ORIGINAL INTENT

For people who like to portray themselves as Constitutional scholars and the modern executors of the Founders' intellectual estate, Republicans sure play fast and loose with the sacred text when it suits their needs.

Here is the briefest possible explanation for why the Senate changed the filibuster rule we all remember learning about in junior high civics class. Chances are most people who know what it is recognize it because the name sounds vaguely hilarious.

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Yes, with three years remaining in Obama's second term the Senate Republicans have already nearly tripled the previous record for filibusters against the party in control of the White House. Worse, they have abandoned even the thinnest pretext of principle behind their use of the filibuster to block presidential appointments. They no longer bother mounting long, windy, insincere speeches about how the president's appointees are just Too Liberal and Activist Judges. No, for the past few years their approach has been essentially, "We're going to block all of these because we don't like you."

Typical Republican approach: break government, declare that government is broken, campaign against government. Repeat as long as rubes will buy it.

That a rule change was necessary is beyond obvious at this point. Yes, at some point in the future it will be used against Senate Democrats when they find themselves in the minority; that is something they will have to live with. This made sense in both the long and the short term. I'm sick to death of hearing about how the Senate is thinking about changing the rules. They've been talking about it for a decade. Shut up and do it already. It was starting to feel like Duke Nukem II, for christ's sake.

Now that it's over and done with, I do have a few lingering issues for our Constitution worshiping brethren on the right. They're very big on upholding the intent of the Founders, right? Right? Of course they are. Just ask them.

First, the word "filibuster" appears nowhere in the Constitution. It's a simple Senate rule. It is to the Senate what the phrase "under God" is to the Pledge of Allegiance – inserted after the fact but misrepresented as part of the original intent. Anyone who brings up the Constitution as a reason why the rule cannot be changed is the purest breed of dolt (Art. I, Sec. 5: "Each House may determine the Rules of its Proceedings…")

Second, does not the Constitution give the Senate the duty to ensure the operation of the government by facilitating the presidents' appointment of judges, ambassadors, and other officials? Sure, we could quarrel over the meaning of "advice and consent" here, but for people who claim to rely on the intent of the Founders it is abundantly, sparklingly crystal clear that the authors of the document had zero intention of the Senate minority using rules to prevent the body from approving appointees for partisan political reasons. Find some archival evidence that Madison said, "Well if you don't like the president, it's cool to abdicate the constitutional responsibilities of the Senate." I'll wait.

Third, it strikes me as hilarious that some Republicans appear to believe the party will score political points with this issue. The very idea that Americans even know what Senate rules are, let alone care that they have been changed, is laughable. As someone who studies public opinion, I've had this conversation a few times with folks who study Congress – you can't poll people on things like Senate rules and congressional procedure because people have zero idea what any of those things are. I'd assume, thanks to Hollywood, that the filibuster is somewhat more recognizable, but in an electorate in which 1/3 of eligible voters don't know which party controls Congress it's highly doubtful that the GOP will be able to build on…what, pro-filibuster sentiment? Do they think that is a thing that exists?

The simple reality of our system is that at some point you have to stop fighting election results. At some point the minority party has to accept that they lost and that they will have to do some things they don't like because the other party is in control. Except that now the GOP can't accept that and can't stop fighting, ever, because the Tea Party is looming over them like a cloud – a crazy, illiterate cloud – ready to primary challenge any member who fails to refuse absolutely to perform any part of his/her responsibilities that abets Obama in any way. In that light, we could argue that eliminating the filibuster did Senate Republicans a favor, as they no longer have to go through the futile kabuki theater of mounting a filibuster against every single act the Senate undertakes. That must be tiring, after all.

