Didn’t the filibuster save ACA (aka Obamacare)? There’s been an argument for the speaking filibuster. What if we strengthened that rule to require the speaking must be on topic, non-repetitive and continuous.
By avoiding another rendition of Green Eggs and Ham, keep Senators on the legislative topic. If there’s opposition, require them to speak in opposition. Better yet, require actual debate. If anyone breaks the rules, fine the hell out of them.
If you keep Senators on the floor and eliminate their nights and weekends, we just may get substantive or reasonably negotiated legislation passed.
I agree we need to get past the petty bomb we have in the filibuster today. Nothing says we can’t agree to preservation and then pass a rule with strict guidelines (on a party line) on the use of that privilege.
"Additionally, the poll found that support for filibuster elimination went up when it was explained that it made policies more likely to pass." Framing, framing, framing. I think Americans are much more easily persuaded when you say 'do you want a simple up or down vote on bill?
The way to get Manchin is to try to divide up the filibuster into different elements. Reconciliation is a simple majority matter - so is not the first step an attempt to significantly extend the matters subject to this approach? It allows him and others to attach themselves to specific ideas such as "if it only takes 50 to give a billionaire massive benefits then it should only tax 50 to raise the minimum wage, protect worker safety, etc".
The second, and more important point in terms of the big picture is to start defining the GOP as the party of minority rule. They do not want checks and balances which protect against abuses by the majority, they want the right to govern even when they are the minority:
-working to prevent people from being able to vote
-gerrymandering, to give them majorities even when receiving minority support
-stripping power away from incoming-Democrats after the people have elected them
-Forcing through GOP policies and judges against all previous norms when they control chambers, but demanding that Democrats actually strengthen those norms
This minority rule philosophy, where some people are created more equal than others, is very reminiscent of how the slave states and subsequently former slave states, gained power.
Two questions: 1. Can we rebrand it “close the filibuster loophole” to more closely connect the term filibuster (which plenty of people use and still will use) with the loophole idea? 2. Once upon a time, senators actually had to speak, not just threaten. Is it possible to at least reinstate that requirement? That might prevent senators from threatening to use it so freely, and also have the effect of drawing public attention to the issue at hand and to the filibuster loophole more generally.
I like this. But if filibuster is not well understood by enough people, you could just say "close the minority obstruction loophole." Or something along those lines.
Could we hobble it by having it be speaking filibuster rather than just a procedural one? That way each time the GOP wanted to filibuster a bill they'd be forced to stand there and back their opposition to the bill on the Senate floor. Or worse get another rendition of "Green Eggs and Ham."
Al Franken suggested flipping the burden of action to the minority. So rather than require majority to produce 60 votes, require minority to produce 40 votes. I think I follow- not sure how much it would help?
How about renaming the filibuster "SMOG" - Senate Minority Obstruction Gambit (or Game) - or just call it the minority obstruction maneuver (no acronym cause that's MOM and wouldn't want to insult moms)
Basic(esq) question: in this article Dan says , "Unlike much of Biden’s COVID relief plan, almost none of the democracy bill will be eligible for the 50-vote budget reconciliation process."
What makes it not eligible ?
Also, "the legislative loophole that requires 60 votes to pass nearly every piece of legislation." -- thanks for this clear definition but I'm still confused as to the how.
Like is there something in how the bills are written or proposed that allows for the determination of how many votes it needs to pass?
Budget reconciliation is an exception to the 60-vote requirement because Congress (by statute in the 1970s) enacted a special set of rules for fast-track treatment of annual bills to "reconcile" the tax and spending legislation to achieve budget goals. The Senate then engrafted another rule (known as the "Byrd Rule" on top of that) that prohibits extraneous/non-germane provisions in bills considered under that procedure.
