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Thursday, February 12, 2009

Bring back the filibuster

My procedural take-away from the stimulus story is that the Senate needs to bring back the filibuster--the Jimmy Stewart/Strom Thurmond-25-hour-talk-a-thons. The point was driven home by this morning's story on NPR about last night's compromise, which stated that the support of the three Republican Senators was necessary because "60 votes are needed for passage in the Senate." This is a classic example of a statement that is true but not accurate.

Sixty votes are not necessary for passage in the Senate. Fifty votes are necessary for passage* in the Senate; 60 votes are necessary to allow a vote and a determination on the merits of the legislation. And while the former is necessary for the latter, they are not the same and should not be treated the same or reported as the same. It would be a bit like saying "In order to prevail on your Title VII claim, you must first exhaust your EEOC remedies" or "In order to prevail on your fraud claim, you must first state your claim with particularity." Yes, you need to do those things to get your claim into court and have it move forward to a consideration and determination on the merits. Of course, that is necessary to ultimately prevail on the merits. But that is because you always have to comply with procedural rules. It does not make procedural compliance part of prevailing on the merits (the substance, if you will).

There is, of course, nothing wrong with procedural arguments or imposing procedural hurdles to merits determinations (assuming those hurdles are not so rigorous as to prevent meaningful merits resolution). But the conflation of procedure and substance is significant here because it allows the filibustering minority to block consideration on the merits without having to speak in procedural terms. Republicans are able to argue why they disagree with the bill and why the bill should not be passed. The real hold-up, which they are not required to talk about, is that they are preventing a vote on the merits. Compare civil litigation: If you want to argue that the case should be dismissed for lack of personal jurisdiction, then you better talk about International Shoe, not about why what your client did not constituted fraud (in fact, arguing the merits may waive the jurisdictional argument).

Now, formally, filibusters and cloture are about cutting off debate; 60 votes are necessary to halt debate on the bill. So substantive arguments ("This is a bad bill because . . .") are perfectly proper. But changes to Senate rules no longer require continuous debate. Rather, on threat of filibuster, the bill generally is pulled off the agenda and the Senate goes on with new business or, as here, the bill is revised (arguably for the worse) to get over the 60-vote line.

Lost in all of this is democratic accountability. Filibusters have become costless--the minority party (or, as here, a few swingers from that party) can hold up legislation through the mere threat of a filibuster--knowing that it lacks 60 votes to bring the bill to a vote (i.e., to cut-off debate), the majority party is helpless. And the minority can do this without paying any political price. It can block passage through a procedural mechanism without having to speak in procedural terms or to openly acknowledge to the public the use of a procedural mechanism--and to pay a political price if the public becomes angry that procedure is being used to block important and popular legislation. As a result, the number of filibusters for the past ten Congresses (going back to the late 1990s) has increased ten-fold. What was once rare has become the norm. So much so that the public now is under the impression, enhanced by sloppy political reporting, that the Senate has a genuine super-majority requirement.

So I propose either or both of two solutions:

1) Bring back the talkathons. If a filibuster really is about unlimited debate, then the minority party must continue debate, to the exclusion of all other Senate business, as long as the chair keeps the Senate in session. Maybe the public will view the filibusterers as heroic individuals standing up against a corrupt majority--as Mr. Smith; maybe (more likely) the public will be angered by what it seems as gamesmanship based on on wrong ideal--as Thurmond as unreconstructed segregationist. But at least the public gets an honest view of what really is going on.

2) If the announcement of a filibuster is enough to prevent a vote even without non-stop debate, any discussions must be framed only in procedural terms. No speeches or public statements about why the bill is a bad idea; only speeches and statements about why it is such a bad idea that it is not deserving of a vote on its substance. If this is a procedural move, make it clear that it is a procedural move.

I suppose a third solution would be to be honest--amend the rules to require a true 60-vote supermajority for passage of legislation.

I am not necessarily anti-filibuster. I am for political transparency and a belief that there is some identifiable difference between procedure and substance. By the way, lest anyone believe I am violating our sacred Prawfs motto--I made the same basic argument while teaching Legislation in spring 2003, when my favored party was in the minority.

  • Vice President Biden breaks any ties at a full-speed Senate. Now the Senate is at 99 while we await resolution in Minnesota, so 50 does it without a tie-breaker. Fifty-one is necessary when the Vice President is from a different party than the Senate majority.

Posted by Howard Wasserman on February 12, 2009 at 11:13 AM in Civil Procedure, Constitutional thoughts, Current Affairs, Howard Wasserman, Law and Politics | Permalink


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I agree with your points only when my party is the majority and I disagree when my party is the the minority.

