whip Rep. Clyburn basically laid out the plan which includes reconcilation.
The Plan
Leverage the President's 11-page proposal as a starting point to develop a plan to reconcile the differences between the House plan the Senate plan. Craft a draft that would win majorities in both chambers and is OK with Obama.
Once that draft is OK with the House and Senate Democrats (merely a majority, not all 59 Senators), the House would pass the Senate bill which already passed the Senate by going through a cloture-vote, i.e., a vote prior to Massachusett's new Republican Senator Scott Brown taking office. The President now has a bill he can sign, life is good.
The House and the Senate, with the Senate using reconciliation rules, would then pass the draft of amendments to the overall bill reconciling some features of what the House and the President wants relative to the Senate bill that the Senate can pass on a simple majority vote.
From this perspective, Reid wasn't technically lying when responding to the Republican Senators since they were framing the bill to be passed as a modified version of the entire bill, where there is no plan to modify the entire bill for a new vote, but instead pass amendments separately. However his answer was framed in a way that reconciliation wouldn't take place on healthcare for even some portion of the bill which is simply not true according to his own Whip.
My Representative, Bart Stupak, comes back into play to muck things up with his opposition to the abortion provisions in the Senate bill, which mimic the original House language.
This approach is a sound one in my opinion with one possible exception. On a positive note, it provides a method for the Senate Democrats to also claim that they used reconciliation based on its original construct, currently the Republicans are misrepresenting the Dem's strategy as if the Senate would be passing healthcare in its entirety through reconciliation when in fact it would merely be changes expected to be mostly budgetary with few exceptions though two are notable (my exceptions).
One is Stupak and his anti-abortion right Democratic caucus advocating for their language rather than the original House/Senate language. From a policy and strategic perspective, I think this is a monumental blunder and I have little tolerance for their so-called principles given what's at stake is far more important. Also as a matter of principle I don't think this should pass through reconciliation either since it's not a budgetary item, Senators should have the right to filibuster this item.
The other is far-reaching, using reconciliation to also pass the public option, which the House Democrats overwhelming wants, as does more than 50 Democratic Senators, as does a little more than half of the public if the question is fully framed. However, this is a major piece of legislation. I really want it to pass, however I think it's wrong on principle to pass it by avoiding filibuster.
I also think that there may be a strategic opportunity missed by the Democrats if they pass the public option by reconcilation. Pass what I just laid out except the public option. Then bring it up as a separate amendment that goes through the House and the Senate. As a standalone initiative it'd be far easier to market its benefits to the public. A little more than half the country wants the public option in spite of the utter failure by Obama and the Congressional Democrats to compentently market their healthcare initiatives along with all attacks by the GOP and hundreds of millions of dollars spent by the insurance industry against the public option. I'd bet this could get huge support, as much as 60+% from Americans, which would help Dems distingiush themselves from Republicans in the fall 2008 elections.
But what I know? I like to see both parties aggressively go for smart wins, instead the Democrats seem committed to trying not to lose.
Posted by: Michael Heath | February 26, 2010 2:13 PM
It would certainly be ironic if there were the same groundswell of support among Democrats for the elimination of the filibuster as there was among King George II Lords prior to 2008, but that is certainly not the case. Individual members of Congress are certainly raising the prospect, but the actual strategy of the Demcrats is how Michael Heath lays it out - using already existing Senate rules to pass the full reform bill without having to deal with cloture this time around.
Of course, the party of NO is already conflating the use of the reconciliation process with their own attempt to ram through King George II's judicial nominees a few years ago.
Posted by: CPT_Doom | February 26, 2010 2:38 PM
The fact of the matter is that this is all inside baseball to the general public. They don't care about the filibuster. A recent US News poll showed that only a quarter of Americans knew how many votes it took to break a filibuster. I'd further argue that the general public doesn't care about the hypocrisy and script exchange on something like this at all. I think the nation as a whole would be better off without the filibuster. Democratic majorities get to pass progressive legislation, and if they are popular the worst future Republicans will be able to do is tweak them (e.g., welfare reform in the 90's). Now, if Democrats don't kill the filibuster while in the majority I would simultaneously support it's use to block any bill I don't like as well as any push completely remove it's use in the senate.
