Rachel Maddow & Ezra Klein are not careful what they wish for.

By mw | Related entries in Dodd, Health Care, Senate


You cal that a filibuster? That's no filibuster. This is a filibuster.

Rachel Maddow has been waxing eloquent of late about what she considers “abuse” of the filibuster rule in the Senate by Republicans “obstructing” the legislative process. She ignores the simple fact that there is a 60 vote filibuster proof Democratic majority caucus1 in the Senate, making it mathematically impossible for the Republicans to maintain a filibuster on anything. At worst, they can be accused of enabling Democratic party obstruction on any given bill. That said, she and Ezra Klein made some interesting points in Monday’s show about the history and evolution of the filibuster rule in the Senate.

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Rachel complains loud and long about the GOP “abuse” of the filibuster, while glossing over the Democratic “abuse” of the same procedural tool. To be fair, she does make a perfunctory mention of the Democrats use of the filibuster to block George W Bush judicial nominations. The Republicans had a smaller majority in the Senate at the time, so the Democrats then (unlike Republicans now) actually could filibuster anything.

That 2005 episode famously prompted a Republican leadership threat invoking the “nuclear option” to change the Senate rules and limit the use of filibusters. The showdown was averted by the bipartisan “Gang of Fourteen” led by John McCain, effectively saving the filibuster and earning him the enmity and derision of the right. Those same partisans on the right should be on their knees right now thanking John McCain for allowing Republicans to retain what little relevance they have in the Senate today. At least they can attempt to cobble together bipartisan filibuster efforts (which is the only kind that can succeed in this particular Senate). Run of the mill partisan hypocrisy aside, it was this exchange that caught my attention:

MADDOW: “Well, this has been a subject of frustration to people in both parties at different times and at different, more or less, convenient intervals… How hard is it to get rid of the filibuster? I feel like I‘ve read a lot of different analysis about how many votes it would take and what process you‘d need to kill it if you wanted to.

KLEIN:
“People disagree on this… What you‘d basically, I think, need to have is Congress will need to remember that it is supposed to be an independent branch of government that is supposed to act on major, going concerns. And so, you‘d have the two parties get together and decide, “We don‘t want it to be the case that when we‘re in the majority, we can‘t do any of the things we promised the American people we‘d do.”And so, six years from today, when we don‘t know who will be in power the filibuster phases out. But for that to happen, you need Congress to begin acting like a branch of government and not just an attachment or an accessory of the president—which hasn‘t been the case for sometime now.”

Somebody once said something about the consequences of failing to learn the lessons of history. You might think Ezra and Rachel would learn something from the Republicans who were once so exercised by Senate filibusters, and who are now – less so. But, let’s go with Ezra’s six year proposition. Contrary to his assertion, we can make an educated guess at what the Senate will look like six years hence.

I’m already on the record about the likely composition of the Senate over the next two election cycles. On Tuesday, Chris Matthews took a closer look at the “Top 5 Endangered Senators” in 2010 cycle:


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Interestingly, the top 5 endangered Senators are all Democrats. The 2010 Senate election will be played out on a structurally even playing field, with each party defending an equal number of seats. Losing five seats would have to be considered a rout and unlikely under those circumstance, but nevertheless Ron Brownstein and Charlie Cook invoke that very possibility (at the 6:20 mark).:

Chris Mathews: “Who is the most vulnerable Democrat?”

Ron Brownstein: “I would say Dodd. One thing to keep in mind though Chris… In big years, in wave years, in 1980, 1986, 1994, 2002, 2006 all the close Senate races went the same way. In many ways, these guys are not entirely the captain of their fate…

Chris Matthews: “Can a Republican lose this year coming up? Can a Republican incumbent lose any race anywhere next year?

Charlie Cook: “I would not be surprised to see no Republican incumbent House or Senate lose.”

Even if there was a five seat shift, the Democrats would retain a majority with Joe Biden breaking the partisan tie. I am sticking with my forecast of a net gain of 2 or 3 seats for Republicans. Regardless whether it is 2, 3, 4 or 5 pickups in 2010, it gets more interesting in 2012, when the field tilts dramatically in favor of Republicans. Of the 33 seats contested, the Democrats will be defending 24 seats, and the Republicans only 9. Even if they win 2 seats in 2010, it is virtually a fait accompli that the GOP will retake the Senate majority in 2012. In 2014, 21 of the 33 seats are defended by Democrats and 12 defended by Republicans. Again – advantage GOP.

