Saturday, January 8, 2011


If, as seems reasonable, you read everything posted under this name and carefully consider all the biases expressed here, you would know how much Rachel Maddow has contributed to what gets regurgitated every week. Hers is the most significant broadcast there is, and the sanity she projects in this land of crazy may be all that keeps us from just running outside and screaming into the night.

It was Timothy Crouse and Hunter Thompson who first explained to this blogger the pack mentality of what used to be called "the press" although if I weren't s young when I read the Drury Advice and Consent series that education might have come earlier, albeit from the right hand side of our politics. Which is fine.

What Rachel Maddow has become is the antidote. Much like Jon Stewart does (sorry, Jon, we take you more seriously than you would like) she takes the Official Meme of the Moment and examines it critically to see whether there is anything to support it. Sometimes there is but never to the level the blow dried haircuts try to convey, and usually she, or Jon, or Keith Olbermann or Lawrence O'Donnell are able to put what passes for thought in the perspective it deserves, which is usually to say, none.

My favorite recent for instance is a line that has come at us fairly slowly but which seemed to pick up steam around 2007 which, not coincidentally was the most recent time when the Democratic Party won what might be called "organizational control" of both houses of Congress from the Republican Party. A little research tells us, indeed, it was Senator Mitch McConnell, the minority leader in waiting following the 2006 election, who announced that, with that "everyone knows this" voice that almost always fools the beltway crowd:

the minority in the Senate is almost never irrelevant, particularly a robust minority of 49. The Senate was constructed by our founding fathers, and then the subsequent evolution of the filibuster rule has turned the Senate into an institution that really can only operate on a bipartisan basis. It takes 60 votes - not 51 - to do virtually everything in the Senate. Neither side has had 60 in the two decades that I've been in the Senate. So in order to accomplish something for America, we have to be able to put together deals that make sense. Otherwise, the minority party's in a position with a mere 41 votes to prevent passage of almost anything. The majority leader's job is much tougher. He has got to get 60.

So the pack described by Drury, Crouse and Thompson repeated that teaching, with the knowing, insider's wink, about how all the rest of us fools who think that legislation can pass the Senate if a majority favor it, hadn't a clue about the real world. Everyone knows it takes a supermajority: a vote for cloture, to pass anything in the Senate. Founding Fathers, y'know, and all that....

Never mind that only 3 years or so earlier, Vice President Cheney got to vote to break a 50-50 tie and remove taxes on dividends and in 2005 so that they could cut medicaid benefits. Everybody knows you need 60 votes, not 51.

Yes, yes, I know the Cheney votes were critical because of the budget reconciliation rules, or exception, or something about Senator Byrd, and will address that in a way, in the following few paragraphs. Moreover, we need here brief aside about researching the vote on historic legislation. Because of the way legislatures, including both houses of the federal Congress, operate, it is difficult in retrospect to figure out what vote, if any, was the reason something passes. Often the key vote is on an amendment and, when that passes, everybody jumps in and supports the bill so that their vote cannot be used against them in a subsequent election. This is known as the "I was for it, before I was against it" doctrine, named after Senator Kerry's well meaning, but ultimately wrongheaded attempt to explain this to a public which prefers slogans to reality.

The point is not whether 51 votes should be enough, or 60 or 67. The point is that it is not because "everybody knows" that 60 votes are needed. The point is that 60 votes are needed because somebody has demanded that. The first person with access to large numbers of people to notice this was, at least to the ear and eyes of this consumer of news, Rachel Maddow early in 2007:

Traditionally, constitutionally, you need a majority of votes to pass something in the U.S. Senate. In extraordinary circumstances, a weird rule called “the filibuster” could be used to block an upper down majority vote on something. Sixty senators would have to vote to shut down the filibuster—extraordinary circumstances. That‘s how these filibusters worked for—I don‘t know, say the entire existence of the United States Senate.

Through, say, the 1980s and 1990s, it was normal to have 20 or 30 cloture votes, 20 or 30 filibusters during a given session of Congress. That started to pick up a bit in the mid-90s to about -- 50 votes. When Democrats were in the minority in 2005/2006, there were 54 cloture votes, Republicans freaked out about that publicly. They threatened the nuclear option to end the filibuster rule to take away that power in the Senate.

Then what did the Republicans do in the very next Congress when they became the minority? One hundred and twelve cloture votes. That‘s 112 --


Look, I am all for the Constitution, I‘m all for as being protected from the tyranny of the majority. I dig it. I like arcane rules that protect minority rights—duh. But this seems sort of anti-small “d” Democratic. It seems like this rule is not being used as intended.