Posted by: penn | February 26, 2010 2:54 PM
Newt Gingrich continues to explore the depths of insanity and demagoguery with his comments on the latest fuss over the filibuster:
Gingrich is a smart guy, so he has to know how utterly divorced from reality this comment is, right?
First, America has a majoritarian electoral system from top to bottom, from the most local races to the Presidential election (well give or take the odd ECV). The Supreme Court isn't required to provide a 6:3 or 7:2 vote on anything they decide, nor does the House of Representative.
Second, if there is any political group that favors majoritarianism in the US, it's the right-wing conservatives. Liberals have been attacking the notion of majority-rule for decades, with mounting concern over all kinds of minority issues that liberals often champion. I can't remember how many times I have heard Republicans and conservatives rail against the tyranny of the minority (and not just in the Senate).
Third, Chavez? Please. That's is so utterly weak. (Where are all those popular autocratic rulers when you need them?). Chavez wouldn't need to rig elections and fiddle with his country's constitution if he was able to win a majority at the polls.
Posted by: tacitus | February 26, 2010 2:56 PM
While there's been some hypocrisy by Democrats regarding the filibuster, Breitbart's video is comparing apples to oranges. Fox News and other conservative media outlets have taken to calling reconciliation "the nuclear option." Then they've taken Democrats to task for opposing the nuclear option in the past.
But they've changed the meaning of the term along the way. The "nuclear option" the Democrats are condemning in that video is elimination of the filibuster, not the use of reconciliation. You've been duped by a pernicious game of Calvinball, Ed.
Posted by: dslak | February 26, 2010 3:06 PM
It is fundamentally nonsensical to claim that a party in a dispute is hypocritical on procedural matters, unless that party gets to call the shots.
Simple example is the courtroom. Suppose you were a party in a lawsuit and you have a good attorney. If you were in the shoes of the other party, you would want your attorney to attack the positions he/she is advancing now. However, the judge, who calls the shots, should be consistent in adjudicating issues. The judge is hypocritical if he or she allows a certain type of argument on behalf of parties he/she likes, and denies it on behalf of parties he/she dislikes. But it would be absurd to accuse the attorney of hypocrisy for arguing whatever best serves his or her client.
Parliamentary procedure is less clear because its structure is fuzzier and it is not obvious who calls the shots, but I submit that the Representatives and Senators are in the role analogous to attorneys - their mandate is to advance the interests of their constituents.
They can be hypocritical on substantive issues, because substantive positions are what voters reasonably (which may differ from "actually", but I think reasonable reliance is a necessary standard if we discuss any kind of breach of trust, which is what hypocrisy fundamentally is) rely on when voting for them. But procedural rules are not what they are elected to venerate, and there is no reason they should not be advocating whatever changes are expedient.
Now who calls the shots? Who is the judge? Well, except in cases of egregious constitutional violations that would make the Supreme Court venture into adjudication of another branch's rules, it is the amorphous and abstract entity called the electorate. Can the electorate be hypocritical? What does that mean? I don't know.
Posted by: bullfighter | February 26, 2010 3:12 PM
One point I need to add: I do think it is hypocritical if a Senator pretends to advocate ending the filibuster, but doesn't in fact act to do so (or even sabotages efforts to end the filibuster). Again, it is the breach of trust and misrepresentation that is determinative. And I do believe that some, perhaps even most, Democratic senators belong in this category.
Posted by: bullfighter | February 26, 2010 3:18 PM
Ed, did you read Udall's position? It is functionally different from the nuclear/constitutional option of the Republican congress during the Bush administration. Udall is advocating that the next Congress seated in 2011 get to vote on its rules; the previous nuclear option would have changed rules in the middle of a Congress by having the majority set aside the rules currently in place. You're way off base here.
