Hugh Hewitt: Kill the Filibuster

 

Well, knock me over with a feather. It appears that Speaker John Boehner is showing some spine. A few months ago, the GOP developed a plan in response to Obama’s unconstitutional executive amnesty: Fund the rest of the government, then pass a separate spending bill for the Department of Homeland Security that would deny Obama the funds to implement his amnesty. The House did their part, and passed the bill. Now, as expected, Senate Democrats are filibustering it. What is a pleasant surprise is that the House leadership is standing firm, in the face of inconstant Senate GOP leadership and hostile media coverage.

So how to overcome the opposition? Hugh Hewitt argues that Republicans should follow in Harry Reid’s footsteps, and eliminate the filibuster. He writes:

“What’s more important, the Constitution or the filibuster?” is the rhetorical question being posed by key House conservatives led by the very able Raul Labrador. If you believe the president’s actions on immigration are actually unconstitutional, then Labrador’s framing is exactly right.  Senate traditionalists will argue that the Senate is the Senate because of its 60 vote rule, but of course (1) there is no 60 vote rule in Madison’s design, (2) Harry Reid smashed the 60 vote rule anyway and (3) the left has spent years pointing that out and many Senate Democrats are on record in favor of invoking the Reid Rule again and again to clear away the remains of the filibuster that Reid did not already wreck.

The prospect of an epic and continuing clash between a Republican Congress sending bill after bill over to the president on matters large and small and the president vetoing them all would set up a choice for the country on 2016 that is both fundamental and necessary.  Senators recoil from losing their minority rights, but as former Missouri Senator Jim Talent said on my show Tuesday, the country needs a lot of legislation passed if it is to be righted, a lot of legislation that won’t get 60 votes, so now may be the time to reform the Senate for the new millennium, and increase the speed of legislative action.

I think it’s a pipe dream — Mitch McConnell, the Republican who did the most to undermine House Republicans in the last government shutdown, will stand for Senate prerogatives now and forever, even as Reid and Obama hack the constitutional order to win their policy objectives.

But, on the merits, is it a good idea?

This is a choice between something bad and something worse. Obama’s executive overreach threatens irrevocable damage to the constitutional order. The constitutional remedy, impeachment, has been taken off the table. So which is worse — to allow Obama to shred the constitution, or to eliminate a longstanding extraconstitutional tradition? It seems clear to me: The GOP should not let fear of second-order effects stand in the way of addressing an urgent first-order problem.

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  1. skipsul Inactive
    skipsul
    @skipsul

    “Rule of Law” only continues to work with all parties involved respect the law in the first place.  When one side attempts to act unilaterally, or when one party actively attempts to break the law, the game is already over.

    Imagine a chess match where your opponent, after being put in check, announces that his king can now move with the independence of a queen – can you reasonably continue the game at that point?  If there is no officiating to make your opponent abide by the rules your game is effectively over.  Either you must cheat back or walk away.

    Walking away is not a viable option, however, and the officiating is on the take.

    Obama and the Dems have cheated often now, their contempt for the system is obvious to anyone who cares to notice.  The Constitution is largely a dead letter at this point.  Ignore the filibuster and go for the throat – worry about restoring order later.

    • #1
  2. skipsul Inactive
    skipsul
    @skipsul

    History is replete with examples of governments breaking centuries old compacts – the ones who lose out are the ones who still attempt to enforce the old rules without having the swords to do so.  Learn when the game is over and either overthrow the tyrant or assert some new found (or long dormant) powers of your own.

    • #2
  3. Mike H Coolidge
    Mike H
    @MikeH

    The Democrats will eliminate it when it benefits them enough anyway. I question whether restoring the old order is possible, even now. I also question removing the filibuster will do anything to change the overall trajectory of the country, except make the fluctuations more noisy.

    I do wish this battle was being fought on more concrete moral grounds, like eliminating Obamacare, instead of an abstract legal disagreement.

