Eliminate the Filibuster for Repeal of Legislation

 

It seems fairly obvious to me that the next time Democrats get into power they are more likely than not going to eliminate the filibuster completely. After all, their base will demand that the illegitimate Trump administration is negated completely, and there will be no action that is outside the realm of legitimacy.

My proposal would probably only last until the Democrats regain power, so in that respect the rational is more aspirational than practical, but here is the logic. It seems to me that if one is really for limited government, it should be much easier to get rid of legislation than it is to create it. This could have been done Constitutionally by creating something like a Congress of Repeal, who’s elected members only power is to repeal legislation, so instead of being a bunch of Lawmakers who feel their job is to make new laws (and thereby erode our liberties), these would be Laweliminators.

But another way to have a similar effect would be to make it far easier to repeal laws than it is to make laws inside the structure we currently have. Which is why I believe it is in the interest of Republicans and consistent with their philosophy to eliminate the filibuster in cases of repealing law. Think of it as an extension of Reconciliation, which I believe must be scored as reducing the deficit in order to be used. Something that only reduces the laws on the books could bypass the filibuster as well, but it would be allowed any number of times.

One is right to worry about the eventual elimination of the Filibuster and cautioning about being the ones to go first, but the Democrats always go first, and the Prisoner’s Dilemma advises that retribution must occasionally be wrought. Eliminating the Filibuster just for repeal would allow Republicans to assume the upper hand (for once), would be consistent with their philosophy, and would be good policy.

The Democrats are probably going to eliminate the filibuster completely their next time around no matter what, but allowing the repeal of laws without it could be both a legislative and political winner in the medium term.

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  1. Jager Coolidge
    Jager
    @Jager

    Mike H: Eliminating the Filibuster just for repeal would allow Republicans to assume the upper hand (for once), would be consistent with their philosophy, and would be good policy.

    I really wish Mr. McConnell would listen to you. I think this is a good idea, given where we are politically.

    • #1
  2. Pony Convertible Member
    Pony Convertible
    @PonyConvertible

    The Filibuster needs to be changed back to the way it used to be, which was, while a Filibuster is going on all other Senate work is stopped. Currently, all a Filibuster stops is work on the bill that is being Filibustered. Other bills can be debated, and voted on. Stopping everything puts more pressure on everyone to resolve the issue.

    • #2
  3. Rodin Member
    Rodin
    @Rodin

    Pony Convertible (View Comment):
    The Filibuster needs to be changed back to the way it used to be, which was, while a Filibuster is going on all other Senate work is stopped. Currently, all a Filibuster stops is work on the bill that is being Filibustered. Other bills can be debated, and voted on. Stopping everything puts more pressure on everyone to resolve the issue.

    Absolutely correct! The filibuster — if and to the extent it is permitted to exist — must be a nuclear device with high stakes for anyone who employs it. Otherwise eliminate it and implement the logical evolution of the Senate: Instead of a body two times removed from the passions of the electorate, it is a body whose connection to the passions of the electorate is attenuated only by a different combination of constituencies than those in the House.

    • #3
  4. Locke On Inactive
    Locke On
    @LockeOn

    Either the OP or Pony’s proposal would be an improvement on the status quo. This deserves to be on the Main Feed.

    • #4
  5. Poindexter Member
    Poindexter
    @Poindexter

    Pony Convertible (View Comment):
    The Filibuster needs to be changed back to the way it used to be,

    Make them talk. If they stop talking, the Filibuster is over.

    • #5
  6. Ann Inactive
    Ann
    @Ann

    Good idea.

    • #6
  7. ModEcon Inactive
    ModEcon
    @ModEcon

    Rodin (View Comment):

    Pony Convertible (View Comment):
    The Filibuster needs to be changed back to the way it used to be, which was, while a Filibuster is going on all other Senate work is stopped. Currently, all a Filibuster stops is work on the bill that is being Filibustered. Other bills can be debated, and voted on. Stopping everything puts more pressure on everyone to resolve the issue.

    Absolutely correct! The filibuster — if and to the extent it is permitted to exist — must be a nuclear device with high stakes for anyone who employs it.

    Yes, while the post presents a good idea, sort of (I mean that I like the idea and desire behind it, but am skeptical about the action). The current ideas of what the filibuster is are wrong. As the two quoted posts mention, the original idea is that congressmen actually have to talk (or read an encyclopedia) until others get the idea and think about the problem again. Additionally, the filibuster is also only good for a certain amount of time. It only guarantees each person two chances to talk, or something like that, before the debate part is automatically over, if I remember. After all, the threat of filibuster is now mostly about calling a bill to be voted on, not whether discussion is done or how many votes it needs to pass. Lacking a filibuster is only meant to ensure debate has a chance, not stop the process entirely.

