Tag: Filibuster

Time is getting short to reform the filibuster rule of the Senate. The debate and vote to reform will take place January 22, the day after Pres. Obama’s inauguration for his second term and before hearing on the president’s nominees for important cabinet vacancies.

Sign the Petition

WASHINGTON — With just a week left to influence the looming debate over filibuster reform, Sens. Jeff Merkley (D-Ore.), Tom Udall (D-N.M.) and Elizabeth Warren (D-Mass.), along with the progressive Daily Kos community, launched a petition on Monday to drum up support for a proposal that would eliminate the silent filibuster.

The hope is to maintain pressure for reform that would include the talking filibuster. Merkley, Udall and Sen. Tom Harkin (D-Iowa) have been pushing one such approach, which would still allow the minority to filibuster legislation but would require members to do so by actually standing and speaking on the floor. The Merkley-Udall-Harkin plan also seeks to streamline conference committee assignments and nominations, and eliminate the motion to proceed — a motion typically offered by the majority leader to bring up a bill or other measure for consideration.

Their proposal is competing with a scaled-back bipartisan plan introduced by Sens. Carl Levin (D-Mich.) and John McCain (R-Ariz.) and backed by six other senators. In a statement accompanying the petition, Merkley argues that “other proposals out there don’t go far enough, and won’t change the culture of obstruction that paralyzes the Senate.”

“Without a talking filibuster, obstructionist Senators will still be able to silently stall any piece of legislation they want without any accountability,” he writes.>

Filibuster reform will be first thing on the docket when the U.S. Senate convenes on Jan. 22.

Under the U.S. Constitution, a majority of each house have the power to change its rules on the first day of the legislative session by a simple majority vote. The Senate convened the first session of the 113th Congress on Jan. 3 – and the three Democratic senators introduced SR 4. Here’s what it would do:

  Clear the path to debate – Those objecting to legislation would only have one opportunity to filibuster legislation. Specifically, the ability to bring up a bill for simple debate (the motion to proceed) would not be subjected to a filibuster.

   Restore the “talking filibuster” – Those wishing to filibuster legislation must actually hold the floor and be required to actually debate the legislation. It would end “silent” filibusters where one senator quietly objects and is not required to take the Senate floor.

   Put filibuster supporters on record – 41 senators would have to affirmatively vote to continue debate, rather than forcing 60 senators to vote to end debate.

   Expedite nominations – The process for approving nominations would be streamlined, shortening the amount of time required for debate once a nomination is brought to the Senate floor.

Historically, the filibuster was intended to protect the minority party’s interests on extraordinary issues, and it was rarely invoked. But in today’s contentious political climate the filibuster has been used in record numbers (nearly 400 times in the 112th Congress) to block votes and debate, and the requirement for 60 votes to end a filibuster has proved virtually insurmountable. For example, much of the legislation organized labor has fought for to restore collective bargaining rights and to create jobs  – from the Employee Free Choice Act, to the Bring Jobs Home Act, the American Jobs Act, and many more – never received a Senate floor vote because of the filibuster threat, even though the legislation had majority support from senators.

For these reasons, SR 4 is endorsed by the AFL-CIO and some 50 progressive groups – in a coalition called Fix the Senate Now.

As our friend, Gaius Publius at AMERICAblog says:

This is my reminder – you can help hold that group together. We need strong filibuster reform, not a weaker version. Call your senator if you believe in this (click to find the phone number).

In addition, call these senators – they are the Democrats flirting with “well, I don’t really know” when the last public list of supporters was announced:

• Baucus Max MT D (202) 224-2651
• Boxer Barbara CA D (202) 224-3553
• Feinstein Dianne CA D (202) 224-3841
• Heitkamp Heidi ND D (202) 224-2043
• Hirono Mazie HI D (202) 224-6361
• Leahy Patrick VT D (202) 224-4242
• Reed Jack RI D (202) 224-4642

As of last report, these are the Democratic waverers (and shame on them). Please make the calls, now and daily (if you can) until January 22.