Which brings us back to Ezra Klein’s plan for phasing out the filibuster – “And so, six years from today, when we don‘t know who will be in power the filibuster phases out…”. Uh Huh. Should some version of Klein’s plan actually make its way to the Senate floor, it will raise the specter of a simple majority of Republicans in 2015 undoing the Health Care plan that required a 60 vote Democratic plurality in 2009. Definitely in the “be careful what you wish for” category.

OTOH, should the Democrats sponsor such a measure in the Senate, they might find some surprising bi-partisan support from Republicans with a somewhat longer view.

Cross-posted from Divided We Stand United We Fall.


This entry was posted on Thursday, December 24th, 2009 and is filed under Dodd, Health Care, Senate. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

20 Responses to “Rachel Maddow & Ezra Klein are not careful what they wish for.”

  1. dmf Says:

    to claim there is a “filibuster proof” amount of democrats in the senate is both silly and naive. you’d have to assume dems are as monolithic as reps are. which, by definition, they are not.

    dems these days are the de facto “not republicans”.

    not to mention, there are only 58 of them.

  2. B.Tau Says:

    The nuclear option was a bit more complicated than you make it seem. It only would have abolished the filibuster on judicial nominees. Chris Bowers says that the same essential process could be use to override filibusters on other bills, but the ruling from the chair that the GOP was seeking in 2005 only concerned judicial nominees. If it had passed, other bills and legislative actions still would have been subject to filibuster.

  3. mw Says:

    @dmf
    Picky picky picky. Ok. I’ll correct the offending sentence to a 60 vote Democratic “caucus”. And the Dems don’t seem to have a problem harnessing the 60 votes when needed. They do it the old fashion way. They pay for it.

    The lack of fidelity to party principle was a complaint often heard from the GOP partisans when they were in the majority. It is probably just easier to maintain party discipline when a minority party in opposition.

    Silly and naive? Perhaps. Also a fact.

  4. mw Says:

    @Tau
    True. But if the precedent had been set by Reps that the filibuster can be set aside by the majority when convenient, it would have been much easier for the Dems to take similar action now.

  5. Simon Says:

    It’s not so much that the nuclear option was more complex, but that it was more specific. At least as I understood it at the time, it wasn’t just a rule change, it was a particular means of changing the rules: the attempt to have the presiding officer fradulently rule that the filibuster was unconstitutional, an action that a simple majority of the Senate could approve. That was why I found the nuclear option so crassly offensive as to speak out against it: regardless of the merits vel non of the filibuster, the constitutional argument was so obviously misbegotten. (At the time, that position didn’t make me very popular.)

    If the democrats propose to legitimately abolish the filibuster, that proposal is foolish, but it’s at least stupidity cut fair and square. Actually, I was just listening to a talking head on NPR last night, who whined about how we need to “restore” majority rule in the Senate, as the founders intended. When your reasoning starts with such gross ignorance of our Constitution and constitutional history, you’re pretty much bound to get it wrong. That kind of crude majoritarianism is always unattractive, becomes offensive when it is only wheeled out for partisan convenience, and is spectacularly inapt when applied to the Senate, a body that not only is not and never was representative of “the majority,” but which in fact created in part to serve as a counterweight against the majority.

    Failing to learn the lessons of history may or may not have consequences, but failing to learn history, whether you grasp its lessons or not, will certainly end up making you look like a moron. So does changing sides on an issue as its partisan valences switch–as Paul Krugman and Jeff Sessions (to name but two) demonstrate.

  6. Nick Benjamin Says:

    @mw
    Keep in mind that no major Conservative legislation has ever gotten through Committee, passed the House, had 51 clear votes in the Senate, and been defeated by the filibuster. It just hasn’t happened.

    And it almost happened with the health care bill.

    Maddow and Klein don’t give a damn one way or the other about the party label D, thy care about the ideological label P. And most of the incumbent you mention are in trouble partly because they pissed us off. Dodd is too close to Wall Street Conservatives, Specter isn’t really one of us, and Lincoln was a problem during the public option negotiations. The Colorado guy has never been elected to anything, and will probably be knocked off by one of our folks in the primary. Harry Reid just hasn’t been as strong a leader as many Progressives want. It’s not his fault, but it’s still a problem for him.

    Besides you’ve got a biased question there. The party would actually be better served by several of those primary opponents. Lincoln is unpopular and her opponent is the Lt. Governor. The CO guy’s not been elected to anything and his opponent is the Speaker of the State House. Specter’s opponent is a former Vice Admiral. Dodd’s in Connecticut.