Exactly. Perfect. Except she should have stopped there. She did not, and what she said next was wrong. So wrong, in fact, that in its wrongness she made the real point in issue. Here is what she said:

The Republicans search for meaning by the way of the filibuster threat is having a tangible effect. It‘s making the American people hate them. The approval rating for congressional Democrats, just that you know, it‘s up 25 points from a month ago. Independents, their approval rating is up 12 points. The approval rating for congressional Republicans is down, that‘s fallen four points over the past month.

The GOP‘s “obstruct at all costs” strategy is making them unpopular. The practical policy effect they‘re having is to essentially just water down things that the Democrats are passing anyway. And they are behaving in such a radical way that it‘s causing even constitutionalists minority rights dorks like me to seriously consider the wisdom of scrapping some of the rules that I would otherwise cherish because it turns out that those rules assume a level of good faith and keeping the country‘s interests at heart. That just isn‘t in evidence right now.

We know Rachel was wrong because, rather than make the Republicans unpopular, as it should have, the strategy actually worked. People on our side of the political fence jumped all over the President for compromising on legislation even though his party supposedly "controlled" both houses of Congress. People who flit back and forth between the various schools of what passes for political thought watched Congress' vacillation, its inability to get anything done and the weak tea it produced and cast a pox on anyone who has anything to do with it. By last November, it was out with the ins and in with the outs. Republicans take the House, and gain in the Senate.

And that is where the issue is. It is not the rules that need to be changed, even if they could be, something quite unlikely in any material sense, as will be discussed below. The reason for the rise in the use of the filibuster, the reason Senator McConnell's "everybody knows" moment was brilliant---as in Lex Luthor brilliant---was because if requiring 60 votes to do anything is accepted as a reasonable thing to do, then it is a reasonable thing to do, and the ploy becomes reality---you really do need 60 votes.

, and later, the so-called "Byrd rules" were, in a way, the cause of all of this, as it attempted to be, and is in some ways, a solution. But it is a band-aid placed out there, where it was agreed that a filibuster could not be used to prevent the passage of legislation that keeps the government in operation: budget reconciliation. The Byrd rule, named after Senator Byrd because he was the majority leader when this was all agreed to, meant that this no filibuster thing would be limited to bills that actually have something to do with the federal budget.

It is a good thing we have this exception, but it is a bad thing, too. It meant that filibusters would not be used in the way that the public would object to the most, and object to to the point of wanting the whole filibuster thing ended. It took the pressure off.

When the Senate was a collegial body, say, up until the Byrd rules, it often acted as a secret, somewhat bipartisan, club. Except on the big things, what was called senatorial courtesy kept the filibuster from being overused, but also prevented a federal judge from being confirmed if one of the Senators from the nominee's state objected to the nomination. The filibuster was limited to things that a vocal minority, not necessarily on partisan grounds, objected to.

The famous ones of my youth, 1958, 1962, and the failed 1964 and 1965 ones against the civil and voting rights acts, were largely the work of what were then called "southern Democrats" but largely against the interests of the national Democratic Party. The Senate Majority Leader in 1958, himself a nominal southerner, tried to stop that filibuster before the bill became worthless mush, because he had national ambitions. (Maybe that leader, his name was Lyndon Johnson, by the way, did not have his heart in that fruitless exercise as some have charged. Maybe he did. No matter. It was not to be broken, and really took the murder of President Kennedy and a nation's feeling of guilt and remorse over that, to finally get these bills passed, to be signed, ironically, by President Johnson whose work, and speeches made up for any failures in 1958.)

But that clinches the argument. It is the public that needs to stop this. Rules changes will not do it, since there are always other ways to stall and tie up the Senate which requires "unanimous consent" to do anything at least one hundred times a day. The public needs to see what Senator McConnell has accomplished and revolt in the way Rachel Maddow thought they were doing in 2009.

Some blogger expressed the idea in late 2009 that Senator Reid could stop what Senator Byrd had agreed to:
the idea that the threat of a filibuster was the same as the filibuster itself.

The blogger said:

If Republicans want to keep suggesting the absence of a quorum, to prevent the Senate from voting on a good health care insurance reform bill (preferably a medicaid for all bill, but one with at least some government agency which will provide competitive insurance for those unwilling to accept the gouging of a private money making company with a ballpark named after it) then let them do it. No, it will not be covered on live tv except C-SPAN (the cable nets have flying balloons to cover and would not have time to show quorum call after quorum call, but the fact that the Senate is unable to do any business for this reason will be reported, and, from time to time in this ordeal, perhaps over 50 some odd Democratic Senators could sit in the chamber so that the absurdity of the suggestion of the absence of a quorum was illustrated in a way the fools we live with could understand and the American people would see why they are being denied what a majority of them want.

