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April 07, 2005

If it ain't fili-busted, don't fili-fix it.

By Jim Dallas

There seems to be some dissent in the blogosphere about Democrats vowing mutually-assured destruction as the Republicans mull going "nuclear" on the filibuster. Some ask, is the filibuster even worth fighting for?

The fili-doves includes Matt Yglesias and Nathan Newman; the hawk-ibusters include the sagacious Mark Schmitt. Kevin "Switzerland" Drum is sitting on the fence.

As for me, I suppose it's true that one could argue that the filibuster is anti-democratic; but then again, any body that is Constitutionally required to give Wyoming the same number as votes as California is not exactly a democratic institution. On the contrary, the Senate was expressly designed largely to impede progress and trample the will of the people (err, well, state legislatures elected by white property-owning men). When the powers that be decide to deal with bigger obstructions to democracy, such as the electoral college and gerrymandering, maybe then we can talk about nuking the filibuster under such pretenses.

Posted by Jim Dallas at April 7, 2005 07:41 PM | TrackBack


As an undergrad poli-sci major in the 60's I seem to recall (yeah--thru that psychedelic blue haze) that our American political system is based on the twin pillars of majority rule and minority rights. That is, the majority does indeed carry the vote but that certain rights of the minority are protected in order to protect against the tyrannt of the majority. Filibuster anti-democratic? On the contrary--it protects the very existence of the democratic system.

Posted by: Montie Guthrie at April 7, 2005 09:53 PM

I make the argument that we should be wary of the possibility for rule by the masses.. the very thing our forefathers warned us about in Fed. 10.

Posted by: Taylor at April 8, 2005 10:07 AM

The US Senate and the electoral college are both addressed in the Constitution while the filibuster is not. The filibuster may be time honored, but it was created by accident and it has never been used in the capacity it is being used right now. The role of the Senate is to advise and consent. The nominees have the consent of the Senate, their appointments are being obstructed by the use of a parliamentary device. You can choose to defend it, but the current use is without precedent and certainly not contemplated anywhere in the Constitution.

As for Federalist 10, the solution to preserving the rights of the minority are also addressed....and it does not make mention of the filibuster.

Posted by: snrub at April 8, 2005 01:18 PM

I see Montie has already supplied my comment, so I'll just point and nod.

Tyranny of the majority is still tyranny.

Posted by: Boadicea at April 8, 2005 01:19 PM

MovingIdeas.org is a network of over a hundred liberal organizations that include think tanks and activist groups. Currently, we are working on the "nuclear option." This plan to end filibustering on nominations is obviously a crucial issue, and we encourage everyone to learn more about it, and increase awareness of its dangers through their own blogs. You can find our pieces on the "nuclear option" here:
We hope you'll join us.

Posted by: adnan at April 8, 2005 02:11 PM

Even setting aside the GOP filibuster of the Fortas nomination (and you can bet your ass the Republicans would have continued it for longer than a week, if HHH was going to have to break the tie), the US Senate makes its own rules--that much is in the Constitution. The courts cannot change those rules (I believe); that is why the presiding officer has the responsibility of declaring which rules are unconstitutional. So arguments that the filibuster should not be used in this case just because it is not in the Constitution and just a "procedural" tactic are basically irrelevant. I agree that the majority in the Senate has the right to change the rules, if they feel they can. I also see the logic behind the GOP argument that you shouldn't need 60 votes to confirm a judicial appointment. I think axing the filibuster's possible application to presidential appointments though is not a bright idea considering the Democrats will one day regain the majority. Furthermore, Replublicans don't need to be getting all pissy and whiny that the Democrats would in turn make the Senate a real procedure hellhole. If they want to play this game, then they should be able to take what's coming. All this handwringing will obviously be settled at the ballot box. If they GOP wants to totally control the entire federal government, then they will either need 60 votes in the Senate or put up with tons of unanimous consent objections.

Posted by: RN at April 8, 2005 03:10 PM

My arument was not that that the filibuster should not be used because it is not in the Constitution, it was an argument that those who defend it as an option enshrined in the Constitution and endorsed by our forefathers are misinformed.
I'm sure the tide wil turn and D's will have control over the Senate again in the future. I'd still argue that cloture is bullshit in general and particularly on nominees and that deference should be given to the President on his nominees.

Posted by: snrub at April 8, 2005 03:35 PM

I agree that the filibuster is not enshrined in the constitution as a right of a senator or the minority faction in the Senate, but on what is your statement that cloture is bullshit based? It is my understanding that cloture itself is a relatively new phenomenon, because all business was previously conducted under the auspices of unanimous consent agreements. In that case, cloture would be a godsend to the majority since they could finally take a vote. Anyone with a more comprehensive take on Senate history than me should feel free to correct this.

That being said I disagree that the President should be given deference in regard to all nominees. His cabinet and heads of other executive departments deserve more deference than his judicial appointments in my opinion because he should be able to choose his advisors. In regard to the judiciary: since this branch is supposed to be equal to both the executive and the legislature, I would hope that the US Senate would definitely assert itself in its constitutional responsibility to advise and consent in order to balance the power of the executive.

Posted by: RN at April 8, 2005 05:55 PM

SNRUB wrote that the filibuster “was created by accident.” While the US Senate does many things by accident, extended debate is not among them.

In the first Congress of 1789, Senators filibustered over the issue of where to locate the nation's capital. When several of those early senators tried to silence members whose views they did not like, the Senate decided that it had no authority to cut off debate, unless the person speaking was offending another individual. For the next 100 years, the right of unlimited debate was taken for granted in the Senate.

Until the 1890s, filibusters were seldom used. Only then did senators begin to find extended debate attractive as a way to block bills they did not like. From the 1890s to 1917, the Senate struggled to construct rules that would end lengthy debates without threatening a member's right to fully air his views.

The first significant reform came in 1917, during the emergency sessions of World War I. The Senate agreed to a rule that would close off debate on a particular bill if two-thirds of the members voted to do so. Even after agreeing to such a limitation, however, senators could still speak for a total of 100 hours. In more recent times, that 100-hour provision has been reduced to 30 hours, and the two-thirds requirement has been reduced to three-fifths.

Some senators are reluctant to agree to a rules change making it easier to cut off debate because they realize that some day the filibuster may be the only weapon available to kill or modify legislation that might damage to their respective states or political beliefs.

That is no accident. While filibusters and cloture are procedural issues, they were resolved deliberately, not by an error of omission.

Posted by: WK Moore at April 9, 2005 08:45 AM

1) Clarity lacking on my part. Clotureis necessary. My "cloture is bullshit" comment was again pointing out that the claims, as has been made by some D senators, 60 votes are "required" to pass judicial nominees through the Senate is not true.

2) Filibuster was discovered when they realized there was no way to cut off debate. No question that the Senate has made the choice to keep it around. It was, however, a parliamentary maneuver that was not contemplated.

Posted by: snrub at April 11, 2005 10:25 AM



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