    • #3
  4. Jager Coolidge
    Jager
    @Jager

    Mike H:The Democrats will eliminate it when it benefits them enough anyway. I question whether restoring the old order is possible, even now. I also question removing the filibuster will do anything to change the overall trajectory of the country, except make the fluctuations more noisy.

    I do wish this battle was being fought on more concrete moral grounds, like eliminating Obamacare, instead of an abstract legal disagreement.

    I completely agree. Once Reid “modified” the filibuster I thought it would be further eliminated the next time the Democrats needed to pass some law.

    You may not like the underlying issue that this leading to this change, but it allows for a change in the fight on other issues, like Obamacare.

    • #4
  5. user_82762 Thatcher
    user_82762
    @JamesGawron

    skipsul:“Rule of Law” only continues to work with all parties involved respect the law in the first place. When one side attempts to act unilaterally, or when one party actively attempts to break the law, the game is already over.

    Imagine a chess match where your opponent, after being put in check, announces that his king can now move with the independence of a queen – can you reasonably continue the game at that point? If there is no officiating to make your opponent abide by the rules your game is effectively over. Either you must cheat back or walk away.

    Walking away is not a viable option, however, and the officiating is on the take.

    Obama and the Dems have cheated often now, their contempt for the system is obvious to anyone who cares to notice. The Constitution is largely a dead letter at this point. Ignore the filibuster and go for the throat – worry about restoring order later.

    Skip,

    I am inclined to accept your analysis. Republicans can announce that they intend to play by Harry Reid’s rules until February 2016. At that point they will reconsider the filibuster rule.

    Give them a dose of their own medicine. They’ve earned it big time.

    Regards,

    Jim

    • #5
  6. Devereaux Inactive
    Devereaux
    @Devereaux

    A “filibuster” is a speaking to keep debate open so as not to bring an issue to vote. It is only remotely related to today’s process by the fact that when a group of elected officials decide to “filibuster” then the continued debate can only be stopped if the officials stop OR a 60 vote measure to invoke “cloture” is taken. I believe the democrats SHOULD be made to actually FILIBUSTER – if you are going to invoke that gambit. Have Schumer stand hour after hour speaking. I, for one, would love to see it.

    But this current “rule” is not filibustering – or anything else than requiring 60 votes to pass ANYTHING. I don’t believe that is in the constitution.

    • #6
  7. user_129539 Member
    user_129539
    @BrianClendinen

    What is so great about the fillibuster anyways. I can understand actually wanting enough discussion and time to read a law, and a filibuster is a good way to stop laws from being rammed though. However, it is already so hard to get anything done on the legislative side in Washington (which in some ways is a feature), we really need to add more red tape why?  Under the two track system why not put a three month limit on the filibuster. That way the minority has a time to analysis the law or nomination and do their PR but the majority still gets its way if they really want it.

    • #7
  8. Devereaux Inactive
    Devereaux
    @Devereaux

    Being uneducated on all the Senate rules, ?isn’t there an exemption from the silly 60 vote rule for budget issues. Somehow I seem to recollect that.

    • #8
  9. user_353507 Member
    user_353507
    @RonSelander

    “The GOP should not let fear of second-order effects stand in the way of addressing an urgent first-order problem.’

    Like!

    • #9
  10. Frozen Chosen Inactive
    Frozen Chosen
    @FrozenChosen

    I thought Harry Reid used the nuclear option to get what he wants?  Why are we even arguing about this?

    • #10
  11. user_348375 Inactive
    user_348375
    @TrinityWaters

    Why is it a big deal to let the Dems block DHS funding?  Not like the republic will burn down.  Let them continue to filibuster it until the cows come home.  How could the media possibly spin that as the conservatives’ fault?  So, Harry Reid and his fellow travelers are “my way or the highway” and we should cave, especially on an issue with constitutional principles involved?   The tables are turned now, and the Dems with Obama will be the ones shutting down (a minor part of) DHS.  Return to sentence one; rinse & repeat.

    • #11
  12. user_129440 Member
    user_129440
    @JackRichman

    Marquess of Queensberry rules do not apply when opponents engage in bare-knuckled street brawls. The Democrats will do anything and bribe anyone to advance their agenda. Republicans should take off their gloves and repeal the filibuster for at least as long as it takes enact legislation seeking to restore traditional checks and balances.

