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20 January 2010

Crisis for Obama as Democrats lose Massachusetts

Time to get some balls -- and get rid of the filibuster rule

By Mehdi Hasan

Here’s the top news story on the New Statesman website:

The Republicans have pulled off a shock victory by winning the Massachusetts Senate seat left vacant by the Democrat Ted Kennedy’s death.

The result, in what is usually one of the safest Democratic seats in the country, is a severe blow to Barack Obama’s presidency and throws into doubt the future of his health-care reform plan. The defeat robs the Democrats of the 60-seat “super-majority” that allows them to overcome Republican filibusters in the 100-member US Senate.

The Republican candidate, Scott Brown, beat Martha Coakley, the state attorney general, who had expected to inherit the seat, by 52 per cent to 47 per cent. In his victory speech he promised to use his Senate vote to defeat the Democrats’ health-care reform.

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So is this a full-blown crisis for Obama and the Dems? Have health-care reform plans been derailed by this Republican victory? Can the governing party survive without its “super-majority”?

Perhaps. But there’s a simple solution at hand: get rid of the anachronistic and undemocratic idea of a super-majority. Abolish the filibuster rule. End the tyranny of (in this instance) the Republican minority. Even after the shocking (and shameful) defeat in Massachusetts, the Democrats have a clear majority in the Senate and in the House. So why this obsession with a super-majority? Or with the filibuster, which appears nowhere in the US constitution?

Here’s James Fallows’s take in the Atlantic Monthly:

Of course, the number of votes the Democrats need to pass their bill is a simple majority — 51 votes at most. (“At most” because a 50-50 tie would be broken by the vice-president, who of course is now a Democrat.) The reason we talk and act as if “majority” = “60 votes” is that in the past 25 years, something that was an exceptional, last-ditch measure has turned into a damaging routine.

Or as the lawyer Thomas Geoghegan wrote in the New York Times last week:

The founders . . . were dead set against supermajorities as a general rule, and the ever-present filibuster threat has made the Senate a more extreme check on the popular will than they ever intended.

This change to the Constitution was not the result of, say, a formal amendment, but a procedural rule adopted in 1975: a revision of Senate Rule 22, which was the old cloture rule. Before 1975, it took two-thirds of the Senate to end a filibuster, but it was the “Mr Smith Goes to Washington” filibuster: if senators wanted to stop a vote, they had to bring in the cots and the coffee and read from Grandma’s recipe for chicken soup until, unshaven, they keeled over from their own rhetorical exhaust.

For the record, nothing like Senate Rule 22 appears in the Constitution, nor was there unlimited debate until Vice-President Aaron Burr presided over the Senate in the early 1800s. In 1917, after a century of chaos, the Senate put in the old Rule 22 to stop unlimited filibusters. Because it was about stopping real, often distressing, floor debate, one might have been able to defend that rule under Article I, Section 5 of the Constitution, which says, “Each house may determine the rule of its proceedings.”

As revised in 1975, Senate Rule 22 seemed to be an improvement: it required 60 senators, not 67, to stop floor debate. But there also came a significant change in de facto Senate practice: to maintain a filibuster, senators no longer had to keep talking. Nowadays, they don’t even have to start; they just say they will, and that’s enough. Senators need not be on the floor at all. They can be at home watching Jimmy Stewart on cable. Senate Rule 22 now exists to cut off what are ghost filibusters, disembodied debates.

The filibuster has been used and abused by obstructionist Republicans intent on thwarting and undermining President Obama’s modest, incrementalist agenda. In fact, they used the filibuster twice as much last year as the minority party has ever used it in the history of the Senate — a trend that will undoubtedly continue in 2010.

Despite claiming to be the home of democracy, the much-admired US system of government has become, in the words of Paul Krugman, “dysfunctional”. It doesn’t work. It’s undemocratic and prone to paralysis. Paul Krugman writes:

Some people will say that it has always been this way, and that we’ve managed so far. But it wasn’t always like this. Yes, there were filibusters in the past — most notably by segregationists trying to block civil rights legislation. But the modern system, in which the minority party uses the threat of a filibuster to block every bill it doesn’t like, is a recent creation.

The political scientist Barbara Sinclair has done the maths. In the 1960s, she finds, “extended-debate-related problems” — threatened or actual filibusters — affected only 8 per cent of major legislation. By the 1980s, that had risen to 27 per cent. But after Democrats retook control of Congress in 2006 and Republicans found themselves in the minority, it soared to 70 per cent.

Or as the former senator (now vice-president) Joe Biden said at a Florida fundraiser on Sunday:

As long as I have served . . . I’ve never seen, as my uncle once said, the constitution stood on its head as they’ve done. This is the first time every single solitary decision has required 60 senators . . . No democracy has survived needing a supermajority.

So what is to be done? Is there a solution? Yes, but it requires boldness and confidence on the part of Obama and the Senate Democrats. From the Think Progress blog:

Biden and his former Senate colleagues are not powerless against this expansion of the filibuster, however. Every two years, when the Senate’s newly elected members take their seats, a brief window opens up allowing 51 senators (or 50 senators plus the vice-president) to eliminate the filibuster by simple majority vote. If the vice-president is determined to end the era of right-wing obstructionism, all he has to do is whip up 50 votes.

“All he has to”? Easier said than done! The Democrats, unlike the Republicans, defer to authority, to tradition, to conventional wisdom and establishment advice. That’s why so many Democrats have already given up on health-care reform in the wake of the Massachusetts defeat.

Here’s the New Republic’s Jonathan Chait:

The difference between the parties is that Republicans ignore the establishment’s advice. After Obama’s election, conventional wisdom insisted that the GOP would have to move to the centre. Instead the party moved further right. And whatever the policy merits, it has worked politically. If Republicans had co-operated more with Obama, it would have given him bipartisan accomplishments and made him even more popular.

The GOP’s ability to ignore establishment nostrums in the face of defeat is its great electoral strength. Democrats, by contrast, have a congenital tendency to panic. Abandoning health-care reform after they’ve already paid whatever political cost that comes from voting for it in both houses would be suicide.

Don’t panic, says Chait. But I suspect they will. The Daily Show’s Jon Stewart ridiculed this defeatist mindset among Democrats prior to Coakley’s loss in Massachusetts:

If this lady loses, the health-care reform bill that the beloved late senator considered his legacy will die. And the reason it will die . . . is [that] if Coakley loses, Democrats will only have an eight-vote majority in the Senate, which is more than George W Bush ever had in the Senate when he did whatever the fuck he wanted to.

Stewart concluded:

It’s not that the Democrats are playing checkers and the Republicans are playing chess. It’s that the Republicans are playing chess and the Democrats are in the nurse’s office because once again they glued their balls to their thighs.