But to me that highlights two points about how the fillibuster isn't *necessarily* an all-or-nothing proposition. Rather, Congress (or the Senate) can craft limited purpose exceptions when there's the will (just as they have done for nominations). So while I think we should push for complete elimination ("Make majority rule the rule in the Senate!"), I'd be happy for Democrats to consider other alternatives as well. For example, they could loosen the Byrd Rule to permit more types of legislation to pass through existing reconciliaton rules. Or perhaps just consider an express limited use exception, e.g. "The Majority Leader may, no more than X times per Session of Congress, designate a bill as being a Matter of National Importance that will be granted an up-or-down vote under a 50-vote threshold (along with amendments to that bill, associated conference reports, etc." Set X to a number palatable to both sides of the Caucus, so that it could be used for a party's key priorities, but not necessarily everything. Over time, X would probably creep up, but so be it.
(Frankly, I wouldn't mind offering the Minority Leader the same privilege if it were the cost of doing a deal. Yes, it would increase the chance that Republicans could force votes on their preferred issues and create awkward votes, but it would still allow the majority to rule, including voting down their proposals if they didn't like it. Majority rule for me, majority rule for thee.)
But more importantly, I think we should be pushing Democrats to consider *all* of their constitutional options to move legislation in this limited window of trifecta control. These are only examples, and I'm sure there are good arguments against each. But if we don't, the Republicans will do it the next time they have trifecta control, so we need to do what we can now to protect our ability to have fair elections for the Presidency and House to counteract the geographic/demographic bias of the Senate.
Yes, the Covid plan is fiscal. It may be prudent to allow bipartisan negotiation so long as the bill doesn’t stray too far from the proposal. I’d prefer this to see if we can get our government working for the people again instead of re-election.
However, the Democracy bill (See HB1) would not have a fiscal tie.
I've heard it being suggested that putting out "modified" changes to filibuster rules might work. For instance instead of letting just one member block everything, change the rules to require a large majority of the minority party to vote to block a bill. That at least would put more of the blame on the party for blocking everything than just one nut job or two. (and you may notice the current nut jobs always comes from very protected safe seats). Also it would offer a limited protection for minority parties in the future. It seems it might be easier to pass. What are your thoughts on modification of filibuster?
I’d love the requirement that at least half of the opposition must be present in the chambers during any filibuster. This could alleviate rogue use of the procedure. The reverse Hastert rule, if you will.
Thanks for breaking this down, Dan. I really don't understand Joe Manchin's firm commitment to the loophole that allows a small minority of U.S. senators to block legislation. His stubbornness is frustrating and his comments to the Post’s Greg Sargent yesterday were so tone-deaf.
Manchin, a guy who has served in the senate with Mitch McConnell for 10 years, actually defended his position with the words “If you can’t sit down and work with your colleagues on the other side and find a pathway forward, then you shouldn’t be in the Senate.” Wow, what an insulting sentence.
What makes his stance even weirder is the fact he’s FORFEITING his own leverage. He’d be the most powerful senator without that dumb and abused loophole. Instead of McConnell, every bill would go through Manchin. I’ve never seen anyone act so cynically in an effort to SURRENDER their power! And to your point, unlike Feinstein and Simena – who are both getting to be very annoying – Manchin is immune to a primary challenge in deep red WV.
Why wouldn’t he just force Schumer to play ball with HIM, rather than McConnell? Is he so blinded by a desire to get re-elected in 2024, and afraid of right-wing talking points, that he’d let democracy wither to keep his senate seat? That’s what it seems like anyway. And of course the irony is that he’ll be blamed with every other Democrat when McConnell ensures that government doesn't work.
I agree that we must always place the onus on McConnell, the true villain. I hate how the media has internalized McConnell's blatant cynicism and glorifies his every move, but the reality is that they do. And he and Republicans will reap the rewards of obstruction. So we must pressure these three Democrats to quit falling for bad-faith Republican nonsense, to stop caring more about their re-election than achieving good change while in office.