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28 Responses to “ORIGINAL INTENT”

  1. Xynzee Says:

    I always thought the filibuster was an underhanded way of undermining the democratic process. Then I got older and realised that sometimes in this world there needs to be a mechanism for someone to be able to make a principled and moral stand that could derail a horrible law. Not a "I don't like you so I'm taking the ball!", but a "There are no WMDs and you know it, and this is an immoral act to waste 1000s of lives for your financial gain!" But you have got to take the stand and be there to run down the clock, a la Wendy Davis. None of this going to the bar or golf course BS. And certainly no changes in the rules during the filibuster, FU!! Tex-arse!

  2. Monkey Business Says:

    While I understand the reasons why the filibuster was abolished for executive nominees and federal judges, I am deeply concerned about the long term ramifications.

    Right now, the rules change continues to allow filibusters on Supreme Court nominees. Let's say that in 2014, the GOP gains control of the Senate, and in 2016 Ted Cruz is somehow elected President. Days into Cruz's first term, Ruth Bader Ginsburg, Elena Kagan, Sonia Sotomayor, and Stephen Breyer are all hit by a bus and Antonin Scalia has his brain transplanted into a robot body so that he can serve forever.

    Who are they more likely to appoint: the next Souter or the next Scalia?

    For the sake of argument, let's say that President Cruz nominates four firebreathing conservative judges, all around the age of 40. They go to the Senate, and Democrats in the minority filibuster them on the grounds that they are morons and plan to drag the judiciary and the country kicking and screaming back to the early 1800s. The Senate GOP decides to go even more nuclear and eliminates the filibuster entirely. Now you have a Supreme Court and a judiciary packed with firebreathing conservatives, plus Justice RoboScalia, who could serve for thirty or forty years.

    The solution, of course is to ensure that the GOP does not win the White House until their collective fever has broken. Personally, I'm more inclined to believe that the GOP will eventually condense itself into an ideologically pure minority party kept alive by old white people, racists, conspiracy nuts, and various other fringe elements with little if any actual federal power. The alternative is they remain a viable political party, and I'm not sure that's going to happen.

  3. moderateindy Says:

    Here's the problem with the argument that floks like Monkey Business puts forth. He acrtually believes that the current conservative party gives a rat's rooty tooty about precedent. As if they wouldn't get rid of the rules over Supreme court confirmations in a second if they found it to be to thier advantage. They don't need the excuse that the Dem's changed the rules on the lower court nominees, in order to justify changes to the top court. You're high if you think for even one moment that not changing the rules now would deter them in any way changing the rules to suit them at a future point. All you need to do is look at how badly they have abused the current fillibuster rule to realize that they don't give a crap about the spirit of the rule, or whether or not the Senate functions. Bottom line, the only reason that they wouldn't change the rule for Supreme's, is that under the current system they have still been able to push through extremely conservative nominees, while Dems have not been able to get very progressive candidates through. So it behooves them to keep the current system as it is a net plus for thier ideology.

  4. Talisker Says:

    The graph is not as convincing as Ed and Mother Jones seem to think. The relevant number is not total number of filibusters per President, but the frequency of filibusters when the President's party controls the Senate.

    For example, in the first 6 years of Reagan's term the Democrats controlled the Senate and had no need to filibuster. In 1987-89, the Republicans controlled the Senate, and the Democrats mounted 113 filibusters, or about 56 per year. In the first 5 years of Obama's turn, the Democrats have always controlled the Senate, and we have 307 filibusters, or about 62 per year. Yes, this is a simplification, and the overall rate has risen, but at face value the recent rate of filibusters is not revolutionary.

    It may be that the "true" rate of filibusters under Obama is higher, because the Democrats are not bothering to bring things to a vote if the Republicans make it clear they will filibuster. I have no idea how often that happens or how you would measure it.

    That aside, the real difference is not the frequency of filibusters, but the kind. If the Republicans wanted to filibuster major pieces of legislation, the Democrats don't have to like it, but that is the sort of case for which the rule was intended. But as Ed correctly points out, the Republicans are blocking appointments of judges and bureaucrats which should be absolutely routine and are necessary for the federal government to function. It appears it is this behaviour which has finally motivated the Senate Democrats to say, enough is enough.