    Doing so will have a salutary effect, anticipated presidential vetoes notwithstanding. It will signal to Democratic senators that their Republican counterparts will not disarm unilaterally, however distasteful it is to them to follow the Democratic example. The Constitution is not a suicide pact – and neither are the filibuster rules.

    • #12
  13. Bryan G. Stephens Thatcher
    Bryan G. Stephens
    @BryanGStephens

    skipsul:“Rule of Law” only continues to work with all parties involved respect the law in the first place. When one side attempts to act unilaterally, or when one party actively attempts to break the law, the game is already over.

    Imagine a chess match where your opponent, after being put in check, announces that his king can now move with the independence of a queen – can you reasonably continue the game at that point? If there is no officiating to make your opponent abide by the rules your game is effectively over. Either you must cheat back or walk away.

    Walking away is not a viable option, however, and the officiating is on the take.

    Obama and the Dems have cheated often now, their contempt for the system is obvious to anyone who cares to notice. The Constitution is largely a dead letter at this point. Ignore the filibuster and go for the throat – worry about restoring order later.

    This nails it. The GOP cannot continue to assume the Dems care about what is best for the Country. Then again, maybe most of the leadership of the GOP does not either. It is only what is best for their good old boys (and gals) club

    • #13
  14. user_989419 Inactive
    user_989419
    @ProbableCause

    John Hinderaker agrees that the media is blaming the House Republicans.

    Since the media won’t admit that there is a Democrat filibuster happening in the Senate, then the Senate Republicans should change the rules, bypass the filibuster and pass the House bill.

    This would put the media in a bind.

    • #14
  15. Barfly Member
    Barfly
    @Barfly

    The Senate is the Senate because it is Constituted of two Senators per state, regardless of population or size, and because Senators serve for six years, which  guarantees each Senator will sit during (at least) two presidential and three House terms.

    The filibuster is a stain on the fabric of the Republic.

    • #15
  16. Mendel Inactive
    Mendel
    @Mendel

    I’ve always thought the filibuster was secretly a benefit to the majority party, and this case seems to be another example.

    Mitch McConnell is in a bind: the base of his party (both in Kentucky and in the Senate) want to pass this bill, but his sugar daddies and a few swing voters don’t. One of the difficulties of being the majority party is having to come down on one side or the other of such wedge issues – but the filibuster provides a cop-out: it allows all of the Senators in the majority party to vote in line with the base, while giving their elite friends the wink-and-nod that they can rest assured the bill will never actually pass.

    I think it’s telling that the majority party has always had the power to rescind the filibuster at any time and yet never has, even though this would seem to work to the majority party’s advantage. I fully expect McConnell to continue this trend of feigned powerlessness.

    • #16
  17. Mendel Inactive
    Mendel
    @Mendel

    I must say though that I have little patience for conservative arguments against the filibuster.

    During the period the Republicans were the minority in the Senate, magazines like National Review and discussions on Ricochet were full of soliloquies praising the sanctity of the filibuster, saying it was in line with the spirit of the Constitution and necessary to block overzealous legislation.

    Then the Republicans re-took the Senate, and it wasn’t two months before conservatives start calling for it to be rescinded.

    I have no love for the filibuster. It is not so much a throttle on the legislative process as a brick wall. But I also have no sympathy for “principled” conservative arguments against the filibuster suddenly popping up after eight years of “principled” conservative arguments in favor of it.

    When it comes to issues of process, both movements’ immediate interests always outweigh first principles. Let’s not pretend otherwise.

    • #17
  18. Lensman Inactive
    Lensman
    @Lensman

    The filibuster occurred only because of a (at the time) non-controversial change in the Senate Rules in 1806 that was urged upon them by Vice President Aaron Burr (as President of the Senate). Yes, that is the Aaron Burr who was indicted for murdering Alexander Hamilton in 1805. (He beat the rap.)

