Monday, December 21, 2009

The Filibuster

Real Health Care Reform isn't going to pass because it was hijacked by Joe Lieberman and Ben Nelson? Joe Lieberman isn't the problem. Neither is Ben Nelson.

The real problem is the filibuster.

Here's a bit of light reading: See More... See More

If Harry Reid takes away Joe's hammer the Democrats can get a lot of real work done up until 2010. Maybe enough to make a difference.

Senator Tom Harkin (D - IA) tried to change the filibuster procedure in 1995. His co-sponsor? Naturally. Joe Lieberman (I -CT). Senator Harkin is considering making another attempt.

"I think, if anything, this health care debate is showing the dangers of unlimited filibuster," Harkin said Thursday during a conference call with reporters. "I think there's a reason for slowing things down ... and getting the public aware of what's happening and maybe even to change public sentiment, but not to just absolutely stop something."

"Today, in the age of instant news and Internet and rapid travel -- you can get from anywhere to here within a day or a few hours -- the initial reasons for the filibuster kind of fall by the wayside, and now it's got into an abusive situation," Harkin said.

He and the constitutional scholars agree that the intention was never to hold up legislation entirely. To keep the spirit of slowing down legislation, though, Harkin's proposal back in 1995 would have kept the 60-vote rule for the first vote but lessening the number required in subsequent votes. He said for instance if 60 senators could not agree to end debate, it would carry on for another week or so and then the number of votes required to end debate would drop by three. Harkin said it would carry on this way until it reached a simple majority of 51 votes. (Burlington Hawk Eye)

"You could hold something up for maybe a month, but then, finally you'd come down to 51 votes and a majority would be able to pass," Harkin said. "I may revive that. I pushed it very hard at one time and then things kind of got a little better."

If Senator Harkin's attempt at a rules change is defeated, if he's unable to get 67 Senators to vote in favor, the Democrats introduce a bill, any bill: it's certain the Republicans would filibuster. If cloture, 60 votes in favor of moving the legislation to the floor for debate can't be achieved, a Democratic Senator could raise a point of order arguing that the requirement of 60 votes to end the filibuster is unconstitutional.

The President (or presiding officer) could submit the question to the Senate for a vote. Under Standing Rules that vote would be subject to a filibuster, but, the presiding officer could simply declare that it isn't. After another vote, a tabling motion, a simple majority vote could declare Rule 22 unconstitutional. It's unlikely that the Supreme Court would ever hear the case since both Houses of Congress have the constitutional authority to set their own rules.

The end result would allow a simple majority to vote to end filibusters and advance legislation.

What's stopping the Democrats? They, like Republicans, understand that they are generally never more than one election away from being in the minority.

The filibuster, though, has never been as abused as it is being abused today.

What began as a Senator's right to speak without restriction because no restrictions were part of the Senate's foundation has become a ploy of obstructionists and a tool for those more intent on extortion than on respecting the precedents and history of the United States Senate.

The minority party has used the filibuster to overpower the majority and to block judicial confirmations in the past. Now the minority party is using the filibuster to attempt to ignore the election of 2008 and stop all Senate business. Worse, members of the majority party, and those who caucus with them and enjoy the benefits of being members of that very caucus are ignoring long standing precedent, that Senators vote with their caucus on matters of procedure, like cloture, to prevent legislation from coming to the floor until they can rewrite or veto legislation by a committee of one or demand concessions to which they are not entitled. If precedent can be ignored by members of a caucus then the filibuster has become too dangerous and too costly to be allowed under current rules.

History tells us that the House used to allow the filibuster and that the procedure was eliminated in order to make the House function more efficiently.

CSPAN shows us that the Senate no longer functions.

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