  5. US in the UK Says:

    God, just reading this makes my head hurt in anticipation of going home (from the UK) for 2 weeks at Xmas to visit the folks in southern Georgia (i.e. ground zero for the Tea Party faithful – sorry, Texas, you have oil to fall back on. GA, not so much).

    I think it'll be best to stay away from the drinks and the tv at "news hour".

  6. Talisker Says:

    it's highly doubtful that the GOP will be able to build on… what, pro-filibuster sentiment? Do they think that is a thing that exists?

    I'm sure the public at large is indifferent to this sort of thing. But the "crazy, illiterate cloud" of the Tea Party (good one) may not be. "ZOMG tyrant Obama is crushing the hallowed rules of the Senate" has just enough Truthiness to get the attention of the headbangers on the far right, and make them that much angrier and more likely to vote.

  7. Talisker Says:

    D'oh, I misread the Senate control in Reagan's era. Insufficient coffee on Monday morning. The Senate Democrats were in the minority for 6 years under Reagan, so that's less than 20 filibusters per year. Things really have changed.

  8. Talisker Says:

    My original point stands though — "filibusters per President" is the wrong measure. For example the Senate Republicans were a minority for only 2 years under Clinton (in 1993-95), yet still managed 80 filibusters. That's 40 per year, which is not too far off the 56 per year faced by Obama. Interesting that the "more reasonable" Republican party of yesteryear still deployed the filibuster so often.

    Size of majority would make a difference too. In 1993-5 and 2008-9, the Democrats had a huge majority in the Senate, so the Republicans couldn't stop things by just persuading one or two Democrats to flip, leaving the filibuster as their only option. The reverse applies to the Senate Democrats in 2001-05; with party control split 50-50 (with VP Cheney's tiebreaking vote) or 51-49, filibustering was less likely to be necessary.

    I'm sure that growing use of the filibuster really is a problem, I'm just saying that the graph misleads us as to the scale of what is happening.

    Apologies for spamming with multiple comments, I'll stop for now. :-)

  9. Seth Says:

    Congratulations, Ed. Your first sentence wins the Understatement of the Century Award. The bad news is that you had to say the rest of it.

  10. c u n d gulag Says:

    Harry Reid and the Democrats didn't push the button on "The Nuclear Option."
    The struck "A Preliminary First Strike."

    Anyone who thinks the Republicans, who have grown ever more stupid, more ignorant, and more violently insane, wouldn't, when they got back in control have eliminated ALL filibusters, is naïve.

    And you know what?
    If 'We the people' elect a President Cruz, or Paul, or Christie, or Rubio, or whichever stupid, ignorant, and insane Conservative mofo 'We the people' might in the future elect, let 'We the people' feel the full wrath of their stupid, ignorant, and violently insane mofo-ing policies.

    I’m tired.
    I’m tired of stupid people voting for stupid and corrupt politicians, whining about it, and then voting in even stupider and more corrupt politicians.

    I’m tired of this stupid bullshit.
    The rich people have won this class war because they’ve convinced, for one reason or another, Privates to take pay-cuts, to increase the salaries of the Generals.

    And if you believe that it's raining when the Generals are pissing on your fucking heads, then that's your fucking"right," "MORANS!"

    Sadly, there's not much the rest of us can do, when you're trying to convince yourselves that the "Golden Shower" from the Generals, is hurting the N*ggers, C*nts, Sp*cs, Ch*nks, F*gs,, EEEEEEBIL MOOOOOOZUMZ, R*g and D*t heads, and Red Inj*ns, etc., more than you.

  11. Matt Says:

    @Monkey Business: "Now you have a Supreme Court and a judiciary packed with firebreathing conservatives"

    d00d, we have that NOW. The whole point of the teahadi contingent blocking all nominees was to make sure that the courts *stayed* packed full of RWNJs.