    I’ve embedded a link above to the testimony of a Brookings Institute scholar (few conservatives over there) who pointed out that even after removing the “move the previous question motion” from the Senate Rules for the next 75 years the filibuster was not used to block Senate proceedings.

    So Sen. Mitch McConnell is refusing to preserve and defend the Constitution if he insists on preserving the filibuster in the Senate. At the very least the Republicans could trim it back by requiring a simple majority when a spending bill is being considered (to include budget, authorization and appropriations bills).

    I don’t see any reason to allow a reactionary minority to preserve left wing legislation that they succeeded in passing when they had a temporary majority and a President of the same party or a President who refused to abide by his oath to preserve and defend the Constitution (e.g. George W. Bush failing to veto the McCain-Feingold campaign finance bill when he admitted he thought it was unconstitutional).

    • #18
  19. Lensman Inactive
    Lensman
    @Lensman

    Mendel:I’ve always thought the filibuster was secretly a benefit to the majority party, and this case seems to be another example.

    I think it’s telling that the majority party has always had the power to rescind the filibuster at any time and yet never has, even though this would seem to work to the majority party’s advantage. I fully expect McConnell to continue this trend of feigned powerlessness.

    Excellent point. Not just the majority party, but practically all Senators can avoid accountability to the voters when it comes time to vote on controversial matters, such as rolling back truly foolish legislation. They just vote Yes on the cloture motion and then brag to their voters about how they voted No when the bill came up for a vote. On the flip side of the case, when a minority of 41 is preventing cloture on even the motion to proceed on a reform bill, every Senator who promised that reform is off the hook.

    The end result is preservation of the status quo which, for the past 80 years has been the erection of a left-wing regulatory state that has practically no resemblance to the constitutional (limited) government we were supposed to get after 1787. The ratchet effect (see Margaret Thatcher) of bigger and bigger central government with no retrograde movement to roll back such means we never can truly reform Washington.

    Unfortunately for the Republicans the news media always writes “The Republicans control the Senate” when there is a less than 60 vote majority in the Senate. They succeed in making the Republicans politically accountable and the foolish Republican leadership accepts that proposition without ever seizing the power that would truly give them control. Thus they have the worst of both worlds.

    • #19
  20. Son of Spengler Contributor
    Son of Spengler
    @SonofSpengler

    Mendel:I must say though that I have little patience for conservative arguments against the filibuster.

    During the period the Republicans were the minority in the Senate, magazines like National Review and discussions on Ricochet were full of soliloquies praising the sanctity of the filibuster, saying it was in line with the spirit of the Constitution and necessary to block overzealous legislation.

    Then the Republicans re-took the Senate, and it wasn’t two months before conservatives start calling for it to be rescinded.

    I have no love for the filibuster. It is not so much a throttle on the legislative process as a brick wall. But I also have no sympathy for “principled” conservative arguments against the filibuster suddenly popping up after eight years of “principled” conservative arguments in favor of it.

    When it comes to issues of process, both movements’ immediate interests always outweigh first principles. Let’s not pretend otherwise.

    Mendel, do you believe that Obama’s approach to governance is comparable to past presidents’?

    I don’t think Republicans ever argued that the filibuster was essential; they argued that it was a good idea. But like any other good idea, it needs to be evaluated in context and weighed against other good ideas. The GOP arguments for doing away with the filibuster acknowledge that doing so will have a significant downside. (An acknowledgement the Dems never made.) But they believe that Obama’s unprecedented lawlessness has made the cost of not doing so even greater.

    • #20
  21. Mendel Inactive
    Mendel
    @Mendel

    Son of Spengler:

    Mendel:

    I don’t think Republicans ever argued that the filibuster was essential; they argued that it was a good idea. But like any other good idea, it needs to be evaluated in context and weighed against other good ideas.

    It’s not that I dispute this argument; it’s that I have a hard time believing that conservatives (as a group) actually take these principles seriously when they only trot them out once Republicans control the Senate. Back when Democrats were in charge, most conservative arguments I read lacked the nuance of your statement above.