    OTOH likely Democratic pickups are mostly open seats. Ohio went for Obama, and it’s open. Missouri’s a swing state. NH is open. We’ve got a shot in KY. NC’s GOP Senator has been so ineffective that most polls have his name recognition under 50%.

    In other words the Dem incumbent could lose all five seats Matthews mentioned, and make a two or three seat-net gain in the General.

    I freely admit that’s a long shot. But it’s just as likely as the GOP picking up all five seats Matthews mentioned.

  7. mw Says:

    “Keep in mind that no major Conservative legislation has ever gotten through Committee, passed the House, had 51 clear votes in the Senate, and been defeated by the filibuster. It just hasn’t happened. And it almost happened with the health care bill.” – nb

    I am a little unclear on your point here. Are you comparing legislation defeated by filibuster or legislation “almost” defeated by filibuster? You need to keep your apples and oranges straight.

    As to the rest – I said in the post I am sticking to my prognostication of a 2-3 seat pickup. I just don’t see this being the kind of “wave year” that Brownstein invokes unless the Dems crank up their corruption another notch or two before the election. It is always corruption that turns a political tide into a tsunami. While the blatant Democratic vote buying on Obamacare was pretty cynical and ugly, it still does not rise to the level of a Rostenkowski in ’94 or the Foley cover up by the Reps in ’06.

    Dems with shot at a gain??? NFW. But if you believe it, let me know if you want a piece of this action. I’ll leave the betting window open until the end of the year.

  8. Simon Says:

    MW – “Foley cover up by the Rep[ublican]s“? That one went right by me; what was covered up and by whom? Specifically, I mean, obviously we all remember the general outlines of the story.

  9. mw Says:

    @Simon
    I guess I could have used Abramoff or Hastert as an example, but the Foley mess occurred so close to the election, I think it had an outsized impact and helped crystallize attitudes about the corrupt one party Republican rule.

    As it happens, I can help you remember the specifics, but I’ll have to ask you to step into my wayback machine. To remember the gestalt at the time, listen to conservatives Scarborough and Smernikosh (sp) at about the 5 minute mark of the video I prepared and embedded in this October 2006 post.

  10. Simon Says:

    MW,
    I absolutely agree with you about Foleygate “crystalliz[ing] attitudes” – I said much the same thing two years ago. I don’t mean to dispute the facts or political valence of Foley’s actions. Rather, you charged that the Republican Party–nothing so abstract as “Republicans” or even “some Republicans,” but “the Rep[ublican]s”–in some manner covered up “Foley[gate],” and I’m asking you to substantiate that charge.

    The video in the post you linked doesn’t work.

  11. mw Says:

    Cripes. So if I change it from “the Reps” to “Reps” you’ll be happy?

  12. Simon Says:

    I’d still be curious to know who (tried to) cover up what, but obviously there’s a big difference between suggesting that a couple of bad apples took measures that the rest of the barrel would never have approved of, on the one hand, and suggesting that there was some kind of organized GOP attempt at a cover up. I don’t recall anything like the latter, and I find it hard to imagine that the party would have any desire to do so. The party of values would have nothing to lose by hanging Foley out to dry; if anything, it would be in their interests. There’s few things the voters like better than seeing a party willing to clean house.

  13. Nick Benjamin Says:

    @Simon
    IIRC several Republicans (including the guy who ran the age program, and Speaker Hastert) had been warned that Foley was flirting with male pages. Also that none of the pages enjoyed it.

    @mw

    I am a little unclear on your point here. Are you comparing legislation defeated by filibuster or legislation “almost” defeated by filibuster? You need to keep your apples and oranges straight.

    Either. My thesis is that Progressives shouldn’t protect the filibuster because it’s a tactic they never need.

    I can’t remember a single right-wing piece of legislation that got filibustered. I’ve brought this up several times, and the best anybody has come up with was the Social Security bill. He seemed to think a filibuster threat was the only reason Grassley hadn’t pushed it though Committee. My own feeling is that even if it got through Committee it would have had a devil of a time picking up 50 votes because it pissed off old people, and the GOP majority at the time was small and dependent on guys like Specter and Chafee.

    Dems with shot at a gain??? NFW. But if you believe it, let me know if you want a piece of this action. I’ll leave the betting window open until the end of the year.