Sign the Petition

The unintended consequence of the Republican threats, bluster and temper tantrums over President Obama’s cabinet nominees is helping Sen. Jeff Merkley make the case to pass filibuster reform among Senate Democrats.

Cabinet pushback and the case for filibuster reform

by Steve Benen, Maddow Blog

At a certain level, Senate Republicans huffing and puffing about President Obama’s recent nominations seems irrelevant, since the GOP has a 45-seat minority. Unless Republicans intend to start filibustering qualified nominees — a step without precedent in American history — it’s pretty likely the president will be able to pick the members of his own team.

And yet, the aggressive posturing continues. Republicans killed Susan Rice’s nomination before it even happened, based on nothing but misplaced spite. They started trying to crush Jack Lew’s nomination yesterday and Chuck Hagel’s nomination last week. And don’t even get me started on Sen. Lindsey Graham’s (R-S.C.) tantrum on John Brennan’s CIA nomination.

There is, however, an unintended consequence to all of this chest-thumping: Republicans are making an excellent case for filibuster reform, just as Senate Democrats have to decide on how best to proceed.

Senate Repubs’ talk about opposing cabinet nominees is helping make the case for Merkley-Udall-Harkin filibuster reform among Senate Dems

— Steven S. Smith (@ProfStevenSmith) January 9, 2013

h/t  Jonathan Bernstein at The Washington Post‘s Post Partisan Blog

How To Destroy the Filibuster

by David Weigel, Slate

Republicans say they’ll block Chuck Hagel and Jack Lew. Democrats are using that threat to change the filibuster.

On Wednesday morning, most business reporters confirmed Barack Obama’s next choice to lead the Treasury Department: White House Chief of Staff Jack Lew. Within hours, the same reporters got a statement from Alabama Sen. Jeff Sessions, ranking member of the Budget Committee and a man who’ll have some say over whether Lew gets the job. [..]

He would oppose Barack Obama’s nominee because the nominee had a dangerous amount in common with Barack Obama.

Sessions’ outrage was manna to an unexpected group of people: Democrats. For months, a group of freshman Democratic senators have been trying to nail down 51 votes to reform the filibuster. On Jan. 22, when the Senate votes on this congressional session’s rulebook, they’ll need to keep that group together. Every time a Republican threatens an Obama nominee, their job gets easier. [..]

“If they want more debate on Chuck Hagel at Defense or Jack Lew at Treasury, then let them talk through the weekend,” (Sen. Jeff) Merkley said. “If this former, conservative colleague is so outrageous … they can expend the energy and really filibuster him. Hopefully, then, we’d be able to at least have transparency.”

Keep stomping your feet and shouting your outrage with the our most sincere thanks for making the case to fix filibuster.

“Get out the old phone books,” as Chuck Todd suggests in the video below, if Sen. Jeff Merkley (D-OR) and Sen. Tom Udall (D-NM) are successful in bringing filibuster reform to the Senate. By using Senate rules, Majority Leader Harry Reid (D-NV) recessed the chamber at the end of Thursday’s proceedings to extend the legislative day until later this month. Debate will begin on January 22, two days after the inauguration.

“I think the conversation is going to continue between [Senate Minority Leader Mitch] McConnell [(R-Ky.)] and Harry Reid about this. I think they’re going to see if there’s a way to reach a bipartisan agreement, they’re still talking,” said Senate Democratic Whip Dick Durbin (Ill.).

“We’re going to preserve our rights, we’re going to stay in the first legislative day and deal with the rules when we get back after the inauguration,” said Sen. Tom Udall (D-N.M.), a leading proponent of reform.[..]

Liberals say the Levin-McCain proposal is inadequate because it would not implement their highest-priority reform, the so-called talking filibuster.

Udall and Jeff Merkley (D-Ore), the leading advocates for filibuster reform, say lawmakers who filibuster legislation should be required to actively hold the floor and debate. This would make it more arduous for senators who want to hold up business – they would have to organize teams to hold the floor for days or even weeks on end.