Posted by: Shygetz | February 26, 2010 5:15 PM
Ed, I think your post set up a false equivalence; after all, - the Democrats have hardly used the filibuster/ cloture votes to stop government in its tracks under Bush as the Republicans are trying to do now;[*]
- 16 of 22 or so reconciliation votes in recent history were used by the Republicans to push through major Republican legislation, like the Bush tax cuts which still are responsible for about of the current deficits.
Yes, it would be best if the cloture rule would be abolished, and Senators required to actually filibuster. (Imagine a Republican senator having to speak for 20 hours on the superiority of private health insurance, or the evils of Social Security and the benefits of having your retirement funds invested in Enron shares!)
[*] And apparently even now they don't have the will to break a Republican filibuster attempt:
http://www.dailykos.com/story/2010/2/26/840979/-Dems-letting-Bunning-win-on-UI-COBRA
Posted by: A | February 26, 2010 5:27 PM
All I needed was the first two words of Ed's title to predict that the "false equivalency!!!!eleventyone1!!" folks would be crawling all over this page.
Yes, I agree, the Democrats aren't as bad as the Republicans. Of course I don't think pig shit smells as bad as cow shit, but I don't use either one as a cologne.
Posted by: James Hanley | February 26, 2010 5:43 PM
It's only a "procedural trick to achieve a goal" if you're ruled by expediency instead of principle. If you think that:
a) the Democrats are not using the reconciliation process for its intended purpose while the Republicans are using the filibuster process for its intended purpose, or
b) the reconciliation process should not exist,
then it's perfectly fair to be upset about the Democrats' use of the process.
Posted by: Miko | February 26, 2010 6:21 PM
Mary Matalin's turn to spout idiocy:
Posted by: tacitus | February 26, 2010 6:29 PM
Ed you're right.
Now how about reminding the Dems they were supposed to sink the bad parts of the Patriot Act?
Posted by: Phil | February 26, 2010 8:19 PM
I don't get why you think the issue on the filibuster is hypocrisy. The situation isn't at all identical to what it was when Bush was president; Republicans are currently abusing the filibuster in an unprecedented way.
Posted by: Nick Tacik | February 27, 2010 12:15 AM
Matter and antimatter have met and the world has just exploded.
Actually, the Democrats aren't being hypocritical so much as they are being pragmatic about the situation. You'll remember that they didn't oppose the ability of the Republicans to use the "constitutional option" as much as they worked to play down the necessity of doing so. Now that the shoe is on the other foot, we have a much worse situation than existed even back when the Republicans proposed the "constitutional option" - a situation caused by some of the very same republicans who lamented the comparatively kindly Democrat "obstructionism" of the times - so it is only natural and necessary that Democrats attempt to frame the issue in favorable terms.
There are plenty of examples of hypocrisy among Democrats, but this is a fairly weak or nonexistent one, especially when compared to the recent exploits of Republicans.
Also, I do not support the removal of the filibuster. The real problem is the dual-track system that was put in place in 1975. Ever since Newt Gingrich figured out how to game the system and rule from the minority, legislation in the Senate has suffered more and more ever since. It makes much more sense to remove the dual-track rule and force filibustering senators to stand and speak in order to enact the procedure rather than allow for political head games to suffice.
Sure, it still slows down legislation, but that's sort of the point of the Senate. Besides, eventually everyone will get tired of the show and vote for cloture no matter what else happens and it will go to a vote; history bears that one observation out. The true problem right now is that a filibuster can be perpetual, not that the filibuster itself exists. Besides, if there is no filibuster, there is also almost no political leverage of the minority against the majority, nor is there the ability of the majority to force the minority to explain its obstructionism. As one political scientist I heard put it, the filibuster encourages political moderates to negotiate. Without it, we get more and more factionalism.
