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  • How to Not Fix the Filibuster

    David Swanson

    By David Swanson. This article was first published on War Is A Crime.

    Leaving the 41-senator filibuster in place but requiring that they run their mouths (and some of us have to listen) is not exactly the kind of Change most of us Hope for.  Nor is it supported by the Constitution, any other law, any treaty, any rule necessary to the functioning of our government, anything or anyone we just voted for, or any public opinion poll.  The proper thing to do with the filibuster is to eliminate it, which 51 senators can do at the start of the session if they see fit. I know you've been told they can't, but keep reading.

    Trying to squeeze any sort of peace on earth out of our government in Washington has been a steep uphill climb for years. For the most part we no longer have representatives in Congress, because of the corruption of money, the weakness of the media, and the strength of parties. There are not 535 opinions on Capitol Hill on truly important matters, but 2. Our supposed representatives work for their party leaders, not for us. One of the two parties sometimes claims to want to work for us.

    When the Democrats were in the minority and out of the White House, they told us they wanted to work for us but needed to be in the majority. So, in 2006, we put them there. Then they told us that they really wished they could work for us but they needed bigger majorities and the White House. So, in 2008, we gave them those things, and largely deprived them of two key excuses for inaction. We took away the veto excuse and came very close to taking away the filibuster excuse, and -- in fact -- the filibuster excuse could be taken away completely if the Democrats didn't want to keep it around.  In 2009 they chose to keep it, and again in 2011.

    This is not to say that either excuse was ever sensible. The two most important things the 110th Congress refused to do (ceasing to fund illegal wars, and impeaching war criminals) did not require passing legislation, so filibusters and vetoes were not relevant. But the Democrats in Congress, and the Republicans, and the media, and the White House all pretended that wars could only be ended by legislation, so the excuses for not passing legislation loomed large. The veto excuse vanished on January 20, 2009. The filibuster excuse could have been gone by January 6, 2009, if Senator Harry Reid had wanted it gone, or again in January 2011.  It could also be gone by January 2013 if the Democrats actually want to not have the Republicans to blame for their failures.

    The filibuster excuse works like this. Any 41 senators can vote No on "cloture", that is on bringing a bill to a vote, and that bill will never come to a vote, and anything the House of Representatives has done won't matter. Any of the other 59 senators, the 435 House members, the president, the vice president, television pundits, and newspaper reporters can blame the threat of filibuster for anything they fail to do.

    Now, the Senate itself is and always has been and was intended to be an anti-democratic institution. It serves no purpose that is not or could not be more democratically accomplished by the House alone (were the House not gerrymandered and bought and paid for). The Senate should simply be eliminated by Constitutional Amendment. But the filibuster is the most anti-democratic tool of the Senate, and can be eliminated without touching the Constitution, which does not mention it. If you take 41 senators from the 21 smallest states, you can block any legislation with a group of multi-millionaires elected by 11.2 percent of the American public. That fact is a national disgrace that should be remedied as quickly as possible.  And not by making the culprits run their mouths on television. "Nooooo! Don't throw us in that briar patch!"

    The filibuster was created by accident when the Senate eliminated a seemingly redundant practice of voting on whether to vote. Senators then discovered, after a half-century of surviving just fine without the filibuster, that they could block votes by talking forever. In 1917 the Senate created a rule allowing a vote by two-thirds of those voting, to end a filibuster. In 1949 they changed the rule to require two-thirds of the entire Senate membership. In 1959 they changed it back. And in 1975 they changed the rule to allow three-fifths of the Senators sworn into office to end a filibuster and force a vote. Filibustering no longer requires giving long speeches. It only requires threatening to do so. The use of such threats has exploded over the past 14 years, dominating the decision-making process of our government and effectively eliminating the possibility of truly populist or progressive legislation emerging from Congress. This has happened at the same time that the forces of money, media, and party have led the Democrats in both houses to view the filibuster excuse as highly desirable, rather than as an impediment.

    Were the Democrats serious about eliminating the filibuster excuse, they would simply change the rule requiring 60 senators for cloture, specifically Senate Rule 22, which reads in part:

    "'Is it the sense of the Senate that the debate shall be brought to a close?' And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn -- except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting -- then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of."

    This would seem to suggest that it takes 60 senators to block a filibuster and 66 senators (if 100 are present, otherwise fewer) to end the power of 60 senators to block filibusters. But that's not the whole story. William Greider four years ago explained:

    "In 1975 the filibuster issue was revived by post-Watergate Democrats frustrated in their efforts to enact popular reform legislation like campaign finance laws. Senator James Allen of Alabama, the most conservative Democrat in the Senate and a skillful parliamentary player, blocked them with a series of filibusters. Liberals were fed up with his delaying tactics. Senator Walter Mondale pushed a campaign to reduce the threshold from sixty-seven votes to a simple majority of fifty-one. In a parliamentary sleight of hand, the liberals broke Allen's filibuster by a majority vote, thus evading the sixty-seven-vote rule. (Senate rules say you can't change the rules without a cloture vote, but the Constitution says the Senate sets its own rules. As a practical matter, that means the majority can prevail whenever it decides to force the issue.) In 1975 the presiding officer during the debate, Vice President Rockefeller, first ruled with the liberals on a motion to declare Senator Allen out of order. When Allen appealed the "ruling of the chair" to the full Senate, the majority voted him down. Nervous Senate leaders, aware they were losing the precedent, offered a compromise. Henceforth, the cloture rule would require only sixty votes to stop a filibuster."

    If the Democrats eliminate the filibuster excuse, our job will be to organize and agitate immediately to take full advantage of this rare opportunity for actual representative government in the Senate before they think up new excuses. (The House being in Republican hands is the most obvious excuse for Democrats right now and really ought to be sufficient for them.)

    Greider proposes reducing to 55 percent of the Senate the number of senators needed for cloture. I propose reducing it to 50 percent plus one. Either way, nobody is proposing that a minority be empowered to decide anything, only that a majority finally be permitted to (even to the extent allowed by an anti-democratic body like the U.S. Senate in which both Wyoming and California have the same number of senators).

    Let's not glorify antidemocratic processes by turning them into marathon speeches by gangs of 41 who will not be at all toubled to take their turns at the microphone.  I'm told that current proposals would require some portion of the 41 offenders to stay on the Senate floor, thus impeding somewhat the wining and dining with lobbyists and biographers.  But the trade-off of the national microphone might be worth it to them, especially as they would be seen as willing to actually take a stand, unlike the spineless-looking schmucks who won't eliminate the filibuster.

    The proposals currently being considered by Senate Democrats could be a dream come true for both parties: free advertising of their cause for Republicans and free advertising of their excuse for Democrats.  It's win win.  But you know who loses.

    David Swanson's books include "War Is A Lie." He blogs at http://davidswanson.org and http://warisacrime.org and works as Campaign Coordinator for the online activist organization http://rootsaction.org. He hosts Talk Nation Radio. Follow him on Twitter: @davidcnswanson and FaceBook.


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