Udall said he would have to be convinced to support the Levin-McCain plan because it would not implement a talking filibuster rule, which he said is “the heart of the matter”

He said Reid may insist on it as part of any overhaul of Senate rules.

“The talking filibuster is still very much on the table,” Udall said.

Real Senate filibuster reform needed

By Frank Knapp, Jr., vice chairman, American Sustainable Business Council Action Fund

Dysfunctional!

Much of this problem lies with the voters rewarding extreme partisanship over cooperative problem solving and Congress making policy decisions that guarantee later stalemates.

However, there is one self-inflicted structural problem in the U.S. Senate that magnifies both these electorate and policy decisions – the filibuster.Except for rare occasions, the Senate is ruled by the minority. With 60 votes needed to end a filibuster that can essentially be “called-in” by the minority, the American public is being deprived both of a truly deliberative body and seeing the consequences of their voting behavior.

There is no transparency or accountability under today’s Senate filibuster rules. Consequently we have had an abusive and undemocratic use of filibusters in recent years at every step in the legislative process. The Senate has become frozen in its ability to address the nation’s problems, especially when it comes to promoting a healthy economy. That is why many business organizations like the American Sustainable Business Council, a national coalition of business organizations that together represent over 150,000 small and medium businesses, strongly supports filibuster reform.

Merkley, Udall Escalate Criticism Of Scaled-Back Filibuster Reform

by Sahil Kapur, TPMLiveWire

Sens. Jeff Merkley (D-OR) and Tom Udall (D-NM) held a briefing with reporters Thursday to make the case for adopting their “talking filibuster” proposal with 51 votes via the constitutional option. [..]

Udall said the Merkley-Udall plan has “good momentum” and said he believes it has the necessary 51 votes to pass under what Republicans call the “nuclear option.” Changing the rules ordinarily requires 67 votes.

On Filibuster Reform, Advocates Claim Momentum

by Ryan Grim and Sabrina Siddiqui, Huffington Post

The Senate postponed debate on reforming the filibuster Thursday, as advocates cited the support of 48 senators for eliminating the silent filibuster using the so-called constitutional option, a measure that requires 50 votes plus that of the vice president. [..]

The main component of the Merkley-Udall approach is the talking filibuster, which still enables the minority to filibuster legislation but would require them to do so by actually standing and speaking on the floor. Additionally, the proposal would also streamline conference committee assignments and nominations, and eliminate the motion to proceed — a motion typically offered by the majority leader to bring up a bill or other measure for consideration.

On this morning’s The Daily Rundown with Chuck Todd, Sen. Merkley appeared to discuss why what he and Sen Udall propose is better filibuster reform and where the negotiations stand.

History was made in the Senate when Senate Minority Leader Mitch McConnell (R-SC) filibustered his own bill and got PWD by Senate Majority Leader Harry Reid (D-NV). Really. Not kidding.

Senate Minority Leader Mitch McConnell (R-KY) wanted to prove on Thursday that Democrats don’t have the votes to weaken Congress’ authority on the debt limit. Instead they called his bluff, and he ended up filibustering his own bill.

The legislation, modeled on a proposal McConnell offered last year as a “last-choice option” to avert a U.S. debt default, would permit the president to unilaterally lift the debt ceiling unless Congress mustered a two-thirds majority to stop him.

McConnell brought up the legislation Thursday morning. Senate Majority Leader Harry Reid (D-NV) initially objected, seemingly proving the Republican leader’s point that it cannot pass the Senate. But then Reid ran it by his members and, in the afternoon, agreed to hold that same vote. This time it was McConnell who objected.

“The Republican leader objects to his own idea,” Reid declared on the floor. “So I guess we have a filibuster of his own bill.”

Here is Senate Majority Whip Dick Durbin (D-IL) full response along with Sen. Debbie Stabenow (D-MI) and Sen. Chuck Schumer (D-NY).

The signs of desperation are starting to show. Here’s hoping that the Democrats hold and strengthen their line on the fiscal bluff. Sen. Reid has my respect for that move.  

