Monday, February 1, 2016

Maine Wire: The Filibuster Update…

The Maine Wire recently ran an item of ours extending an earlier discussion of the filibuster, and we’re copying it here for your reading pleasure.  If you prefer reading it on their web site, you can find it here:



More than three years ago, The Maine Wire ran a brief item of mine on the filibuster concept memorialized in U.S. Senate rules; it read as follows: (note that the Maine Wire did not run this prior item, but substituted its link for editorial purposes.)

The Filibuster: Hypocritical Bi-Partisan Duplicity of the Most Transparent Sort

Wouldn’t you just know it; the venerable Senate filibuster is back in the news. The Maine Sunday Telegram featured a Maine Voices column on the subject on December 9th. Terms like ‘the nuclear option’ and ‘the constitutional option’ were on display.

Senator Chuck Schumer, that unctuous 55 gallon drum of sanctimony, is trying to ride the fence on the issue, claiming the filibuster is vital to senate operation, but that ‘Republicans are abusing it.’ This loosely translates to “hey, we Democrats want to use the filibuster any way we please, but you Republicans should go pound sand.” You can always count on Chucky to lobby for an unfair advantage. The same talking point was advanced by the author of the column cited above. Funny how that works.

Whenever I hear the term filibuster, visions of Senator Foghorn C. Leghorn come to mind. Or perhaps Senator Bobby Byrd in his prime, bloviating for hours on end in his stentorian style, pomposity on full display. Others may envision Jimmy Stewart’s role as Mr. Smith, as the Maine Voices column did, but not me. Frankly, the thought of Harry Reid, who comes across as the Head Mortician of the Senate, negates any illusion that a Jimmy Stewart type could have a meaningful role in our government.

The nagging question now is where our newly elected Senator, Angus King, will leave his footprints in the sand on this beach. What a perfect challenge for Mr. Independence, the self-described solver of intractable problems. Never mind that he quickly confirmed his liberal Democrat loyalties when he announced he’d caucus with Reid’s embalmers. Let the burial of the American founding proceed as planned.

At times like this, when things seem confused, we know that we can rely on the New York Times to clarify things. So I did a bit of research, and came up with this:

A January 1, 1995, New York Times editorial on proposals to restrict the use of Senate filibusters said this:

In the last session of Congress, the Republican minority invoked an endless string of filibusters to frustrate the will of the majority. This relentless abuse of a time-honored
Senate tradition so disgusted Senator Tom Harkin, a Democrat from Iowa, that he is now willing to forgo easy retribution and drastically limit the filibuster. Hooray for him. . . . Once a rarely used tactic reserved for issues on which senators held passionate views, the filibuster has become the tool of the sore loser, . . . an archaic rule that frustrates democracy and serves no useful purpose.

A March 6, 2005, New York Times editorial on the same subject read as follows:

The Republicans are claiming that 51 votes should be enough to win confirmation of the White House’s judicial nominees. This flies in the face of Senate history. . . . To block
the nominees, the Democrats’ weapon of choice has been the filibuster, a time-honored Senate procedure that prevents a bare majority of senators from running roughshod. . . .
The Bush administration likes to call itself “conservative,” but there is nothing conservative about endangering one of the great institutions of American democracy, the United States Senate, for the sake of an ideological crusade.

Who says you can’t have your cake and eat it too? At least on the editorial pages of our elite media, who for better or worse, serve the willfully uninformed.


A few weeks ago, some friends and I engaged in a discussion of the same subject as it relates to politics and the challenges of governing at this moment in our history.  We have a ‘divided government;’ the U.S. Senate consists of 54 Republicans, 44 Democrats, and 2 independents.  The U.S. House consists of 246 Republicans, 188 Democrats, and 1 seat is vacant.  The Presidency, obviously, is held by a Democrat.

Simply put, Republicans have an overwhelming majority in the House, and should be a formidable factor in governance of our Nation and the direction in which it is headed.  While Republicans also have a majority in the Senate, it isn’t sufficient to overcome the ability of Democrats to block any legislation that comes before the body.  This stems from the ‘time-honored’ procedure mentioned above.

Given current congressional profiles, and the fact that the House has a new speaker, Paul Ryan, it’s easy to fall into the trap of believing that Republicans in the House should be able to exert considerable control over the legislative agenda, and hence the general direction of our government and our nation.  They can pass bills easily and send them on to the Senate.

All too easily, it turns out, because as long as the rule of 60 exists in the Senate, legislation sent over from the House has virtually no chance of being debated on the floor, let alone voted on.  This state of affairs is rationalized on the basis of ‘protecting the interests of the minority’ in the Senate.  Sounds good at first, until you realize that it does exactly the opposite for the American people, who with their votes constitute both bodies of Congress as they see fit.

Mitch McConnell, the current Senate Majority Leader, has the power, we are told, to change the rules so that a simple majority could put legislation approved by the House on the Senate floor for discussion and a vote.  When both chambers reached agreement on the bill, it would be sent to the President for his signature or veto.

In reality, however, because of the Senate rule, legislation approved by an overwhelming majority in the House dies in the Senate because Republicans don’t have a filibuster proof majority.  So the Senate constipates the gastro-intestinal system of Congress, blocking legislation from passing.  Absent a super-majority, for all intents and purposes, the Senate amounts to a useless chamber of self-absorbed patricians, given to bloviation and power preservation.


(ed note:  the Maine Wire elected not to run this photo included in the original submission; we think it captures Senate countenance quite nicely)

This holds true no matter which party is in the majority, as long as they have 59 or less seats.  Think about the numbers for a moment, and you realize that rarely will one party have a super-majority.  Either party holding between 41 and 59 seats implies that the Senate, under current rules, is a feckless bunch of blowhards inhabiting the ‘most exclusive debating club’ in the world.  They’re more interested in strutting then they are in leading.  Like the Beefeaters, they amount to ceremonial “yeoman guardians extraordinary.”

This wouldn’t be so bad, I suppose, if the only thing they did was neutralize the majority powers of the House in situations like we have today.  Paul Ryan could shepherd a bill through the house to a compelling vote of approval, and the Republican held Senate would be powerless to act upon it.  Unless, of course, the bill was so irrelevant that it has wide bi-partisan support.

Now imagine that the Senate is as we currently have, but the House had a Democrat majority.  The same circumstances would apply.  The Senate would lack a filibuster proof majority, and would therefore be unable to act upon legislation sent over from the Democrat majority House.

In other words, unless the Senate has a constitution of 60 or more members of one party or the other, it not only can’t act decisively on its own, it neutralizes, or emasculates the House, regardless of who controls it.

Which is to say that in the limit, the super-majority rule (filibuster) in the Senate will almost always neutralize the powers of the Legislative Branch of our Federal Government.

Or in other words, enable the unitary presidency, in which the executive rules by fiat and executive order.

This is, in other words, about much more than the arcane rules of a small body of elected elites; it is about the very ability of elected officials to exercise the powers granted to them by the Constitution and the will of those who elected them.

This is not a good thing.  A legislative branch that can’t act, as appealing as that can sound in some contexts, is a worthless assemblage of eunuchs, and with the challenges facing us today, both fiscally and existentially, this is a death sentence for the American experiment.

Especially with an executive determined to make transformative changes to this country.  Under the circumstances, this stubbornness on the part of Mitch McConnell (at the moment) seems near-suicidal.

Surely there must be a more responsible way of going about things.

In the meantime, is it any wonder the candidacy of Donald Trump has so much traction?


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