Serving the Flathead Valley & Montana since 2006. A reality based independent journal of observation & analysis. © James Conner.
Jon Tester and Max Baucus were among the 52 Senators who today voted to restore majority rule on most Presidential nominations. Which is to say, they voted for a rules change curtailing the requirement for a 60-vote supermajority to invoke cloture (end debate). It’s a long overdue decision to revert to the Constitutionally required way of doing business in the Senate — a decision, as Josh Marshall at Talking Points Memo observes, that was strongly opposed by Pro Choice Democrats:
Pro-choice groups especially have lobbied hard against abolishing or limiting the filibuster because they want to have it available under a future Republican administration to block an anti-choice Supreme Court nominee. (Not only the choice movement - other important constituencies, but them especially.) I understand the sentiment. But it just totally flies in the face of all evidence and experience from the modern judicial confirmation era - which I’d date from the mid-1970s.
Put starkly, when have Democrats ever used the filibuster to block Republican Supreme Court nominees? Answer: never. You needn’t even look at it from so narrowly procedural a perspective. What about Justices Roberts and Alito? President Bush was able to place maximal GOP choices on the Court both times. And fairly easily.
Marshall’s point that Democratic filibusters never have been a barrier to Republican appointments of right wing jurists to the Supreme Court was so obvious that I failed to recognize the pro-choicers’ desperate love of the filibuster when, in early 2010, I unsuccessfully tired to persuade Montana Democrats to formally ask Tester and Baucus to eliminate the filibuster. Here’s the petition I wrote:
25 January 2010
WHEREAS: the current requirement for a 60-vote supermajority to invoke cloture in the U.S. Senate allows as few as 41 Senators, potentially representing as little as 11.3 percent of the total U.S. population, to block a vote on legislation; and
WHEREAS: the Senate’s requirement for a supermajority to close debate prevents the passage of legislation for which there is the support of a simple majority (one-half plus one) of Senators; and
WHEREAS: the Constitution of the United States requires Congressional supermajorities in only seven situations (override of a Presidential veto; ratification of treaties; conviction of impeached officials; expulsion of members; proposal of Constitutional amendments; remove disabilities to serve as per the 14th Amendment; determine as per the 25th Amendment that the President is unable to discharge the powers and duties of his office); and
WHEREAS: the Constitution expressly empowers the Vice President, in his capacity as the presiding officer of the Senate, to cast the tie-breaking vote whenever the chamber is equally divided, a provision from which we must infer that a only simple majority is needed to make decisions unless the Constitution explicitly requires otherwise ; and
WHEREAS: the Constitution can be amended only by meeting the requirements set forth in Article V, and therefore cannot be amended by the operating rules of the Senate or House of Representatives; and
WHEREAS: it is clear from the black letter language of the Constitution that the supermajority requirement to invoke cloture is unconstitutional; therefore be it
RESOLVED: that the (insert name of organization) respectfully requests that Montana’s Senators, Max Baucus and Jon Tester, publically and immediately announce that they (1) oppose all requirements for supermajorities in the Senate other than those expressly required by the Constitution, and (2) will actively and enthusiastically and effectively join and/or sponsor all efforts to return the Senate to rule by simple majority; and
RESOLVED FURTHER: that the chair of this organization shall immediately (a) release this resolution to the major news media in Montana, (b) post this resolution on this organization’s website, and (c) send this resolution to all political candidates, political parties, and good government organizations in Montana.
Democratic foot-dragging on restoring majority rule in Senate has had disastrous consequences, most notably the Affordable Care Act. After Republican Scott Brown replaced Ted Kennedy in the Senate (thank you, Martha Coakley), and Democrats no longer had 60 votes, improvements to the ACA became impossible. And as long as 60 votes were a de facto requirement for moving legislation, health care reform could be, and was, held hostage by the likes of Ben Nelson (D-NE) and Joe Lieberman (I-CT). That may not have been the intent of the pro-choicers who opposed filibuster reform, but that was the consequence.
Democrats must now concentrate on passing good legislation, always the best way to win elections. That becomes easier in the Senate, but not in the House thanks to the House’s capture by the Tea Party controlled Republicans. I will always wonder whether Democrats would have lost the House in November, 2010, if they had ended the filibuster in January of that year.