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The Democratic Strategist

Political Strategy for a Permanent Democratic Majority

A Way Out of Limbo

Please Democrats, read and understand Ian Millhiser’s article, “How to Kill the Filibuster with Only 51 Votes” in The American Prospect. If Millhiser is right, this may be our best chance to escape the hellish predicament of not being able to enact anything, even with 59 percent support of the U.S. Senate. As Millhiser explains,

With conservatives salivating, and progressives seriously questioning whether American government is too crippled to solve major problems, it’s difficult to imagine that Democrats won’t take additional losses next November. Even if they don’t, however, a minority bent on total obstructionism now enjoys the power to veto nearly any bill or nominee. With the exception of the annual budget, literally nothing is likely to pass the Senate for the next three years.
It doesn’t have to be this way, however. A long line of Supreme Court decisions forbid former legislators from tying the hands of their successors. Thus, although current senators may choose to impose a supermajority rule on themselves, they cannot impose such a rule on a new Senate. Under the Supreme Court’s precedents, just 51 senators will have a brief opportunity to reform or eliminate the filibuster next January — but this opportunity will disappear if they do not act right away.

Millhiser goes on to give an account of two U.S. Supreme Court decisions establishing and affirming the aforementioned precedents, and adds:

Taken together, these two decisions open a narrow window every two years, when the Senate’s newly elected members take their seats. During this time, only 51 senators (or 50 senators plus the vice president) are needed to change the filibuster’s 60-vote threshold, eliminate the 30 hours of delay that the minority is allowed to demand between a successful cloture vote and a final vote on a filibustered bill, or even eliminate the filibuster entirely.

Further, Millhiser reasons,

The reason why the filibuster exists is because the rules of the Senate say that it exists. Article I of the Constitution provides that “each House may determine the rules of its proceedings,” so the Senate is allowed to create a rule requiring 60, 70, or even 100 votes before it can proceed with any business.
What the Senate is not allowed to do, however, is tell future senators what rules must apply to their proceedings. Because Reichelderfer prohibits a previous Congress from tying the hands of a future Congress, the rules governing Senate procedure in 2010 cannot bind a newly elected Senate in 2011. The old Senate rules essentially cease to exist until the new Senate ratifies them, so a determined bloc of 51 senators could eliminate the filibuster altogether by demanding a rules change at the beginning of a new session. Once the new Senate begins to operate under the old rules, however, this can function as a ratification of the old rules — essentially locking those rules in place for another two years.

Yes, the reactionary activists of the Roberts Court could conceivably screw with any such Democratic initiative, as Millhiser considers. He adds, however,

Such a turn of events, however, is exceedingly unlikely. For one thing, if the Supreme Court accepts the continuing-body theory, it would do a whole lot more than simply lock the filibuster in place. Were the mere existence of a legislator who has not stood for election since a law or rule was enacted enough to prevent newly elected lawmakers from repealing a recently enacted law, then all federal laws could be enacted with a six-year shield of invulnerability — untouchable until the last senator present when the law was enacted stands for a new election. Nothing in the Supreme Court’s precedents suggest that erecting such a shield would be acceptable, however — indeed, they say quite the opposite. As far back as the Court’s 1810 decision in Fletcher v. Peck, the justices unanimously declared that “one legislature is competent to repeal any act which a former legislature was competent to pass,” acknowledging no exception for laws enacted within the last three election cycles.
There is also a profoundly practical reason why the Court is unlikely to undo a change to the Senate rules — it lacks the authority to do so. Under a line of precedents stretching back to its landmark 1803 decision in Marbury v. Madison, the Court will actually refuse to hear any case involving a matter that is “textually committed to the political branches.” In other words, if the text of the Constitution itself provides that a particular question must be resolved by the Senate, the House, or the White House, the Supreme Court won’t stand in that branch’s way…The Supreme Court would be grossly overstepping its bounds to second-guess the senators.

And lest we forget, we are one justice away from restoring a modicum of sanity to the High Court. Millhiser concludes:

Now that it has enough votes to sustain a filibuster, it is exceedingly likely that a Senate minority bent on pure obstructionism will have enough votes to block virtually all of the majority’s legislative agenda. Meanwhile, health-care costs will continue to grow at three or four times the rate of wage growth. Long-term deficits will continue to threaten the future of American prosperity. Largely unregulated markets will remain a time bomb that could trigger another great recession, and catastrophic climate change will continue to threaten the very existence of many island and coastal civilizations.
Fifty-one senators will have the power to change this outlook next January — but they get exactly one chance to act.

The downside of Millhiser’s challenge is that even under the best case scenario, we are stuck with the current mess for 11 months. However, that should not deter Democratic leaders from making use of the budget reconciliation process as much as possible in the interim, when the stark alternative facing them leading up to November is campaigning with zero Democratic reforms enacted between now and then.
To do otherwise amounts to a pathetic abdication of political responsibility, recalling a skit by one of the guerilla theater groups of the sixties, in which a group of protesters occupies the Dean’s office of a large university. When ordered to leave, they get down on all fours and crawl out of the building on hands and knees, chanting “Grovel, grovel, grovel. Who are we to ask for political power?”
So the question for Democratic leaders is, “do we have the mettle to act on our mandate?” The only acceptable answer for a political party that hopes to have a future is, “Hell, yes.”

One comment on “A Way Out of Limbo

  1. Lee on

    As made clear in Ian Millhiser’s article and elsewhere, ending the filibuster in January 2011 (and thereby ending minority rule) is eminently doable. Most of those “in the know” in Washington do not believe that the Democrats have the guts to do it, and there are doubts that they could muster the votes, even with the 55 or so Senate seats that may remain to them after the 2010 election. However, if the Democrats do not end the filibuster, there is hope, if current deficiencies in Democratic leadership continue it will be the Rebublicans with 50 plus Senate seats. They are not likely to brook minority rule when they are the majority, and they do have the guts.

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