Posted by: Ryan Egesdahl | February 27, 2010 2:25 AM
Nick Tacik @22,
What makes it seem unprecedented is the effectiveness of their party discipline. I pointed out before on this blog a couple of months ago how Democrats, led by Ted Kennedy, had planned to lead a filibuster of Medicare prescription drug plan legislation. Obviously, that planned filibuster failed, and the final votes were 220-215 in the House, and 54-44 in the Senate. Cloture was actually invoked in the Senate by a 70-29 vote despite 44 Senators voting against it. We may never know how Democrats would have used the filibuster if they had had the kind of party discipline Republicans have now while they were in the minority. It is hard to compare the parties on this score because of that.
tacitus @20,
I read Matalin's statement as meaning that the Democratic majority in Congress is acting against the majority of the public that doesn't want this particular bill (according to some polls). It really does seem that passing this legislation as-is would be cutting it awfully close to not having majority support from the electorate. Given how many people would be affected by it, that is reason enough, IMHO, to start fresh and build a better bill.
Posted by: JasonTD | February 27, 2010 1:37 PM
JasonTD @ 24 - I agree with your observation that the GOP has superior party discipline in terms of keeping its caucus together on votes. However I think you over-extend your argument when assigning discipline as the primary factor regarding why the GOP filibusters more, i.e., it's discipline rather than the propensity to want to filibuster where Democrats merely can't exploit this tool as much given their relative lack of discipline.
Medicare Plan D was a bipartisan bill. In fact when one considers the most principled Senators during that time relative to the Senators that were blatant about supporting constituencies or more loyal to the party's ambitions, that was a better predictor than party affiliation. Here's the roll call vote: http://www.govtrack.us/congress/vote.xpd?vote=s2003-459
In my opinion, Senators voting "yes" for Plan D and voting "no" for this past year's Healthcare reform is perhaps the biggest display of political hypocrisy in my lifetime, primarily due to Plan D being unfunded by the Obamacare is funded. There is no way to logically square the circle and I'm surprised the media doesn't bring this up more.
I'd argue that the increase in filibustering out of the GOP is based on one factor; that would be that the idea of filibustering being a defining feature of conservatism. As William F. Buckley eloquently noted, conservativism is obstructionist, especially regarding progressivism and liberalism.
The recent and unprecedented spike upward in filibusters by the GOP at a rate far higher than the Democrats is because conservatives historically didn't control the GOP in sufficient numbers to stop its non-conservatives members from working with Democrats. In addition, the most effective filibuster of our nation's history was Southern conservatives in the Democratic party filibustering race-based post-Civil War civil rights bills for 75 years until one of its own sons, Senator Lyndon Baines Johnson who was then a conservative, pulled the Senate into the 19th century (I say 'pulled' because within 10 years these conservatives began to emigrate out of the Democratic party to eventually take control over the GOP).
I don't see the desire by Democrats to filibuster at the same rate because they remain more diverse in spite of the GOP membership consolidating almost exclusively around conservatism, where Democratic conservatives and liberals are few and far between and therefore have little power to do so nor do I think its in their nature to do so. A good example was the collegiality Reagan received from the Democratic heavy Congresses during his reign.
In the past the GOP had members who were not conservative (like me, or leaders like Sen. Lincoln Chaffee who voted no on Medicare Plan D) or they self-identified as conservative in spite of their inconsistent loyalty to conservative objectives and their not possessing the personal characteristics consistent with the movement (the most famous being H.W. Bush). In the Plan D vote this would include Senators like Lindsey Graham, Judd Gregg, Chuck Hagel, and John McCain, all of whom also voted no.
Posted by: Michael Heath | February 27, 2010 3:02 PM
Ed,
I have to agree with #16 here. Udall was specific in what he wanted to do, and nomenclature aside, it was very different from the Republican "Nuclear Option."
While there is hypocrisy on all sides on all matter of things, this one time Ed, you missed the point and got it wrong.
Sorry. You still totally rock.
Posted by: David | March 1, 2010 8:42 AM