    And as others up-thread have said: if we, as a country, manage to epically fuck up bad enough to elect a President Cruz then we DESERVE the consequences of said fuckup. At least half of the current Congressional dysfunction is due to this mechanism not working correctly – Kansas, etc can keep electing utter nutballs who think the entire federal government is unconstitutionimal but still get their highway funds, crop subsidies, disaster relief, etc.

  12. Hugo Says:

    You mean Duke Nukem Forever. Duke Nukem II came out in 1993.

  13. Major Kong Says:

    Does anyone really think that the Republicans wouldn't have gotten rid of the filibuster within 5 minutes of gaining a majority in the Senate?

    They were threatening to do it back in 2005 and they certainly haven't become more moderate since then.

    The only reason they didn't get rid of it in 2005 is that the Democrats basically promised not to use it.

  14. freeportguy Says:

    "It's a simple Senate rule." Or as others' have called it, an "unwritten rule", a "gentlemen's agreement".

    If one expects conservatives to abide by any unwritten rule or gentlemen's agreement, one is in for a deep disappointment and needs a serious wake up call. Heck, they can't even abide by written rules! But they sure LOVE to enforce rules, imaginary or not, onto OTHERS!

    I, for one, compare Senate's filibuster to a building' fire alarm system: an essential part of the Senate, but whose necessity and efficiency are inversely proportional to the number and frequency of use, and whose quality can only be determined by the legitimacy and integrity of the true purpose behind its use. Any abuse delegitimizes its purpose.

  15. Well mostly Says:

    It's impossible to make a gentlmen's agreement if the other party is not a gentleman. I've tried. Many have. Doesn't work. Stop trying.
    Remember playing games as a child? There was always one who wanted to make lots of rules. Wanted to win, or not lose, so bad they were ready to take the fun out of the game. They grow up and some get into the senate, etc. Still pricks killing it for everyone else. They don't care. Impervious to criticism or reputation. They want their way. Period.
    Finally, the Dems did something about it and turned the rules on the rule kings. Good for them.

  16. JohnR Says:

    "..at some point you have to stop fighting election results.."

    Well, considering that we're dealing with the people who are still trying to overturn the the results of the Grant/Sherman campaign, that may be a bit of optimistic thinking.

  17. middle seaman Says:

    Republican by definition don't accept Democratic presidents. See: Clinton. The Republicans have become the WASP version of Hezbollah. And it may be getting worse.

  18. Eric Says:

    But but the Republicans will retaliate by nominating people like Scalia and Alito! Wait a minute…

  19. J. Dryden Says:

    Monkey Business hit this before me–the notion that Harry Reid and his party were hesitant to "go nuclear" because someday they'd be in the minority and would want to be obstructionist themselves, was seriously idiotic on their part.

    The NYT Editorial Board called it–actually, called Reid out in language that came about as close to Mamet-ian as I've ever seen: Look, jackass, when the shoe's on the other foot, the GOP will absolutely, positively, it's-not-even-a-question fuck you guys over by going nuclear. They will do it. And get what they want. So just fucking go nuclear yourselves, and get what you can for as long as you can. The only choice you have here is whether or not you're going to wait for them to fuck you, or whether you're going to fuck them and do some good, you limp-dicked wonders.

    I'm slightly paraphrasing, but I like to think that was the first draft.

  20. Gerald McGrew Says:

    it's highly doubtful that the GOP will be able to build on…what, pro-filibuster sentiment? Do they think that is a thing that exists?

    Judging by the rhetoric on right-wing AM radio, the theme is "Obama's unprecedented power grab, so he can stack the courts with liberal activist judges", and some of them are tying that back to "judges on courts that will be hearing our lawsuits on Obamacare".

    All you have to do is string together a series of buzzwords/dog-whistle terms and the faithful will lap it. Sarah Palin showed just how far you can go with that model.

  21. Bernard Says:

    gosh, the Republicans have already packe the Appeals Courts, Supreme Courts and the District Courts with nutcases, activists and rightwinger idiots. and now Reid decides to go Nuclear. lol

    kind of late to worry about closing the barn door. the horses have run away.

    the Republican idiots and their base, the Southern Whtie Male/voters, have screwed up this country so well, i think it's way to late.