Ready or not, here it comes, filibuster reform. Or so says Senate Majority Leader Harry Reid:

WASHINGTON — Keeping with his post-election pledge to reform the filibuster, Senate Majority Leader Harry Reid (D-Nev.) on Tuesday proffered that changes to the rules of the upper chamber will be made, leaving it up to Republicans if they would like to participate. [..]

“There are discussions going on now [over filibuster reform], but I want to tell everybody here. I’m happy I’ve had a number of Republicans come to me, a few Democrats,” Reid told reporters Tuesday at his weekly press availability. “We’re going to change the rules. We cannot continue in this way. I hope we can get something that the Republicans will work with us on.”

“But it won’t be a handshake,” he added. “We tried that last time. It didn’t work.” [..]

Senate Minority Leader Mitch McConnell, who has repeatedly slammed Democratic efforts to reform the filibuster, was unmoved by Reid’s statement.

“Well, there is growing Democratic unease with breaking the rules to change the rules,” McConnell said later Tuesday at his weekly press conference. “I think it will be very difficult for that to come about. I think it will be bad for the Senate.”

McConnell added that in accordance with Senate rules, such an effort would require a 67-vote majority, and that Reid’s approach to make the changes with a simple 51-vote majority — a procedure that has been labeled a “nuclear option” by its opponents — would be “bad for the institution, bad for the country.”

It’s only breaking the rules if the other side does it. Otherwise it is perfectly within the rules on the first day of the new congress.

Sal Gentile, a staff member for MSNBC’s Up with Chris Hayes, writes:

If President Obama wants to get anything done in his second term, Democrats in the Senate will have to overcome one major obstacle: the filibuster.

In the last four years, Republicans have used the filibuster to prevent landmark pieces of legislation-such as the DREAM Act, the Paycheck Fairness Act and additional measures to stimulate the economy-from even reaching the floor for debate, let alone a vote. Republicans have shattered previous records for filibuster use, and the share of bills introduced in the Senate that have been passed has reached an all-time low. [..]

The filibuster has mutated over the years from a quirk of the Senate rules and an obscure procedural instrument-known mostly for so-called “lone wolf” filibusters like the one from the iconic film Mr. Smith Goes to Washington – to a routine impediment to legislative progress, a bludgeon used by the Republican minority to quash virtually any attempt by Democrats to govern. [..]

The proposed changes, which have the strong backing of Senate Majority Leader Harry Reid and nearly 51 Democratic senators, are also broadly endorsed by a wide range of Constitutional scholars and the public at large. A new Huffington Post/YouGov poll released Friday found that 65% of Americans favor tweaking the rules to require senators to debate a bill on the floor if they wish to block it from proceeding.

Even the man responsible for enforcing and administering the rules of the Senate endorsed some of the changes. In an interview on Up w/ Chris Hayes Saturday, Alan Frumin, who served as the parliamentarian of the Senate for nearly two decades until he retired last year, said he supported changes that would forbid senators from filibustering bills before they reach the floor for debate. Frumin also said he favored changes that would bar senators from blocking bills once those bills have passed the Senate and are ready to move to a conference committee with the House. [..]

The filibuster is nowhere mentioned in the Constitution, and many of the Founders argued forcefully against proposals that would have required more than 51 votes to pass legislation in the Senate. In 1788, for example, James Madison, known as the ‘Father of the Constitution,” wrote in Federalist No. 58 that requiring a supermajority in the Senate would “reverse” the “fundamental principle of free government.” Such a policy would empower special interests and make government “oligarchic,” Madison said.

“An interested minority might take advantage of it to screen themselves from equitable sacrifices,” Madison wrote, rather prophetically. “Or, in particular emergencies, to extort unreasonable indulgences.“

Sen. Jeff Merkley, D-Ore., a leading advocate of filibuster reform, joined Up host, Chris Hayes for a discussion on the prospects of filibuster reform in the Senate. Adding the views are panel guests Alan Frumin, former Senate Parliamentarian and author of  “Riddicks Senate Procedure;” Akhil Amar, Yale Law School professor and author of “America’s Unwritten Constitution: The Precedents and Principles We Live By;” Victoria DeFrancesco Soto, MSNBC contributor, senior analyst at Latino Decisions and fellow at the LBJ School of Public Affairs at the University of Texas-Austin; and Richard Arenberg, co-author of “Defending the Filibuster: The Soul of the Senate.”