I am old enough to remember the civil rights campaigns to reduce the number of votes required for cloture to the present 60 (if you think explaining "filibuster" is tough, try "cloture".) At the core of that was portraying the opponents of majority rule as racist, rural, old hicks. Yes, they still are, though some are just young Nazi opportunists. These are people whose political behavior is despicable -- and is hostile to the majority of the country. I don't know how you finesse that -- because, of course, that is not how most of their constituents see them. You chip away.
From what Dan wrote, I'm seeing that the primary challenge we have is rallying all of our senators to change the senate rules, right? So, many are focused on Manchin, but the reality is that there are several more that are hesitant or even opposed to actually changing these rules. The hope is to get enough to voice their favor for abolishing the filibuster to get a bandwagon effect going.
What frustrates me, is that the Republican party seems more flexible in 'unifying' to alter rules in their favor. Don't get me wrong, they disgust me as they are the party of anti-democracy, but I wish Democrats would more quickly unify to undo the filibuster and pass legislation that protects our democracy, upends voter suppression laws, and makes minority party rule a thing of the past.
I'm curious to learn more about how the filibuster as a remnant of Jim Crow.
Dan, can you speculate what the Trump presidency and legislative agenda would have looked like, if there was no filibuster? The voter ID / disenfranchisement / anti-abortion legislation? You and jonfavs have often said you'd like to have meaningful debates within the democratic party @ Crooked media, once Trump is out. However, on this important matter, you are mostly prescribing the solution, without considering arguments against getting rid of the filibuster.
Manchin...my fantasy...after a week or ten days of the McConnell b.s. (Schumer STICK TO YOUR GUNS), Joe calls Manchin and says "You know I am a patient man, but I'm out of patience and people in WVA need what is in this bill...you with me?" Oh, I can sure hear in my head an imagined conversation between LBJ and Manchin...
Didn’t the filibuster save ACA (aka Obamacare)? There’s been an argument for the speaking filibuster. What if we strengthened that rule to require the speaking must be on topic, non-repetitive and continuous.
By avoiding another rendition of Green Eggs and Ham, keep Senators on the legislative topic. If there’s opposition, require them to speak in opposition. Better yet, require actual debate. If anyone breaks the rules, fine the hell out of them.
If you keep Senators on the floor and eliminate their nights and weekends, we just may get substantive or reasonably negotiated legislation passed.
I agree we need to get past the petty bomb we have in the filibuster today. Nothing says we can’t agree to preservation and then pass a rule with strict guidelines (on a party line) on the use of that privilege.
Interesting idea.
"Additionally, the poll found that support for filibuster elimination went up when it was explained that it made policies more likely to pass." Framing, framing, framing. I think Americans are much more easily persuaded when you say 'do you want a simple up or down vote on bill?
The way to get Manchin is to try to divide up the filibuster into different elements. Reconciliation is a simple majority matter - so is not the first step an attempt to significantly extend the matters subject to this approach? It allows him and others to attach themselves to specific ideas such as "if it only takes 50 to give a billionaire massive benefits then it should only tax 50 to raise the minimum wage, protect worker safety, etc".
The second, and more important point in terms of the big picture is to start defining the GOP as the party of minority rule. They do not want checks and balances which protect against abuses by the majority, they want the right to govern even when they are the minority:
-working to prevent people from being able to vote
-gerrymandering, to give them majorities even when receiving minority support
-stripping power away from incoming-Democrats after the people have elected them
-Forcing through GOP policies and judges against all previous norms when they control chambers, but demanding that Democrats actually strengthen those norms
This minority rule philosophy, where some people are created more equal than others, is very reminiscent of how the slave states and subsequently former slave states, gained power.
Two questions: 1. Can we rebrand it “close the filibuster loophole” to more closely connect the term filibuster (which plenty of people use and still will use) with the loophole idea? 2. Once upon a time, senators actually had to speak, not just threaten. Is it possible to at least reinstate that requirement? That might prevent senators from threatening to use it so freely, and also have the effect of drawing public attention to the issue at hand and to the filibuster loophole more generally.