A House of Representatives that spends its first days reading, a sentence at a time, the parts of the Constitution that seem biblical in tone, and then devote a week to passing a bill with a name that shows its political intent as much as anything, which cannot pass the Senate and would be vetoed if it could, is not interested in governing as much as it is in politics. That is what the Senate has been about since 2006. If the answer to that is a pox on all their houses we are sunk. If the truth be told---that one party has abdicated any interest in the the fate of the nation and cares only about elections (witness, for instance, the obscene number of Senators who voted against the nuclear arms treaty with Russia---including much of the Republican leadership), then maybe we are on to something.

Those of us who have worked in government, as appointees of politicians, have a firm idea of what is government and what are politics. A politician who briefly was a boss, misunderstood the constant line drawing that is done and asked what we had against politics. Your blogger said he had nothing against it---loves it, as a matter of fact---but that is not what he is paid to do. That line seems almost quaint today, though most of us appointee types still follow it. The electeds, at least those in legislative bodies, federal and, at least where I live, state as well, seem to no longer recognize that there is a time for politics, but a time for governing.

So, that brings us back to the filibuster and the need for the public to curb it by showing disgust for its misuse. Changing the rules will not end it---there is always a loophole and a trick around a rules change. Moreover, my beloved Ms. Maddow, her fellow traveller, Keith Olbermann and their frequent replacement, Chris Hayes, three real heroes to me without qualification keep saying something about the Senate's right to change its rules on the "first day" of the "session" as if this is some clearly expressed thing in the Constitution.

It is not. All the Constitution says, as relevant here is that
"Each House may determine the Rules of its Proceedings..."
ART 1, SEC 5.

It doesn't say anything about the beginning of a "session" but only that that "The Congress shall assemble at least once in every Year" art 1, sec 4, and, under the 20th Amendment "such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day."

So while someone might say the "first day" of the Senate is that day, that would be
so if the Senate stopped existing every two years, but the Constitution does not say that. And "the rules" which the Constitution says each house may adopt, include this rule which the Senate (or "a Senate," if you insist), adopted:
"The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules."
Rule 5.

Some may not like this rule and there is an argument that it violates at least the spirit of the Constitution in that it allows dead people to bind the Senate forever, but laws passed by dead people continue, and there is not hard and fast answer to this question. All there is an argument. And given the fact that the Supreme Court is quite unlikely to intrude on the Senate's view of its own rules, that's all we have: an argument.

And, just so we don't get further confused there's this: If the Senate rules continue from Congress to Congress, without being adopted anew (the House has a different approach), those rules include this little kicker in the Mondale amendment of 1975, in Rule 22 about how to invoke cloture:
"if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn -- except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting -- then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of."

Sen Mondale agreed to this. It means that rules changes go by the old rule: not 2/3rds or even 3/5ths of the body as a whole, but 2/3rds of the Senators in the room at the time of the cloture vote.

It is a great disservice to all those who fought against filibusters to make it sound so easy to change the rules. If that was so, the Senate Majority
Leader Johnson of Texas, would absolutely have done the deed in 1958. He was no fool, and knew what had to be done to break the Southern filibusters of civil rights legislation. He wanted to run for President two years later and knew that he had to do something to distance himself from the deep south, but this was something he
could not do. Neither could his successor Senator Mike Mansfield of Montana, another strong leader, who would have done what you suggest if it were that easy.

There is one way that comes to my mind, and it is the so-called "nuclear option" dreamed up by Vice President Cheney. It would have Vice President Biden rule
that the Senate ruled need to be readopted from scratch every two years and cannot be subject to unlimited debate (though the second half of that flies in the face of 240 years of precedent). But he is the president of the Senate. The Senate parliamentarian would certainly disagree, but his determination is not binding. It can be upheld by a majority vote under Rule 20 which requires that it be
decided "without debate."

We win that one, but the precedent that any Vice President can make ad hoc rulings where his party controls the Senate is a very dangerous precedent, I think, which is why most liberals opposed it when Vice President Cheney floated it.

Don't let anybody fool you. This is a very tricky issue and not one easily resolvable. The only solution is, as always, citizen action and that, when against the money that disguised as campaign contributions is where the heart of Congress lies, and the pretend news that doesn't have a clue about how to report on any of this, is a daunting task, to be sure, but it is the only way.

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