Yo Ho Yo Ho A Filibustero Life For Me

In response to my “Fortune Cookie” blog, Loyal Reader Larry asks the following series of very good questions:

Mr. Luna- I have some questions for you that I really don’t understand. I was a Political Science Major, but that was a long, long time ago. I’d like to understand why this 60 seat thing is so crucial, yet the Republicans never had this 60 seat thing for their 6 years, and yet they were able to pass and enact bill after Bill, and there was nothing the Democrats could do about it for 6 years, and no compromises were necessary. What am I not getting here? How come with more than 41 Senators, The Democrats were not able to prevent the Republican/Bush agenda.
Did I also dream that when Republicans were in the Majority(recently) they threatened to abolish the Filibuster and now the Democrats are afraid of this group of 41, but were the Republicans ever afraid of the Democrats 40+ Senators.
I continue to be baffled and bewildered. Are there 2 sets of rules? I don’t get it. Thanks

The simple, knee-jerk and emotionally-satisfying answer to all of your questions is: The Democrats are a bunch of Woosies!  (NOT my first chose of epitaph but decorum dictates restraint.)   The Democrats have not been able to advance a meaningful, game-altering agenda ever since LBJ lost the hearts and minds of the American people over Vietnam.  If the Democrats jumped off the Empire State Building (legislatively speaking) they’d miss the ground.  If the Democrats tried to take candy from a baby, the baby’d beat them up.  If the Democrats fell into an empty swimming pool they’d drown. 

That being said, as in all things (except, perhaps, responding to the presence of a very large and very hungry carnivore by screaming like a little girl and running like hell)  the situation is more complicated than a simple, knee-jerk and emotionally driven response.

The United States Senate was, by design, created  to be a collegial institution.  The principle of majority rules never has applied to this august body. Senatorial rules of debate and procedure adopted since the dawn of the Republic allow for a minority—even of one—to slow down or even block action.   To get anything done on anything controversial a supermajority is historically called for.   The Senate was designed this way to prevent a majority of the states from simply forcing their will on a minority of states.  The House is all about majority rules.  The Senate is all about consensus.  The filibuster—the ability of a minority of senators to take the Senate floor and essentially hold it hostage until some matter they object to is removed from consideration—is one of those devices.

Now, today’s filibuster is not your daddy’s filibuster. Once upon a time, for a filibuster to work, a senator or group of senators had to physically stand in the hall of the Senate, on their feet, talking without stop.  As long as they held the floor no other senator could speak or make a motion to move a bill forward: there could be no vote.  The filibuster senator(s) would demand that a quorum of senators (fifty percent) be present to witness their endeavor, guaranteeing that, as long as they held the floor, no-one could get pretty much anything done in the Senate. These are the filibusters of  the days of Mister Smith Goes To Washington.  As we’ll see below, those simple days are long gone.

Now there are physical limits to how long one senator can stand up and talk.  The record for a filibuster belongs to Strom  “Don’t Want to Give Equal Rights to Blacks But Don’t Mind Fathering a Child With One Out Of Wedlock” Thurmond, who ran on for over twenty-four hours to block the Voting Rights Act.  But you get two or more senators going at it in a tag team and a filibuster can last for ever.  To keep the Senate  from being forever hijacked  (the term filibuster comes from an amalgamated Franco-Dutch-Spanish phrase that, essentially, means “pirate”—filibustering is, therefore, in a sense, an act of legislative terrorism) by a handful of malcontents, the body adopted the rule of “Cloture.”  Cloture is a vote of senators to end debate—and therefore a filibuster—by invoking the Thirty Hour Rule. If passed, a move for Cloture means that, after just an additional THIRTY HOURS of debate, the matter on the floor must be brought to a vote.  The number of senators required to pass cloture originally was two-thirds; that threshold was dropped to sixty percent (sixty votes) in the 1970s, and remains so today.

The number of filibusters in the Senate have sky-rocketed since the early 1990s.  You can thank Bob “Easy, Boy” Dole for that one.  Back in 1993 the Democrats were giddy with power, controlling majorities in both the House and Senate and with their man Bill in the White House.  Having been elected to deal with the 1991-1992 recession on the mantra “It’s The Economy, Stupid”, Clinton sent a stimulus bill to Congress in early 1993.  Republicans in the House condemned it as more Democratic tax and spend politics.  With a large majority in the House, however, the Democrats were able to ride roughshod over the GOP,  passing the bill without allowing the Republicans much in the way of debate or amendment.  Dole, the Republican Senate minority leader, decided to teach the Democrats a lesson in congeniality. Dole dug  out a Senate Rule that hadn’t seen the light of day since the 19^th  century. (Say what you will about Dole the Presidential Candidate—he was a Whiz bang Senatorially leader, the likes of which neither party has seen since he left his real home for the Quixotic ’96 campaign.)  The rule essentially allows you to “phone-in” a filibuster.  If your side in the Senate has a secure 41 votes to block a motion of cloture, your side can simply announce it will filibuster a bill if it is brought to the floor.  The other side, knowing they cannot bring the bill to a vote and facing the possibility of a real, stay up all night in the Senate filibuster, is now helpless. The bill dies without sixty votes.