    • #7
  8. Saint Augustine Member
    Saint Augustine
    @SaintAugustine

    I dig.

    Legalize health insurance. Repeal the bill banning it. It was always an unConstitutional law. Why let a Constitutional nicety like the filibuster option for this or for that stand in the way of . . . the Constitution?

    • #8
  9. Mark Camp Member
    Mark Camp
    @MarkCamp

    If the current structure of government is distorting the will of the people by artificially frustrating their desire to eliminate certain laws, then it’s a good idea. Unless we no longer want the will of the people to be made manifest in their laws.

    But is the will of the people actually being distorted? Or do the people just have a self-destructive desire for bad laws? Do they elect representatives who pass bad laws because they want bad laws, and ALSO elect representatives who don’t repeal bad laws…even after they’ve demonstrated in fact their folly…for the same reason?

    In the latter case I don’t know if it will address the problem. But it might, by partially frustrating the will of the people, assuming they no longer have any hope of recovering the will and capacity for self-government, given the state of civic education. The people might develop a tendency to accidentally elect good lawmakers, who currently are unable to thwart the will of the people by repealing bad laws due to some administrative, accidental bias in favor of passing laws, most of which are bad, over repealing them.

    • #9
  10. Spiral Inactive
    Spiral
    @HeavyWater

    If the 60 vote cloture rule were written into the US Constitution, it would be a different situation. Since it’s not, the filibuster will not survive the past the next time the Democrats control the White House, the US Senate and the US House.

    Over the past 25 years, both parties have talked about eliminating the filibuster either in some circumstances (presidential nominations) or completely.

    In 1995, Senator Tom Harkin (D-Iowa) proposed that on the first cloture vote, 60 votes should be required. On the second cloture vote on the same issue, only 57 votes would be required. On the third cloture vote, 54. On the fourth cloture vote, only 51.

    In 2003, when Democrats began filibustering several of President George W. Bush’s nominations to the federal court of appeals, Republicans began talking about eliminating the filibuster on presidential nominations while retaining the legislative filibuster (though the legislative filibuster does not exist for budget reconciliation legislation). In 2005, the Republicans came close to going nuclear until the Gang of 14 agreement managed to finesse the issue temporarily.

    In 2009 the Democrats began discussing getting rid of the legislative filibuster because they had 59 seats until Arlen Specter (Pennsylvania) switched parties. On September 21, 2013, Majority Leader Harry Reid dropped the nuclear option and the Senate confirmed his action by a 52 to 48 vote (with only 3 Democrat US Senators voting against their party).

    • #10
  11. Kozak Member
    Kozak
    @Kozak

    Mike H: This could have been done Constitutionally by creating something like a Congress of Repeal, who’s elected members only power is to repeal legislation, so instead of being a bunch of Lawmakers who feel their job is to make new laws (and thereby erode our liberties), these would be Laweliminators.

    It’s been done, Tribunes.

    The Roman magistrates whose only power was to Veto legislation.

    • #11
  12. The Reticulator Member
    The Reticulator
    @TheReticulator

    Spiral (View Comment):
    On September 21, 2013, Majority Leader Harry Reid dropped the nuclear option and the Senate confirmed his action by a 52 to 48 vote

    ???

    See, this talk of “going nuclear” is not only bad PR, but it confuses the issue.

    I’m not going to research it, but I suspect that the label “going nuclear” was first used by the Democrat/media machine when the Republicans threatened to remove the filibuster. Slapping the label “going nuclear” on it was a way to put a negative connotation on it, because most of the world is horrified by the prospect of nuclear bombs going off. Republicans, however, accepted the label, for two reasons:

    1. They watch far too much broadcast news, which makes them willing to to let the leftDemocrats frame the debates and provide the language used to discuss the issue.
    2. There are many Republicans who think it’s cool to blow things up in wartime, so the metaphor doesn’t have the same bad connotation for them. They are completely oblivious to the effect on public opinion, and don’t have the wit to use positive terms for themselves and negative terms for others like our Constitutional Founders did when they scored a quick propaganda coup by calling themselves “Federalists” and labeling the opposition the “anti-Federalists,” no matter that reversing the labels would have been just as appropriate.

    I don’t know that that is the history of the terminology, but being a cynical sort of person that is my suspicion.

    As I said earlier in this discussion, I recommend against using that terminology to describe this issue. And now it’s even worse than I thought, because talk of “dropping the nuclear option” is making the history hard to understand. I’m not sure if that means removing the filibuster or not removing the filibuster.

    • #12
  13. Spiral Inactive
    Spiral
    @HeavyWater

    The Reticulator (View Comment):

    Spiral (View Comment):
    On September 21, 2013, Majority Leader Harry Reid dropped the nuclear option and the Senate confirmed his action by a 52 to 48 vote

    ???