    Look at it this way:
    We’ve had a terrible year. Nothing has gone as planned. And smart commentators are only talking about the loss of a single seat.

    Next year we’ve got one nasty debate (cap and trade), but it’ll probably be short. The economy will probably recover somewhat. This means our political fortunes are likely to rise.

  14. Nick Benjamin Says:

    Stupid Blockquotes.

  15. blackout Says:

    MADDOW: “Well, this has been a subject of frustration to people in both parties at different times and at different, more or less, convenient intervals…

    mw: Somebody once said something about the consequences of failing to learn the lessons of history. You might think Ezra and Rachel would learn something from the Republicans who were once so exercised by Senate filibusters, and who are now – less so.

    Clearly Maddow acknowledged that both parties have been frustrated by the filibuster. Pretty slack, mw…

  16. mw Says:

    @blackout

    Within the context of a piece that is dominated with Maddow primarily blaming the GOP for dramatically increasing the use and abuse of the filibuster (She even blames the payoff to Democratic Senator Nelson by the Democratic leadership for his vote on a Democratic bill on the minority GOP’s attempted filibuster). Within that context, I think this “acknowledgment” by me adequately encompassed Maddow’s “acknowledgment”:

    “To be fair, she does make a perfunctory mention of the Democrats use of the filibuster to block George W Bush judicial nominations.” – mw

  17. blackout Says:

    mw: So the focus of your piece is to criticize an MSNBC news personality for catering to a liberal viewpoint? How revelatory. I’ll be expecting your equally incisive take on FNC’s unfavorable coverage of Obama any day now…

  18. mw Says:

    @blackout

    Nooo….. The focus of my piece was to highlight what I perceive to be a short sighted view of some on the left regarding the filibuster rule. My intent was to point out the distinct and ironic possibility that, should they be successful, they will be making it possible for the GOP to repeal or gut ObamaCare with considerably less effort than it took to pass it (and – BTW- well before most of the benefits have kicked it).

    OTOH, the focus of my comment, was to respond directly to the specific criticism in your comment.

  19. blackout Says:

    mw: Right. And I’m looking forward to your piece on the exact same short-sightedness displayed by conservatives when their party has controlled the legislature, you know, the *frustration to people in both parties at different times and at different, more or less, convenient intervals…* to which Maddow refers. Otherwise this is simply a case of *conservative blogger disapproves of liberal commentator doing the same thing conservative commentators have done in the past*. That’s interesting why?

  20. mw Says:

    @blackout

    Almost missed this…

    “I’m looking forward to your piece on the exact same short-sightedness displayed by conservatives when their party has controlled the legislature…”- blackout

    Deserves – actually – demands a reply. First, as you know, there are differences between conservatives, Republicans, libertarians, or even the “libertarian leaning” as I consider myself. I’m not sure when the conservative’s “party” controlled the legislature, not in my memory. I assume you were just being a little sloppy with the labels, and you really meant Republicans.

    To address your point directly, there is no need to wait for some future piece from me. While I wasn’t blogging in 2005 when the “nuclear option” was being advocated by Frist and Republicans in the Senate, my view then was the same as now: it was short-sighted and wrong-headed. Probably the best I can do to document my perspective on that specific issue then, is point to more recent comments I’ve made on the Donk in defense of McCain’s role in defeating that GOP attack on the filibuster. One example linked here.

    However, if you are truly interested in the more general views of this particular “conservative blogger” when the Republicans did control both the executive and legislative branch as the Democrats do now, I’d invite you to peruse anything I wrote in 2006 when that situation existed and I was blogging actively.

    I’ve responded at length because I have a lot of respect for the tone and content of your comments at the Donk. Like Kranky, you often focus as much or more on the quality and nature of the debate as opposed to the content (or lack thereof) in the argument itself. I think that is great, and the two of you often help to keep the discussion on a more even keel around here. I also think you both bend over backward to criticize both sides of an argument as an end in itself. It is a fine approach to the Donklephant ethos – but it is not the only approach.

    I came to Donklephant with an agenda, and it has not changed. I find an enormous threat to freedom, and lot of extraordinarily bad governance happens when power is concentrated in a single party controlling the executive and both legislative branches – regardless of whether that party is the GOP in 2001-2006 or The Democrats now.

    As such, you’ll just have to excuse me if I don’t waste a lot of time finding things to criticize about a party as impotent and irrelevant as the GOP is today. The threat was with the GOP in 2001-2006. The threat resides in the Democratic Party today. They have all the power. They are the problem now.

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