I just created a Facebook group entitled
"Abolish the Filibuster Forever Using the Constitutional Option"
and would be grateful if anyone using facebook would join it:
Below is my argument reproduced in its entirety for non-facebookers. It deals with what the Republicans did in 2005 and several other points that have been raised. It isn't as incendiary or interesting as it would be if I'd written it exclusively for an lbo-talk audience, but hopefully it doesn't bore people to death.
Michael
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An explanation of how we can make the US Senate into a majority rule institution as expounded in a famous paper by Martin B. Gold and Dimple Gupta.
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American government is now dysfunctional. It can't produce a fundamental solution to anything because it is hogtied by the 1975 revision of Senate Rule 22. That revision transformed the filibuster -- very unintentionally -- from an extreme measure used rarely into a new and terrible chokehold on all possible legislation. American government never had this problem before; it was never meant to have this problem; and it's time to solve it. Nothing serious can be done in this country before it is.
But fortunately, it's easy. It can be done in one day, at the beginning of any session of Congress. The method has been clearly laid out by one of the greatest authorities on the subject, Martin B. Gold, who literally wrote the book on Senate Rules (http://bit.ly/7NuI1m). And more importantly, it has already been acknowledged as correct several times over the last century by the Senate itself.
But of course the Senate won't do it until people bring pressure. This group is an attempt to get the idea out there and build support for it.
Martin Gold and Dimple Gupta's proposal is presented in this paper: http://bit.ly/7L7ngm
It's long, but the entire argument is laid out in the first three pages. The next 60 pages consists of backing it up. The "constitutional option" is their term for this maneuver, and is now in general currency.
In a nutshell, it's this. Senate rules are not in themselves perpetual. They need to be approved at the start of each session. What makes them look perpetual is that normally this is done by rote. But in fact and historically, there is nothing forcing the Senate to adopt the rules that governed the preceding session. It could make up a new set from scratch if it wanted to. Or could just change the parts it wanted -- like throwing out the filibuster -- and then adopt them. And since adoption of the rules has only ever required a majority vote, voila, we're out of the catch 22 loop.
If the Senate approves the present set of rules by majority vote, as they usually do, then we're locked into place, because among those rules is one that requires a 66 vote majority to change any rule. But at the start of the session, before adoption, the Senate is bound by no rules -- except the constitutional charge that it has to adopt some rules.
Of course the next session could vote bring the filibuster back. But that's unlikely, since it's rarely the majority who wants it. And even if it did happen, the knowledge that we could extinguish it 2 years hence would quickly remove its sancrosanctity.
The minority could of course sue and try to get the Supreme Court to overturn it. But after reading Gold and Gupta's paper, I think you'll agree they are unlikely to prevail. And if they did, we've lost nothing by trying.
The Senate in fact knows this is true. How do we know this? Because the threat to use exactly this trick is the only reason the filibuster rule ever got changed in the past. It's how Rule 22 was revised in 1975 from a 66 majority down to 60. And it's how the original 66 majority got passed in the first place in 1917. (Before that time, there was theoretically no way to stop debate even if you had a majority of everyone minus one). In each case, the Senator in charge of pushing the change faced determined opposition. And in each case, the Senator threatened to abolish the filibuster through the procedure described above. In every case, the opponents folded because they acknowledged this threat could be carried out. Otherwise they would never would have switched their votes to let it through -- it required them voting for something they were against.
Perhaps most interesting of all, the reason the term "constitutional option" is in general currency today is because this maneuver of using threat to force compromise was used as recently as 2005. Then majority leader Bill Frist threatened to abolish the filibuster unless there was a compromise allowing certain judges to get confirmed. And the threat had the usual result: a compromise was reached that allowed the majority threatening it to reach their goal.
The authority the Republicans relied upon in 2005 was exactly this paper by Gold and Gupta. In fact Frist wrote the introduction Gold's 2008 book on the Senate rules linked above. When you read the paper, you'll see there have been many instances of this threat and compromise maneuver in Senate history. But now that the filibuster has grown cancerous and is threatening the body politic, it is time to stop threatening and remove it surgically -- using the method that everyone in the know has always known would work.
There are admittedly many wrong ideas out there about how to abolish the filibuster. I say this as a man who has at one time subscribed enthusiastically to most of them. For example, many smart people think we could have stopped the recent healthcare filibuster any time we wanted if Harry Reid had simply forced senators to actually hold the floor, speaking continually as in the old days. In other words, some believe we could stop the strangulation of legislation simply by insisting on following Rule 22 to the letter.
Unfortunately when you actually read Senate Rule 22: http://rules.senate.gov/public/index.cfm?p=RuleXXII
you'll realize this isn't true. The 1975 revision not only changed the size of the majority, it also changed the meaning of debate -- or rather the meaning of "pending." All proposed laws are now considered to be pending until someone specifically asks to close debate. And once such a cloture vote is requested and acknowledged, you can't hold a vote on it for 30 hours. Now no one needs to talk and there's no way to make them. And everybody has lots of time to amble over to the Senate for a vote.
Many other well meaning people think we could pass major legislation by using the reconciliation process. But that is limited to expanding or contracting existing programs. You can't create new ones.
There are many other things about Rule 22 that many smart people believe that simply aren't true. But despite all that, this one is true. Read the attached paper, at least the first few pages, and if you're convinced, please pass it onto your friends by asking them to join the group. And if you have any questions or objections, by all means raise them in discussion. There is nothing stopping us from abolishing the filibuster in January 2011 when a new Senate convenes -- nothing except us.
The solution to the problems of democracy is more democracy.