    Alito, Roberts, Scalia, Thomas are proof that there is very little more damage done to America can be done. once the Republicans get back in control, and they will due to the immense stupidity of the Republican/ignorant voter, they will just finish America off, selling what was not sold while Obama was in office. lol

    and they say, What me Worry? lol

    At least there are places left where history won't be rewritten to absolve the Right wing idiots here in America.

    Thanks Republicans, Palin kind of says it all. your concept of America makes words fail. as well as America. Go Nuclear and just finish us off , quickly.

  22. Nate Says:

    Just a small gamer-nerd quibble. I think you meant to reference Duke Nukem Forever which took like 15 years to come out, which is an insanely long time in development (and it was a really shit game). Duke Nukem 2 only took a few years to produce and release.

    That said, I'm glad of the filibuster repeal. Maybe the Senate will actually start working a little better.

  23. Major Kong Says:

    @Nate

    At the rate Valve is going, Half-Life 3 is going to take longer than that.

    Assuming we ever see it.

  24. sad Says:

    "as long as the rubes buy it."

    What rubes? I don't buy it. Aint I merkan enough for you? Who do you mean?

  25. OrwellianDoublespeaker Says:

    It's always difficult to participate in partisan bickering in which anybody who disagrees with one side is automatically lumped in with the other, usually with a plethora of snarky pejoratives. But here goes anyway…

    As neither a Republican nor Democrat and (consistent with the Constitution) preferring the rule of law to the rule of men, I find it appalling (and at the same time all too familiar) that the Democrats ignored the rules of the Senate when changing the filibuster rule. Aren't there any Democrats left who care about the rule of law?

    While partisan bickering always goes for low-hanging fruit, it's my understanding that there are practical reasons for blocking the latest appointments to the D.C. Circuit, not the least of which is that the work load there (in terms of appeals filed and terminated) doesn't justify three more judges. What practical purpose do these three additional judges in an already underworked Court serve?

    Then there's this "we won, get over it" silliness. The US Constitution was designed to ensure the protection of the minority and avoid "tyranny of the majority" (AKA democracy). Bills proposed by the majority are not supposed to fly through unopposed. Compromise is not the goal, especially when legislation involves powers not enumerated in the Constitution. Outright rejection is the only moral choice for any legislation or action (including Executive Orders) that are not enumerated, especially when all federal elected officials vow to uphold the Constitution. Anything less is mob-rule democracy, and history shows that's a damned ugly thing.

    FWIW, I would be equally offended if a Republican House or Senate majority violated its own rules to make it easier for a Republican president to rule by Executive Order.

  26. sad Says:

    "Republicans sure play fast and loose with the… (Fill in the blank. Starts with a T).
    Right, right. 2 thousand years ago complained about the same thing. Conservatives are liers. Move along.

  27. Barry Says:

    Monkey Business Says:
    November 25th, 2013 at 3:13 am

    "While I understand the reasons why the filibuster was abolished for executive nominees and federal judges, I am deeply concerned about the long term ramifications."

    The current path was that the GOP would make sure that there was a record number of vacancies in January, 2017. Given a GOP president, they'd *start* with a record number of vacancies to fill, and judging from 2005, they'd either back the Dem leadership down, or would kill the (judicial) filibuster themselves.

  28. Barry Says:

    Talisker Says:

    "The graph is not as convincing as Ed and Mother Jones seem to think. The relevant number is not total number of filibusters per President, but the frequency of filibusters when the President's party controls the Senate.

    For example, in the first 6 years of Reagan's term the Democrats controlled the Senate and had no need to filibuster. "

    Please note that in the last two years of the Bush II debacle, the Democrats controlled the Senate, but Bush could veto everything, and he was not up for reelection. Nevertheless, the GOP set a new record for filibustering.