    I also don’t think it’s a huge deal. Human nature almost always favors the ends over the means, and as a species we’ve managed to come pretty far with that trait. I just think we should own up to the bias.

    Let me also acknowledge that I am grouping “conservatives” together as if they were a unified group of thinkers when we know that is not the case. However, my point still stands: if some conservatives have always though there to be situations when the filibuster should be thrown out for good governance reasons, why didn’t those commentators make that opinion heard when Democrats held the Senate?

    • #21
  22. Mendel Inactive
    Mendel
    @Mendel

    Son of Spengler:

    Mendel:

    Mendel, do you believe that Obama’s approach to governance is comparable to past presidents’?

    On a more substantive level, I also think there is a pitfall to this approach.

    I certainly agree that Obama has pushed the envelope with regard to executive power. However, his expansion of power has been calculated: a number of conservative legal experts admit that the amnesty was structured in such a way as to put it in a legal gray area, as opposed to being a black-and-white unconstitutional action.

    In other words, the determination that Obama has acted and continues to act unconstitutionally is a subjective one. The question is then: whose opinion is authoritative when it comes to constitutionality? In the current case, it is the majority party in the Senate.

    And here’s my problem: going back decades, the non-presidential party has always found the sitting president to be acting unconstitutionally – certainly the case with Democrats vs. GW Bush. I’m not sure I want to usher in an era in which the opposition party is constantly taking unprecedented measures in the name of the president’s blatant disregard for the constitution.

    I still would have little problem if the filibuster were abolished – I’m more concerned about how that abolition gets framed.

    • #22
  23. Son of Spengler Contributor
    Son of Spengler
    @SonofSpengler

    Mendel, there weren’t many of us, but when Reid eliminated he filibuster for judicial nominees we did try to make our voices heard. We pointed out that when Bush tried to do the same, the GOP called it “the constitutional option”, and for good reason. (At the time, Dems dubbed it the “nuclear option”. McCain assembled one of his Gangs and they compromised by rejecting Bush’s most conservative nominees and approving the rest.) If Ricochet’s search function were better, I would link to examples. I do realize, though, that we were in a vanishingly small minority.

    Regardless, Dems couched their defense of the filibuster in terms of the sanctity of tradition, whereas Republicans couched their arguments in terms of the wisdom of respecting minority views. As a result, Dems have been flaming hypocrites on the issue — what was sacred became disposable overnight. OTOH, Republicans have appealed to prudence, so they can be said to maintain coherent principles insofar as what is prudent can change depending on the situation.

    • #23
  24. Mendel Inactive
    Mendel
    @Mendel

    Son of Spengler:Mendel, there weren’t many of us, but when Reid eliminated he filibuster for judicial nominees we did try to make our voices heard.

    I will also readily acknowledge that I hold conservatives (with whom I agree much more often) to a higher standard than liberals. But it was ingrained in me throughout my scientific training that one should be most stringent with that which one champions, in order to strengthen it even more, and I tend to apply that rule throughout life.

    Regardless, Dems couched their defense of the filibuster in terms of the sanctity of tradition, whereas Republicans couched their arguments in terms of the wisdom of respecting minority views.

    Be that as it may, I still think the driving force for the vast majority of interlocutors on both sides was immediate political interest, with principled explanations being nice post hoc window dressing.

    I find that conservatives do indeed tend to practice their principles somewhat more often, and that their principles are certainly much better thought-out than liberals’. However, when it comes to handling matters of “process”, I view the differences in character between the two sides to be one of degrees, not of kind. And I realize that probably puts me in a minority of one on this site.

    • #24
  25. user_428379 Thatcher
    user_428379
    @AlSparks

    Mendel:

    I must say though that I have little patience for conservative arguments against the filibuster.

    During the period the Republicans were the minority in the Senate, magazines like National Review and discussions on Ricochet were full of soliloquies praising the sanctity of the filibuster, saying it was in line with the spirit of the Constitution and necessary to block overzealous legislation.

    I was against the filibuster before I was for it, back in the 1970’s when I was a teenager.  National Review argued me out of it.

