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[I apologize in advance to legal experts.  I'll tend to refer to "the filibuster" as the most well-known Senate rule permitting a minority to block Senate action.  However, I'm really discussing any Senate rules that allow a majority to be unable to carry out the will of the people.]

In a recent diary on what Democrats had or had not done, I stated that Democrats have a significant majority in the US Senate, but have not fixed the filibuster.  The Senate does not require approval from the House, President or Supreme Court to change the filibuster rules.  So, it could be an example of Democrats having no barriers (other than themselves) to do something.

Another DKos member commented he would not want the filibuster changed - in case in the future the GOP gained a majority in the Senate.

I see things differently.  Generally, I view the filibuster as undemocratic.  It may be reasonable to have a process by which every member of the Senate (who doesn't have an appropriate reason to be elsewhere) must sit in the Senate chamber and listen to a minority state its case for an hour or some other appropriate length of time.  But allowing a minority to actually prevent necessary legislative work for an indefinite time strikes me as contrary to democracy.  If you consider that the Senate is not a body of proportional representation (each state gets 2 Senators regardless of population), adding an additional undemocratic aspect is even more undesirable.

This is not my specialty - so if I'm mistaken, please direct me to an authoritative source for facts - but I believe that on the first day of a Senate session [once a year or every other year?] a simple majority in the Senate can change the rules.  (For some rules it may not have to be the first day of a session.)  Therefore, no matter what filibuster rules were instituted now, on the first day of a session in which conservatives held a majority they could institute any filibuster rules they wanted.  They could eliminate the filibuster so they could not be stopped.  Not fixing the filibuster one year doesn't seem to provide future security.

A recent email from said:

For five years, Senate Republicans have blocked President Obama's nominees to the labor board [NLRB]. Next month, the term of a current board member will expire -- leaving the NLRB without a quorum and unable to act.
Many progressives are arguing that the future direction of law and policy depends on who are the next appointees to the Supreme Court (and therefore, who is the next president in charge of appointing them).  In a sense, agencies like the NLRB are like that.  They make rulings that affect the direction of events in their area.  This is what these Senate rules which let minorities impose their will do.

Some DKos members might now ask, "What about Wendy Davis' filibuster in Texas to stop anti-choice legislation?"  I'd like to see Senators changing rules in the US Senate and state senates that allow filibusters.  However, as long as filibusters are legal, I won't criticize someone like Davis.  The GOP has no qualms about using the filibuster, and will do so as long as they are allowed.  The only issue I might have with Wendy Davis is whether she favors maintaining the filibuster rules.  Yes, the filibuster rules may occasionally stop bad legislation.  I imagine it blocks good legislation more often.  I'm sure there are other undemocratic mechanism that could be instituted that could occasionally stop bad legislation.  It would do more harm than good.  I believe each undemocratic mechanism in our government is a source of current and/or future harm.  

Consider current events.  Our elections are being attacked to benefit a privileged minority.  Citzens United, gerrymandering and 6-hour-long lines to vote.  Efforts at voter intimidation, voter ID laws, selective voter roll purges, etc.  These are attempts to impose minority policies on the majority.  We need to strengthen and maintain rule of the majority.  If these election abuses give conservatives 51% of the Senate, they can take away the filibuster so it can't be used to stop them.  As long as conservatives are a minority and have the filibuster available, they will use it.  The filibuster is more of a threat to the majority of regular Americans.

Regarding women's choice: The constitutionality of state anti-choice laws can be challenged in court and federal judges can rule on it.  It is the ability of minorities to block Senate action that is holding up the appointment of a number of federal judges nominated by Obama.  Assuming the nominated judges would be more likely to make pro-choice rulings, we would conclude that such minority mechanisms also threaten women's choice.

   -   -   -   -   -

How many impediments to decisions made by a majority do we want?  Suppose, the US Senate did not have rules allowing filibusters or other mechanisms that let a minority block a majority.  Let us say a majority in the US Senate passes a bill for a new federal law.  That doesn't mean it will become law.  The bill must also go to the House of Representatives.

In the 2012 Congressional elections, adding up all the votes for candidates in every Congressional district in the country, we find that 51% of the votes were cast for Democrats.  However, Republicans were given a majority of the seats in the House.  This was done by gerrymandering.  State governments are [generally] allowed to draw whatever lines they want for Congressional districts.  If the state government is controlled by Political Party A, it can design the districts so a disproportionately high number of people who vote for Party B to be clumped into a small number of districts, resulting in most of the districts having small majorities for Party A.  51% of North Carolina's voters picked Democrats, but Republicans got 9 out of 13 House seats.  In this manner, state governments can intentionally cause the misrepresentation of voters' will in Congressional elections.  Therefore, state governments also have the potential to prevent the Senate bill from being approved by the House.

Even if a majority of the members of the House do not have fundamental objections to the basic intent of the bill, there will often be details that the House would like to be changed.  The House and Senate must then attempt to make a compromise bill.

Even if that is passed by the House and Senate, it doesn't become law without going to the President.  He can veto it.  A President who was elected by only 51% of the votes can veto a bill supported by 59% of Congress.

But it's worse than that.  The President is not elected by direct vote of the citizens.  Voting for President in done indirectly through the Electoral College.  Sometimes this results in a candidate that received a minority of citizen votes becoming President.  This means a President for whom only a minority of the voters cast ballots can stop a majority bill from becoming law.

Congress can override a veto, but doing so requires more than a 51% majority.  Again, a minority can stop it.

