Filibuster roundup, including a defense of it
-- Useful to have Paul Krugman on the case, today.
-- A friend who is a lawyer and has worked in politics provides this extra bit of evidence-hidden-in-plain-sight. As we all know, the Constitution allows the Vice President to cast a vote in the Senate in only one circumstance: to break a tie. Or, as Article I, section 3, puts it, "The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided." My friend adds:
"The fact that the founders expected the possibility of "equally divided" votes where the VP would break a tie is another piece of textual evidence for majority rule except where expressly provided elsewhere. The VP cannot break a tie if the decisive vote is 60."
-- The dysfunctional and distorting nature of the modern reliance on the filibuster is on top of a different dysfunctional and distorting aspect of the Senate: that the 36+ million people of California, and the 500,000+ people of Wyoming, are each represented by two Senate votes. I go into the combined effect of these factors in my upcoming Atlantic article.
-- On why the current plague of filibusters makes it hard to govern, a reader makes the apt comparison to California:
"The same problem exists in California regarding closing the budget deficit, since there is a supermajority requirement to raise certain taxes. In general, the Democrats would raise taxes and the Republicans would cut services.
"Given the Democrats' modest majority and the votes required to pass tax legislation, the legislature is at an impasse. More important, there is no one for the voters to blame. Since no party can implement its program, no individual or party is responsible for the result. My conclusion -- supermajority rules are inconsistent with a functional democracy."
-- Charles Stevenson, a veteran of the Senate staff, gives a (measured) defense of the arrangement, and specific suggestions for repair:
"As a longtime Senate observer and a staffer for 22 years, I am less troubled than you about the filibuster. I've seen it used by supporters and opponents of measures I felt strongly about, so it's an important part of the legislative toolkit. I do agree that the tactic has been overly used in recent years and would like to see some restraint. Drawing on your suggestion that David Axelrod [and others] read some history, here are some historical points.
"1. What forced the adoption of the first rule to cut off debate was press, public, and even Senatorial outrage at the filibuster used in February-March 1917 to block passage of the bill to arm U.S. merchant ships just after Germany announced unrestricted submarine warfare against even then-neutral U.S. ships.
"2. What allowed adoption of the 60-vote rule to replace the 2/3 vote requirement was the post-Watergate increase in the number of Senate liberals and diminished intensity among southerners since civil rights legislation was largely on the statute books.
"3. What has led to increased use of the filibuster in recent years, I believe, is the "demonstration effect" that follows successful use of a tactic which hadn't been much used before. For example, no one had tried to amend the actual text of treaties between the Versailles pact ending World War I and the 1977 Panama Canal treaties. But once Senator Jesse Helms [R-NC] took advantage of the rules permitting such amendments, and nearly won, the device became common practice.
"4. The only way to force restraint now, I believe,is a combination of public outrage and some baby step changes in rules and precedents. I don't foresee -- or favor -- wholesale repeal of rule XXII, and I think the "nuclear option" of a Vice Presidential ruling that the filibuster is somehow unconstitutional would be a dangerous abuse of power. But I think that determined legislative craftsmen could devise some situations where rulings could be made to make it harder to use the filibuster so much and so easily. What I'm calling for is an effort to reverse engineer the rulings allowing for post-cloture filibusters and other delay tactics used by conservative Senators after the 1975 rules change. I've been away from the Senate precedents too long to be more specific, but I have faith in the skill of parliamentarians to craft solutions."