Jon Walker at FDL Action was pretty miffed at this editorial in the Los Angeles Times regarding filibuster reform, especially this really stupid paragraph:

One response would be to eliminate the filibuster altogether. As a Senate rule, it can be changed by the majority party, and Democrats could eliminate it (though, of course, Republicans would almost certainly filibuster such a move). That, however, would also do away with the filibuster’s legitimate and historic place. Rather than eliminating the rule, the better approach would be to amend it in such a way as to preserve the ability for minorities to fight against one-party steamrolling while scaling back the filibuster’s capacity for obstructing everything.

Yikes! This is not only stupid, as Jon said, but it is wrong about how the Senate rules can be changed. Rules changes can’t be filibustered. While making such a rule change in the Senate would normally require a 67-vote majority, but when the Senate comes back into session in January, Democrats could use a set of procedural rules often called the “nuclear option” and pass the changes with a simple 51-vote majority. That scares the pants off the Republicans and had Senate Minority Leader Mitch McConnell blustering and making:

The Kentucky Republican said changing the filibuster – which was designed to protect the minority but has become a tool for constant gridlock in the modern Senate – would fundamentally alter how the Senate operates.

McConnell accused Democrats of trying to employ a “naked power grab.”

“In the name of efficiency, their plan is to use a heavy-handed tactic that would poison party relations even more,” McConnell said in a lengthy floor speech Monday. “In the name of efficiency, they would prevent the very possibility of compromise and threaten to make the disputes of the past few years look like mere pillow fights.”

Sen. McConnell was exaggerating since no one, not even Majority Leader Harry Reid, who said he “favors” filibuster, has suggested eliminating it entirely. But who would expect anything less than hyperbole from a man whose party has set a record for filibusters with over 360 since the Democrats came into the majority. But not to be outdone by their fearless leader other Republican senators voiced their objections in strongly worded terms:

Republicans are threatening even greater retaliation if Reid uses a move rarely used by Senate majorities: changing the chamber’s precedent by 51 votes, rather than the usual 67 votes it takes to overhaul the rules.

“I think the backlash will be severe,” Sen. Tom Coburn (R-Okla.), the conservative firebrand, said sternly. “If you take away minority rights, which is what you’re doing because you’re an ineffective leader, you’ll destroy the place. And if you destroy the place, we’ll do what we have to do to fight back.”

“It will shut down the Senate,” the incoming Senate GOP whip, Texas Sen. John Cornyn, told POLITICO. “It’s such an abuse of power.”

I’m not exactly sure how they would accomplish a “shut down” if the tool they’ve been using to shut down the senate is taken away from them or changed so that they can no longer obstruct the business that the majority was elected to do. After all for six years the Republicans, with Dick Cheney George W. Bush in the Oval Office, used the threat of the “nuclear option” to end any Democratic attempt at filibuster. Now the shoe is on the other foot and suddenly ending filibuster will destroy democracy.

We’ve been down this road before:

With the obstruction of a very united minority, there has been a great deal of debate about the filibuster and the reform of Senate Rule 22. In a New York Times op-ed, Former Vice President Walter F. Mondale, recalls how in 1975 when he was a Senator, the Senate voted to reduce the number of votes required to end filibuster from 67 votes, a super majority, to the current 60 votes. Clearly, he states this was not enough. Filibuster threats and cloture votes blocked legislation nearly 100 times in the 111th Congress.

Mr. Mondale argues that essentially, these rules abrogate the Constitution which only requires a 67 vote majority for the approval of treaties, “in all other instances it must be assumed that the Constitution requires only a majority vote”. In other words, many of the Senate rules are unconstitutional and could be done away with on a simple majority procedural vote under Parliamentary rules. That was the “[nuclear option ” that was used as a threat by the Republicans to force the Democrats to capitulate when they were in the minority.

