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Tuesday, November 09, 2004

UPDATE (12/20/04): Captain Ed comments on the filibuster rules and the nuclear option.

Recent comments by (relatively) liberal Republican Arlen Spector of Pennsylvania have generated some controversy. He is (was?) expected to chair the Senate Judiciary Committee and thus be responsible for nominees to the federal bench. Therefore, when he suggested that Bush not nominate people opposed to abortion, the pro-life wing of the Republican party swung into action.

The outrage expressed was not unfounded. Spector survived a primary challenge from the right only with endorsement and the active support of President Bush. And therefore to be seen as laying the groundwork to oppose Bush's future judicial nominees was seen as a betrayal of that support. There were immediate demands that the chairmanship of the Judiciary Committee be given to someone else. Others in the party noted Spector's immediate backtracking from his original comments and his record of support for all of the nominees submitted so far by Bush. This second group is concerned that by denying Spector the chairmanship to which he is entitled under the seniority rules as they now exist, the more strident Republicans will provide cover for the few remaining liberal Republicans in the Senate (Snow, Chafee, etc.) to side with the Democrats in continuing to filibuster Bush's nominees.

I think there is a much more basic rule change that could be accomplished which would be more effective than denying Spector the chairmanship of the Judiciary Committee, and I have not seen it suggested anywhere. Do you remember "Mr. Smith Goes to Washington"? Jimmy Stewart was conducting a one man filibuster against the evil political machine. He literally had to stand and speak for days on end. There were two ways the filibuster could be ended. One was by a vote for cloture (which had to pass by a super majority) and the other was by the filibustering party yielding the floor. Once the filibustering party yielded the floor, the filibuster was over and a vote on the bill being blocked (or any other bill) could be held. Until the filibuster was ended, no vote could be held on the bill being filibustered or any other bill.

Well, that's not how filibusters are conducted nowadays. To conduct a filibuster today, all one has to do is declare one. If a vote for cloture cannot pass with at least 60 votes, the bill being filibustered is tabled and the Senate goes on to other matters. I think that's a bad rule. I think the old rule was better. It made the party obstructing a vote stand up in public and say so. It imposed the heavy price of halting all business in the Senate. The new rule allows the Senate to get on with other business, but by doing so, it lowers the cost of the filibuster, and that, of course, allows more of them. I do not think that the cost of filibusters should be lowered.

Tom Daschle, the soon to be former Senate Minority Leader and the architect of the strategy of filibustering Bush's judicial nominees, was defeated in this years election. I think we should find out whether his defeat was related to his strategy of obstructionism. I think that the rules of the Senate should be changed back to require that the filibustering party must hold the floor to maintain the filibuster. Let the filibusterers (is that a word?) explain why blocking Nominee X is so important that none of the other pressing business of the country can proceed. I think that because the people conducting the filibuster would be blocking the entire Senate agenda, rather than just one specific proposal, it would be easier for the Republicans to peal away a few votes among the blue dog Democrats in order to end the filibuster.

Under the old rules, the vote for cloture had to pass with a two thirds majority in order to be successful. Under the new rules, only sixty votes (three fifths) are required. Please note that I do not suggest returning to the two thirds requirement, although if I had to choose between returning to the old rule with a two thirds requirement and keeping the new rule, I would, reluctantly, choose the two thirds requirement.

Bush has noted that he earned some political capital in the recent elections and that he intends to spend it. I think that both the country and the Senate would be better off with fewer filibusters. I think that the investment of a little of Bush's political capital in a rules change could pay big political dividends by bringing some discipline into the procedures of the Senate. Now is the time for him to roll the dice, if he is ever going to do so, by forcing the opponents of his policies in the Senate to actually obstruct all of the business of the country in order to continue to block a few policies with which they disagree. Not that he's going to be around all that long, but I would love to see Terry McAuliffe try to explain to a talking head on Sunday morning that it is more important for Miguel Estrada not to be on the federal appellate bench than it is for, say, a supplemental Iraq appropriations bill to pass the Senate.

If Tom Daschle, whose seniority allowed him to deliver a substantial amount of pork to his constituents, was defeated as a result of his obstructionist tactics, accomplishing the rules change suggested here will make the filibuster once again the rarity it was when Jimmy Stewart played a political naif swimming among the sharks in DC. And Bush's policies and judicial nominees will receive the up or down votes they deserve on the floor of the Senate. By returning to the old rules, Bush might well gain a victory for both his policies and his party.
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