Posted by: anon | Feb 13, 2009 11:27:05 PM

The 60 vote reform reduced the number of votes necessary to end a filibuster from 67 to 60. I believe that the reform was pushed through during the Johnson administration.

Unanimous consent is still necessary for a number of Senate procesdures, and one senator can still gum up the works. I am not familiar with Senate rules, and do not know the full extent of this power. I believe -- perhaps erroneously -- that unanimous consent is necessary to forego the reading of the full test of a proposed bill. A full reading of the stimulus bil would take a while, to say the least.

Posted by: jt | Feb 13, 2009 10:35:03 AM

Wait, though--demanding both a "real" (talking) filibuster and the 60-vote requirement is having your cake and eating it too, right? In Ol' Strom's day, you needed all 100 votes to get cloture, so to speak. As long as one senator wanted to talk, a vote couldn't be taken, because the Senate operated on unanimous consent. The 60-vote cloture rule was a *reform*, adopted to keep a single member from being able to block a vote. As part of the reform, the requirement for continuous speech was waived. At least, that's how I understood things, but maybe someone with deeper knowledge can explain why this is wrong.

Posted by: Jay | Feb 13, 2009 2:15:13 AM

I totally agree with the suggestion that proposal (#1) that filibuster should be a true filibuster in that debate continues until 60 Senators decide it is actually time to end debate and move on to other business. And I felt the same way when this issue came up in the Republican-controlled Senate when Democrats threatened to use it to block judicial nominees. As for the "reason" or "purpose" for having the filibuster, I don't see anything to be gained in framing the discussion in judicial terms (procedure v. substance) when legislative power is at issue and I don't think the public or journalists necessary should care either. John Adams may have believed Thomas Jefferson was not treating the vice Presidency in the way it was intended, but Jefferson was exercising his power within the bounds of the law, and for better-or-worse that is the precedent we've inherited.

Posted by: Sean C. Duffy | Feb 12, 2009 10:27:57 PM

this article seems to sum up the precise procedural situation about whether the stimulus could've been forced to a filibuster; i've seen this laid out similarly elsewhere.


disclaimer: i'm far from an expert on congressional procedure so i may be led astray here.

Posted by: anon | Feb 12, 2009 9:31:34 PM

Anon: Is that right? I didn't think so. Because the talk was that the Dems could have pulled this back a few months and done the whole package as part of budget reconciliation, which would have been non-filibusterable (?) and subject to simple majority vote. Which means that deficit spending does not, per se, require 60 votes. Plus, the Senate held two separate votes, which I assumed was one for cloture and one for passage.

JP: I believe that at some point the public, if aware of exactly what was going on, would begin to demand an up-or-down vote or would become fed-up with repeated "we need to study more" arguments. At some point, the public is likely to say "enough study--vote on the damn thing, already."

Posted by: Howard Wasserman | Feb 12, 2009 5:02:30 PM

nitpick: i believe the reason 60 votes were needed for the stimulus was because it involves deficit spending, not because of the filibuster threat.

Posted by: anon | Feb 12, 2009 4:09:00 PM

I would vote for either (1) above, or the so-called "nuclear option." My preference would be to retain the filibuster, but it should be hard to invoke.

Maybe it could be like the instant replay in pro football. You get 3 per session, but if you ultimately lose on the substantive vote, it costs you a time out (or something).

Posted by: Bruce Boyden | Feb 12, 2009 2:38:28 PM

This is a truly awesome post, Howard. If we're not going to have majority rule, let's be frank about it -- and change the rules or at least make those who want to filibuster get really good at reading the phone book, so the country can see what they are up to.

Posted by: Vladimir | Feb 12, 2009 2:19:34 PM


The distinction between substance and procedure is a distinction without a difference.

As long as the Senate has a rule permitting filibusters it will require a super majority to pass legislation or otherwise conduct Senate business.

The principal reason the rule remains is not to block legislation. Its purpose is to assure Senators input into all of the myriad of local issues involving the Federal Government, especially appointments. It gives real bite to the phrase "Senatorial Courtesy."

Posted by: John Davidson | Feb 12, 2009 2:11:53 PM

I'm not sure that the distinction you suggest in # 2 has any meaningful existence. How will a speech about "why the bill is a bad idea" be any different from a speech about "why it is such a bad idea that it is not deserving of a vote on its substance?" Presumably it will be the same speech, except that it will end: "... and accordingly, the Senate should [have more debate/get more information/take time to reconsider X, Y, & Z] before we hold a vote on its substance.

Also, I haven't paid a lot of attention, but isn't that how the stimulus bill hold-up has been framed? (e.g., 'We should take more time to craft a better bill, rather than rushing it through.')

Posted by: JP | Feb 12, 2009 12:57:23 PM

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