One more time from me:

I have said this a number of times, the filibuster as it is currently being used to obstruct the Senate is unconstitutional. The Constitution is the supreme law of the land and cannot be abrogated by the Senate merely making a rule. The Vice President presides over the Senate and has a duty to make rulings on order and procedure when the Senate is in session. The Constitution provides for “one-person-one-vote” and “majority rules”, there is no mention of “filibuster”.

It is amazingly simple:

  1. During debate, a Republican Senator engages in a standard obstruction tactic, such as a hold, actual filibuster, or proposing numerous, non-germane Amendments.

  2. The Vice President, as Presiding Officer, rules that Senator’s hold, filibuster or spurious amendments out of order.

  3. The Senator who holds the floor, and had attempted the hold (filibuster, or amendments), could then appeal the decision of the Presiding Officer to the Senate as a whole.

  4. A simple majority (51) can then vote to uphold the ruling of the Presiding Officer that the hold (filibuster or amendments) were out of order.

 

This mechanism is not without precedent:

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.

And what Jon said:

There is no legitimate reason for allowing the minority, the party which lost the recent election, to have a veto in the Senate. The founders never intended a Senate minority to have such awesome power over basic legislation. The Constitutions clear stated the few  very important issues that should require a super majority in the chamber, everything else was intended to be a simple majority vote.

The idea that without a filibuster a majority in the Senate is going to steamroll are system is laughable. A senate majority is already checked and balanced by the House, the President and the judiciary. If a party does manage to dominates multiple elections allowing them to full control, they should be able to enact the agenda they run on. That is how democracy are suppose to work.

The US Senate has always been the slow deliberative body, it was not the intent of the Founders that it become bogged down to a halt by the minority misusing a rule that is probably not even constitutional in the first place. Sen. Reid was far too trusting of the duplicitous Republican leadership at the start of the 112th congress when he accepted their “gentlemen’s agreement”, shutting down the reform proposed by Sens. Tom Udall (D-NM) and Jeff Merkley (D-OR). The Republicans are not to be trusted.

I’m with Jon. It’s time the Senate ended the obstruction and put an end to Rule 22 altogether. Neither the Senate or the world will end and our elected officials will get back to governing.

It doesn’t look like the Senate Democrats have the courage to stand up the the very loud Republican minority and reform filibuster. As reported by Paul Kane in the Washington Post, the Senate has ground to a halt in order to continue to consider the rules changes that were suppose to have come to a vote on January 5th, the first day of the new congressional session.

Amid a long-running dispute over decades-old filibuster rules, Senate leaders have used a parliamentary trick to leave the chamber in a state of suspended animation – in reality adjourned since Jan. 5 but officially considered in a long recess that’s part of the same individual legislative day.

This nearly three-week break has taken place in large part so leadership could hold private negotiations to consider how to deal with a group of Democrats agitating to shake up the foundation of the world’s most deliberative body, right down to challenging the filibuster.

To the dismay of a younger crop of Democrats and some outside liberal activists, there is no chance that rules surrounding the filibuster will be challenged, senior aides on both sides of the aisle say, because party leaders want to protect the right of the Senate’s minority party to sometimes force a supermajority of 60 votes to approve legislation.

However, the rules changes proposed by Sens. Tom Udall (D-N.M.) and Jeff Merkley (D-Ore.) don’t propose the end of the need for a 60 vote majority that has permitted the Republican minority to halt nearly all Senate business for the last two years. David Dayen explained what they offered as a compromise to the current situation of announced filibuster by one Senator then wait out the 30 hours and try again:

After 41 Senators or more successfully maintain a filibuster by voting against cloture, they would have to hold the floor and go into a period of extended debate. Without someone filibustering holding the floor, cloture is automatically invoked, and the legislation moves to an eventual up-or-down vote, under this rule change.

This would institute the actual filibuster. The Majority Leader would have the capacity, which Harry Reid says he doesn’t have now, to force the minority to keep talking to block legislation. It becomes a test of wills at this point – whether the minority wants to hold out for days, or whether the majority wants to move to other legislation.