    See, this talk of “going nuclear” is not only bad PR, but it confuses the issue.

    I’m not going to research it, but I suspect that the label “going nuclear” was first used by the Democrat/media machine when the Republicans threatened to remove the filibuster. Slapping the label “going nuclear” on it was a way to put a negative connotation on it, because most of the world is horrified by the prospect of nuclear bombs going off.

    I don’t know when the term “nuclear option” was first used. But many people have called this “The Constitutional Option” because the Constitution gives each chamber of Congress the power to make its own rules.

    Rule 5 of the US Senate says that in order to end debate on a rules change, you need two-thirds of all Senators present and voting. This means approximately 67 Senators.

    Rule 22 of the US Senate says that in order to end debate on items other than a rules change, you need three-fifths of all Senators chosen and sworn. This means exactly 60 Senators.

    • #13
  14. Larry3435 Member
    Larry3435
    @Larry3435

    I like your idea, Mike, but if I had my druthers I would prefer that all legislation include a sunset clause of not longer than 20 years, so that it would expire unless it got extended by affirmative vote. And that vote itself would be subject to filibuster.

    • #14
  15. The Reticulator Member
    The Reticulator
    @TheReticulator

    Spiral (View Comment):
    I don’t know when the term “nuclear option” was first used. But many people have called this “The Constitutional Option” because the Constitution gives each chamber of Congress the power to make its own rules.

    Constitutional Option has a good connotation for me, at least!

    • #15
  16. Spiral Inactive
    Spiral
    @HeavyWater

    On September 21, 2013, Senate Majority Leader Harry Reid asked the Senate to reconsider its previous cloture vote on the nomination of Patricia Millett to the US Circuit Court of Appeals.

    At the time, the Democrats had a 55 to 45 seat majority in the Senate. Along with all 55 Democrats, two Republicans, Susan Collins and Lisa Murkowski, supported ending debate on the Millett nomination.

    So the cloture vote was 57 to 43, which means the Senate lacked the 60 votes required to end debate.

    If you click on the link below and get past discussions regarding sanctions on Iran, you will see where Harry Reid asked the Senate to use the Nuclear/Constitutional Option.

    Congressional Record 2013 Sep 21

    The vote was 52 to 48 in favor of changing Senate precedent.

    Here is a Stanford Law Review article on how 52 senators made 60 into 51

    • #16
  17. Mike H Coolidge
    Mike H
    @MikeH

    The Reticulator (View Comment):

    Spiral (View Comment):
    I don’t know when the term “nuclear option” was first used. But many people have called this “The Constitutional Option” because the Constitution gives each chamber of Congress the power to make its own rules.

    Constitutional Option has a good connotation for me, at least!

    If you want to get in good with the Median Voter, something like “Democratic Option” would probably be best.

    • #17
  18. Mendel Member
    Mendel
    @Mendel

    A nice idea, but won’t work in practice for two reasons:

    1. How do you define whether a proposed bill is a “repeal” or not? Most laws are messier than that. Take, for example, the now-failed AHCA: it repealed specific clauses/sections of the PPACA, but added new laws of its own. Either a complex set of rules would have to be developed to determine whether a bill constitutes a “repeal”, or the Parliamentarian, an unelected technocrat, would gain even more power. And no matter what, Democrats would find a way to game the system.
    2. The filibuster is not the reason we have difficulty repealing laws. The reason we can’t repeal laws is because the Republicans don’t want to. And the reason they don’t want to is because enough of them rely on moderates to stay in office, and they’re afraid that those moderates will vote them out of office if they vote down the social welfare programs those moderates like.

    Remember, at the end of the day the filibuster serves just as much as a smokescreen for a governing party that doesn’t want to govern as it does a veto for the opposition party. Eliminating the filibuster, even just on “repeal” bills, won’t make those repeals any more politically palatable to moderate Republicans – they’ll just have to find another way to sabotage those bills without leaving their fingerprints.

    • #18
  19. David Carroll Thatcher
    David Carroll
    @DavidCarroll

    Love this idea. Somebody tell Mitch McConnell. Oh wait, repeal of anything does not seem to be a Senate leadership goal.

    • #19
  20. Rodin Member
    Rodin
    @Rodin

    Spiral (View Comment):
    Here is a Stanford Law Review article on how 52 senators made 60 into 51

    You cannot read the Stanford article without being reminded of exactly what kind of [redacted] Harry Reid and Tom Daschle are.

    • #20
  21. Trinity Waters Inactive
    Trinity Waters
    @TrinityWaters

    Eliminate the filibuster entirely until the 17th amendment is repealed.

    • #21

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