    So I’ll give practical reason against it.  NR’s argument was that the filibuster was a good thing because it slowed the growth of government.  And I think that it’s still NR’s stance.  But now the only practical way to restrain government, where an administrative state has gotten out of control, is to actually pass statutes limiting agencies like the FAA, FCC, EPA, and the EPA, all of whom have increased their powers beyond their original charter without benefit of specific statutes mandating they do.

    One of the perverse effects of the filibuster is that the Senate will often pass only vague legislation that ends up having to be interpreted by the courts or the administrative state, increasing their powers.

    As for the “What’s more important…” argument, I’ve never heard it phrased that way.  But I agree.

    • #25
  26. Mendel Inactive
    Mendel
    @Mendel

    Al Sparks:

    One of the perverse effects of the filibuster is that the Senate will often pass only vague legislation that ends up having to be interpreted by the courts or the administrative state, increasing their powers.

    Indeed. But I think it goes even further.

    It is absolutely desirable to slow down the legislative process, but how that speed is throttled is important. I imagine a car going down a steep hill: one can use the brakes, which abruptly and haltingly slow down the car but will eventually fail, or one can shift into low gear and lower the speed consistently and sustainably.

    Our constitution inserted a “motor brake” into the legislative process by mandating that Senators be elected by state legislatures and the president be elected by indirect Electors or even the Representatives. Those constituencies are not as likely to demand the expensive instant-gratification goodies that de Tocqueville warned about.

    Perhaps the filibuster was a necessary compensation for our shift away from indirect elections. But like that heavy car, popular electorates demand immediate results, and when the filibuster prevents Congress from enacting their will, they naturally look to the president to carry it out.

    • #26
  27. Son of Spengler Contributor
    Son of Spengler
    @SonofSpengler

    I have to say I’m surprised by the dearth of pro-filibuster sentiment here on Ricochet.

    • #27
  28. DocJay Inactive
    DocJay
    @DocJay

    Nice. Let this garbage end now. Amnesty is as good a reason as any to check this wannabe king.

    • #28
  29. Mendel Inactive
    Mendel
    @Mendel

    Son of Spengler: the GOP developed a plan in response to Obama’s unconstitutional executive amnesty: Fund the rest of the government, then pass a separate spending bill for the Department of Homeland Security that would deny Obama the funds to implement his amnesty.

    Slightly off-topic, but it’s worth remembering that Obama’s amnesty is not funded through appropriations. That means that even if DHS funding isn’t passed, the amnesty will still actually be funded. This is analogous to the shutdown in 2013 to protest Obamacare, in which everything in the government was shut down except….Obamacare.

    Since the amnesty is not directly dependent on DHS appropriations, Republicans could have just as easily picked any other agency not to fund. And it would have been much wiser if they had chosen a few non-essential liberal departments like Education and HUD and walk away. There’s too much political pressure to keep DHS unfunded for more than a few days, but they could have remained firm on not funding some of the lesser agencies to the point where those agencies start to lose their long-term viability.

    • #29
  30. skipsul Inactive
    skipsul
    @skipsul

    Mendel:

    Son of Spengler: the GOP developed a plan in response to Obama’s unconstitutional executive amnesty: Fund the rest of the government, then pass a separate spending bill for the Department of Homeland Security that would deny Obama the funds to implement his amnesty.

    Slightly off-topic, but it’s worth remembering that Obama’s amnesty is not funded through appropriations. That means that even if DHS funding isn’t passed, the amnesty will still actually be funded. This is analogous to the shutdown in 2013 to protest Obamacare, in which everything in the government was shut down except….Obamacare.

    Since the amnesty is not directly dependent on DHS appropriations, Republicans could have just as easily picked any other agency not to fund. And it would have been much wiser if they had chosen a few non-essential liberal departments like Education and HUD and walk away. There’s too much political pressure to keep DHS unfunded for more than a few days, but they could have remained firm on not funding some of the lesser agencies to the point where those agencies start to lose their long-term viability.

    Won’t happen though – too many pet projects and kickbacks in those agencies.

    • #30

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