Kane’s article, while otherwise correct, muddles the debate on the rules, which is nothing new for the corporate controlled mainstream media.

With the obstruction of a very united minority, there has been a great deal of debate about the filibuster and the reform of Senate Rule 22. In a New York Times op-ed, Former Vice President Walter F. Mondale, recalls how in 1975 when he was a Senator, the Senate voted to reduce the number of votes required to end filibuster from 67 votes, a super majority, to the current 60 votes. Clearly, he states this was not enough. Filibuster threats and cloture votes blocked legislation nearly 100 times in the 111th Congress.

Mr. Mondale argues that essentially, these rules abrogate the Constitution which only requires a 67 vote majority for the approval of treaties, “in all other instances it must be assumed that the Constitution requires only a majority vote”. In other words, many of the Senate rules are unconstitutional and could be done away with on a simple majority procedural vote under Parliamentary rules. That was the “nuclear option” that was used as a threat by the Republicans to force the Democrats to capitulate when they were n the minority.

The Constitution is clear that under Article I, Section 5 of the Constitution: “Each House may determine the rules of its proceedings.” However, it is very explicit about the few instances where a super majority vote is needed, it must be assumed that the Constitution requires only a majority vote in all other cases.

Congressional expert and Washington University in St. Louis political science professor Steven S. Smith, has testified before U.S. Senate Committee on Rules and Administration that there is an unhealthy exploiting of the Senate rules to block important legislation and limit debate. Prof. Smith also stated that

“wishing for better behavior” on the part of senators and their leaders won’t reverse the consequences of “two decades of intensifying parliamentary warfare” that has contributed to the demise of the appropriations process, more packaging in omnibus bills, and a shift of policy decision-making from committees to party leadership offices, among other changes

He proposed that these changes be made:

   (M)ore clearly protect each senator’s opportunity to debate and offer amendments;

   (L)imit debate on motions to proceed and combine and limit debate on the three motions to go to conference;

   (L)imit debate on appropriations bills and executive calendar business; and

   (W)here debate is not otherwise limited, allow a simple majority to eventually close debate.

On of the rules being considered is forcing the filibustering Senator to actually stay on the floor speaking for the duration of the filibuster, a la, Sen. Bernie Sanders’ recent 8 and a half hour tour de force on the Senate floor. There is also a need to end the policy of “secret holds” which prevents a bill or nomination from being considered even though it has cleared committee. The Democrats need to stand firm on rules reform, otherwise, we are in for an even more obstructive Senate in the 112th Congress.

I have said this a number of times, the filibuster as it is currently being used to obstruct the Senate is unconstitutional. The Constitution is the supreme law of the land and cannot be abrogated by the Senate merely making a rule. The Vice President presides over the Senate and has a duty to make rulings on order and procedure when the Senate is in session. The Constitution provides for “one-person-one-vote” and “majority rules”, there is no mention of “filibuster”.

It is amazingly simple:

  1. During debate, a Republican Senator engages in a standard obstruction tactic, such as a hold, actual filibuster, or proposing numerous, non-germane Amendments.

  2. The Vice President, as Presiding Officer, rules that Senator’s hold, filibuster or spuriousamendments out of order.

  3. The Senator who holds the floor, and had attempted the hold (filibuster, or amendments), could then appeal the decision of the Presiding Officer to the Senate as a whole.

  4. A simple majority (51) can then vote to uphold the ruling of the Presiding Officer that the hold (filibuster or amendments) were out of order.

This mechanism is not without precedent:

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.

When the Republicans held the Senate majority during the previous administration, then Vice President Dick Cheney threatened to invoke the “nuclear option” ending filibuster if the Democrats continued to filibuster President Bush’s nominees. The Democrats backed off. So why hasn’t President Obama done just that? This is just another game of ‘Constitutional chicken” to excuse the President’s failure to get a liberal/progressive agenda passed.

It is high time the Vice President Biden took his seat and gaveled filibuster out of order.