I like this. But if filibuster is not well understood by enough people, you could just say "close the minority obstruction loophole." Or something along those lines.
Could we hobble it by having it be speaking filibuster rather than just a procedural one? That way each time the GOP wanted to filibuster a bill they'd be forced to stand there and back their opposition to the bill on the Senate floor. Or worse get another rendition of "Green Eggs and Ham."
Al Franken suggested flipping the burden of action to the minority. So rather than require majority to produce 60 votes, require minority to produce 40 votes. I think I follow- not sure how much it would help?
How about renaming the filibuster "SMOG" - Senate Minority Obstruction Gambit (or Game) - or just call it the minority obstruction maneuver (no acronym cause that's MOM and wouldn't want to insult moms)
Basic(esq) question: in this article Dan says , "Unlike much of Biden’s COVID relief plan, almost none of the democracy bill will be eligible for the 50-vote budget reconciliation process."
What makes it not eligible ?
Also, "the legislative loophole that requires 60 votes to pass nearly every piece of legislation." -- thanks for this clear definition but I'm still confused as to the how.
Like is there something in how the bills are written or proposed that allows for the determination of how many votes it needs to pass?
Any insights would be so helpful! Thanks'
Budget reconciliation is an exception to the 60-vote requirement because Congress (by statute in the 1970s) enacted a special set of rules for fast-track treatment of annual bills to "reconcile" the tax and spending legislation to achieve budget goals. The Senate then engrafted another rule (known as the "Byrd Rule" on top of that) that prohibits extraneous/non-germane provisions in bills considered under that procedure.
But to me that highlights two points about how the fillibuster isn't *necessarily* an all-or-nothing proposition. Rather, Congress (or the Senate) can craft limited purpose exceptions when there's the will (just as they have done for nominations). So while I think we should push for complete elimination ("Make majority rule the rule in the Senate!"), I'd be happy for Democrats to consider other alternatives as well. For example, they could loosen the Byrd Rule to permit more types of legislation to pass through existing reconciliaton rules. Or perhaps just consider an express limited use exception, e.g. "The Majority Leader may, no more than X times per Session of Congress, designate a bill as being a Matter of National Importance that will be granted an up-or-down vote under a 50-vote threshold (along with amendments to that bill, associated conference reports, etc." Set X to a number palatable to both sides of the Caucus, so that it could be used for a party's key priorities, but not necessarily everything. Over time, X would probably creep up, but so be it.
(Frankly, I wouldn't mind offering the Minority Leader the same privilege if it were the cost of doing a deal. Yes, it would increase the chance that Republicans could force votes on their preferred issues and create awkward votes, but it would still allow the majority to rule, including voting down their proposals if they didn't like it. Majority rule for me, majority rule for thee.)
But more importantly, I think we should be pushing Democrats to consider *all* of their constitutional options to move legislation in this limited window of trifecta control. These are only examples, and I'm sure there are good arguments against each. But if we don't, the Republicans will do it the next time they have trifecta control, so we need to do what we can now to protect our ability to have fair elections for the Presidency and House to counteract the geographic/demographic bias of the Senate.
For Reconciliation, legislation must be tied to fiscal/budgetary matters.
But isn't the Biden Covid bill all about fiscal matters -- getting people back to work, etc.
Yes, the Covid plan is fiscal. It may be prudent to allow bipartisan negotiation so long as the bill doesn’t stray too far from the proposal. I’d prefer this to see if we can get our government working for the people again instead of re-election.
However, the Democracy bill (See HB1) would not have a fiscal tie.
I've heard it being suggested that putting out "modified" changes to filibuster rules might work. For instance instead of letting just one member block everything, change the rules to require a large majority of the minority party to vote to block a bill. That at least would put more of the blame on the party for blocking everything than just one nut job or two. (and you may notice the current nut jobs always comes from very protected safe seats). Also it would offer a limited protection for minority parties in the future. It seems it might be easier to pass. What are your thoughts on modification of filibuster?