When Dole did this to the Democrats they responded with anger, frothing at the mouth and sputtering before the press about how undemocratic and unfair it was.  (Clinton’s stimulus plan died.)   Bob Dole responded by blowing them a raspberry.  Then Republicans took over the Senate in 1994 and, for the next six years, Democrats started to use Dr. Dole’s Pain Free Magic Filibuster Elixir, guaranteed to kill bills before they kill you.  Republicans responded with anger, frothing at the mouth and sputtering before the press about how undemocratic and unfair it was.  Democrats responded by blowing them a raspberry. Then Democrats took control of the Senate in 2001 and Republicans Doled them with filibusters.  Democrats sputtered, Republicans raspberried.  When Republicans took back the Senate in 2002, though, things turned even uglier.  Democrats began using the Dole filibuster to block several of George W. Bush’s more controversial (at least in their minds) appellate court nominations.  Republicans sputtered and frothed—and threatened to change the rules on judicial nominations to take a vote of cloture down to a simple majority, effectively killing the use of the filibuster.  Republican leaders at first called this the “nuclear option” as in going to total war with the Democrats, changing the incendiary phrase to the “Constitutional Option” (which, like many GOP handles, was both misleading and false: there is nothing in the Constitution that precludes the use of the filibuster in the Senate.)  Then John McCain stepped into the breach (that was back in the pre-2008 days when McCain was still a moderate maverick and not the cranky old reactionary conservative he morphed into).  McCain reminded his fellow party members that, while they were currently in the majority one day they might not be so lucky and, when that day came, they might really like to be able to use a filibuster or seventy-three to block the judicial nominations—and other actions—of some future liberal Democratic President.  Say, a charismatic black politicians from, or, I dunno, Chicago?   McCain led the Group of 14 senators who pushed through a compromise:  the Democrats would practice more restraint in blocking Bush judicial nominations, the filibuster would remain untouched. Reactionary-right Republicans continue to this day to condemn  cranky conservative McCain for being a mooshy RINO for betraying his party with his Gang of 14, even though that is the reason why, five years later, a minority of forty-one Republicans in the Senate can now derail healthcare—and the rest of the Obama agenda.

Of course, that is also not the whole story, either.

For a party to successfully use the Dole filibuster the party must have a firm, dependable forty-one votes.  That means, if the party is in the Senate minority, pretty much every member has to vote in lock-step.  For the Republicans that means ALL forty-one senators have to toe the party line to avoid cloture—which they DO!  The Republican party of today is also not your daddy’s party.  The Grand Old Party has become the Old Southern Party consisting lots of politicians who, in years past, would have been Democrats simply because they would never have belonged to the party of Lincoln.  But the GOP is no longer the party of Lincoln—it is the party of Reagan with all the anti-liberal, anti-Washington rhetoric, which are code words for all  anti-civil rights movement and anti affirmative action rhetoric–that implies.  Over the last twenty years the Republican Party has systematically purged moderate and liberal Republicans from their Congressional ranks such that, today, Lindsay Graham of South Carolina is being called too liberal.   The only remain Republican senatorial moderates—read Olympia Snow and  Susan Collins—understand that, unless they break to the right they’ll be busted out of politics altogether by conservative primary challengers.  So the Republican party has become one conservative beast with many mouths and limbs, moving in ideological lockstep.

Bully for them.

The Democrats, however, continue to live up to Will Rogers’ famous line, “I’m not a member of an organized political party. I’m a Democrat.”  The reality is, while the Democrats, by title, controlled sixty votes in the Senate until this Tuesday, the Democratic senators are ideologically divided between traditional liberals like California’s Feinstein and Boxer, Blue Dog  “moderates” (read fiscal and, mostly, social conservatives) like Evan Bayh (D-Ind.), Tom Carper (D-Del.) and Blanche Lincoln (D-Ark.) and DINOs like former Democrat Joe “Teach You All For Giving Me the VEEP Slot On A Losing Ticket” Lieberman.  This motley crew couldn’t find common ground on what condiments to put on a hotdog, let alone keep enough party discipline to deliver an assured sixty votes.  That’s why, even though Democrats had more than forty votes in the Senate throughout the Bush years, they couldn’t block much beyond the most controversial Bush judicial appointments and the Republicans could get much of their domestic—and almost all of their foreign policy—agendas adopted.

The real danger to the Republic, however, is not the filibuster or even the failure of healthcare reform.  The real danger is that, over the next several election cycles, Democrats follow in the footsteps of their Republican Brethren and begin to really work at ideologically purifying their ranks.   A number of the more conservative Democrats in purple states  may start to think about doing a full Lieberman (which Lieberman, with his trademark  jello-like resolve, hasn’t mustered the courage to finally do, yet) and bolt to the GOP.  Other moderate-conservatives might find themselves targeted by increasingly liberal opponents in their primaries.  The result: a US Senate divided between two completely antagonistic ideological blocks which tolerate no compromise and forge no consensus.  Under these circumstances the Senate simply cannot function: nothing can get done.  Which ever party is in the minority, enjoying more than forty votes, will simply obstruct the other party until they get propelled into the majority by an angry public—only to not get anything done when the minority blocks them.

The United States may well be heading into its Fourth Republic Phase.  Back in the 1950s the French government (the Fourth Republic) foundered when partisan division rendered the parliament impotent to deal with major problems like the Algerian problem.  The political paralysis and rising social crisis almost resulted in a military coup, averted only by the extra-constitutional creation of a new Fifth Republic by the godlike Charles de Gaulle.  The French had to completely redesign their government (producing the “French” or “Mixed” model, in which the people elect both a President who appoints a Prime Minister to run the government, and a Parliament which approves or fires the Prime Minister and passes laws).

I don’t see Americans, with their almost Japanese reverence of their political ancestors, willing to consider a major revamp of our system of government to deal with such paralysis any time soon.  And I sure as heck don’t see a de Gaulle out there anywhere on the political landscape.  (Colin Powell might have had a chance at the role if he hadn’t squandered his credibility defending nonexistent WMDs for a President who rewarded him by letting his administration rivals stab him in the back and heave his political corpse off the second term truck.)

So that, dear Larry, is why the Democrats couldn’t stop the Republicans, why the Republicans can stop the Democrats and why both parties are poised to stop the political heart of the American Republic.