If a bill is approved by the Senate, House and President, it becomes law.  However, it can then be challenged in court.  If federal courts determine the law is unconstitutional, the law is thrown out.

If, instead of a bill for a new federal law, the Senate had proposed a Constitutional amendment - it would be even more involved.  For instance, after approval by the Senate, House and President, 3/4 of the state legislatures would also have to approve it.

It doesn't seem to me we need additional obstacles against a majority in the Senate.

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Comment Preferences

  •  Tip Jar (2+ / 0-)
    Recommended by:
    Gooserock, Simplify

    "We all too often have socialism for the rich and rugged free capitalism for the poor." - Martin Luther King Jr.

    by workingwords on Mon Jul 08, 2013 at 11:00:16 AM PDT

  •  I'm for Keeping It But Small Max Number Per Term (0+ / 0-)

    Maybe 4-5 per year or whatever seems close to historic rates. The minority can defend itself against some extremes but must allow the majority to govern.

    Probably require a speaking filibuster too.

    We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

    by Gooserock on Mon Jul 08, 2013 at 11:05:06 AM PDT

  •  Cooling saucer of Democracy (2+ / 0-)
    Recommended by:
    Simplify, happymisanthropy

    I have no fundamental problem with the filibuster - if used judiciously and as intended

    however Jefferson's "cooling saucer of Democracy" has not just become a deep freeze, it is a puss filled pit of corporate horse trading hidden in the guise of 'tradition'

    I dare say that the time of a bicameral legislature may have had its time and we would be well off to think about euthanizing the senate - to save what remains of the US democracy

    "I want to keep them alive long enough that I can win them to Christ," - Rick Warren, Professional Greed Driven Scumbag

    by josephk on Mon Jul 08, 2013 at 11:09:45 AM PDT

    •  Or turn the Senate (0+ / 0-)

      into a body of proportional representation.

      Right now it's the opposite of proportional!

      Government and laws are the agreement we all make to secure everyone's freedom.

      by Simplify on Mon Jul 08, 2013 at 11:24:22 AM PDT

      [ Parent ]

      •  That's what the House of Representatives is for. (0+ / 0-)

        "That being said, I do agree I am going to hell. But for other reasons. Mostly boring tax stuff ' Amy Pohler

        by Annie B on Mon Jul 08, 2013 at 12:07:24 PM PDT

        [ Parent ]

        •  No part of our govt should be for disproportionate (0+ / 0-)

          The Founders included many undemocratic elements, including slavery and excluding women from the vote.  And initially, US Senators were not chosen by popular vote - they were picked by the state governments.  Those were the bad old days.  Let's ask what would be most democratic today.

          "We all too often have socialism for the rich and rugged free capitalism for the poor." - Martin Luther King Jr.

          by workingwords on Mon Jul 08, 2013 at 12:42:19 PM PDT

          [ Parent ]

        •  By proportional representation, I mean (0+ / 0-)

          multi-officeholder districts and similar arrangements in which each party has representation proportionately, and a majority forms out of a coalition, like in a parliamentary arrangement.

          There are good reasons why pretty much only Liberia copied our system of government.

          Government and laws are the agreement we all make to secure everyone's freedom.

          by Simplify on Mon Jul 08, 2013 at 02:39:05 PM PDT

          [ Parent ]

  •  Why rush into things? (2+ / 0-)
    Recommended by:
    Simplify, workingwords

    Let's wait to see how much more broken the system can get ...

    HA! HA HA!

  •  No, it should be nixed! (1+ / 0-)
    Recommended by:


    Government and laws are the agreement we all make to secure everyone's freedom.

    by Simplify on Mon Jul 08, 2013 at 11:22:32 AM PDT

  •  First, if Republicans take back the Senate (1+ / 0-)
    Recommended by:

    first thing they do is eliminate the filibuster. You think they are going to let Democrats to to them what they did to the Democrats?

    Second, the problem with the current set up is that we don't have Wendy Davis style filibusters in the US Senate. Aside from Ryan Paul's one true filibuster, what we have is the Republicans not letting bills get to debate by  just saying "We're going to block this." I would welcome more of the stand-up-and-talk type of filibuster simply because it would necessarily limit the number done. Even the Republicans don't want there to be video of them droning on and on about nothing day after day. They had the chance to do that, but Harry folded.

    "That being said, I do agree I am going to hell. But for other reasons. Mostly boring tax stuff ' Amy Pohler

    by Annie B on Mon Jul 08, 2013 at 12:06:52 PM PDT

    •  You've got a point (0+ / 0-)

      Why keep filibusters so Democrats can use them ... in a world where you just have to say Boo! to Reid and he 'folds' ?  Clearly, we know who will use the filibuster more - and it's not Democrats when the GOP has a majority.

      "We all too often have socialism for the rich and rugged free capitalism for the poor." - Martin Luther King Jr.

      by workingwords on Mon Jul 08, 2013 at 12:54:32 PM PDT

      [ Parent ]

  •  Yeah remember when the Democratic filibuster.... (0+ / 0-)

    stopped Scalia, Alito, federal district judges from being appointed and anything Republican presidents ever wanted? Yeah, me neither.

    Sign the Daily Kos petition and sign my petition to end the filibuster as well...

  •  To answer the question "Should the filibuster be (0+ / 0-)

    fixed?" I respond rhetorically, "Does a bear shit in the woods?".

    Republicans are like alligators. All mouth and no ears.

    by Ohiodem1 on Mon Jul 08, 2013 at 04:11:47 PM PDT

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