I’d love the requirement that at least half of the opposition must be present in the chambers during any filibuster. This could alleviate rogue use of the procedure. The reverse Hastert rule, if you will.
Thanks for breaking this down, Dan. I really don't understand Joe Manchin's firm commitment to the loophole that allows a small minority of U.S. senators to block legislation. His stubbornness is frustrating and his comments to the Post’s Greg Sargent yesterday were so tone-deaf.
Manchin, a guy who has served in the senate with Mitch McConnell for 10 years, actually defended his position with the words “If you can’t sit down and work with your colleagues on the other side and find a pathway forward, then you shouldn’t be in the Senate.” Wow, what an insulting sentence.
What makes his stance even weirder is the fact he’s FORFEITING his own leverage. He’d be the most powerful senator without that dumb and abused loophole. Instead of McConnell, every bill would go through Manchin. I’ve never seen anyone act so cynically in an effort to SURRENDER their power! And to your point, unlike Feinstein and Simena – who are both getting to be very annoying – Manchin is immune to a primary challenge in deep red WV.
Why wouldn’t he just force Schumer to play ball with HIM, rather than McConnell? Is he so blinded by a desire to get re-elected in 2024, and afraid of right-wing talking points, that he’d let democracy wither to keep his senate seat? That’s what it seems like anyway. And of course the irony is that he’ll be blamed with every other Democrat when McConnell ensures that government doesn't work.
I agree that we must always place the onus on McConnell, the true villain. I hate how the media has internalized McConnell's blatant cynicism and glorifies his every move, but the reality is that they do. And he and Republicans will reap the rewards of obstruction. So we must pressure these three Democrats to quit falling for bad-faith Republican nonsense, to stop caring more about their re-election than achieving good change while in office.
Does anyone have some language to slap into an email to Senator Feinstein? thanks!
I am old enough to remember the civil rights campaigns to reduce the number of votes required for cloture to the present 60 (if you think explaining "filibuster" is tough, try "cloture".) At the core of that was portraying the opponents of majority rule as racist, rural, old hicks. Yes, they still are, though some are just young Nazi opportunists. These are people whose political behavior is despicable -- and is hostile to the majority of the country. I don't know how you finesse that -- because, of course, that is not how most of their constituents see them. You chip away.
From what Dan wrote, I'm seeing that the primary challenge we have is rallying all of our senators to change the senate rules, right? So, many are focused on Manchin, but the reality is that there are several more that are hesitant or even opposed to actually changing these rules. The hope is to get enough to voice their favor for abolishing the filibuster to get a bandwagon effect going.
What frustrates me, is that the Republican party seems more flexible in 'unifying' to alter rules in their favor. Don't get me wrong, they disgust me as they are the party of anti-democracy, but I wish Democrats would more quickly unify to undo the filibuster and pass legislation that protects our democracy, upends voter suppression laws, and makes minority party rule a thing of the past.
I'm curious to learn more about how the filibuster as a remnant of Jim Crow.
Thanks for the practical suggestions to help with this.
Dan, can you speculate what the Trump presidency and legislative agenda would have looked like, if there was no filibuster? The voter ID / disenfranchisement / anti-abortion legislation? You and jonfavs have often said you'd like to have meaningful debates within the democratic party @ Crooked media, once Trump is out. However, on this important matter, you are mostly prescribing the solution, without considering arguments against getting rid of the filibuster.
Manchin...my fantasy...after a week or ten days of the McConnell b.s. (Schumer STICK TO YOUR GUNS), Joe calls Manchin and says "You know I am a patient man, but I'm out of patience and people in WVA need what is in this bill...you with me?" Oh, I can sure hear in my head an imagined conversation between LBJ and Manchin...