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As the country heads into the final stretch before the latest presidential election as well as the contentious nomination of a Supreme Court justice, one cannot help but reflect upon the norms and structures that are features in the American government. And it is not just within the two aforementioned bodies-- from the Executive Branch, to the Judicial Branch,  to the Legislative Branch, what, if anything is but a relic of the past? 

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This debate will center on one such relic that has come into question-the filibuster. Iconized in popular culture by the 1939 film  Mr. Smith Goes to Washington, modern critics deem it to be a legislative tactic that has only hampered the ability of Congress to do its duty. This debate will discuss whether it is time to reform it. 

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The debaters are Markus Dazkal , arguing in favor of the motion and Daniel Bocic Martinez, arguing against. For some brief introductions:  

Markus Dazkal

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Markus grew up in the Bronx, NY and went to CCNY, graduating in 1973. He became active in politics in the early 1970s as he was deeply involved in the movement against the war in Vietnam. He has worked in the computer field since 1980, and has been a project manager for many years.   He has remained active in progressive politics since that time and works to help Democrats win at all levels of government – local, state and Presidential each election cycle.  His ideals have not changed since he was much younger, but his appreciation of the nature of our political system and the need (as he sees it) to not let the perfect be the enemy of the good has developed over a long period of political engagement.  Bottom line, he believes it is better to light a candle than to curse the darkness.

 

Daniel Bocic Martinez 

 

Daniel is a first generation US citizen whose parents moved to the United States from Chile during the dictatorship. He graduated from University of San Diego with a B.A. in Psychology with a minor in Philosophy in 2006. He graduated from University of San Diego School of Law in 2009 and had been an active member of the State Bar of California since December of 2009. 

 

Presently, he works as a Criminal Defense attorney and has been a campaign consultant for a Democratic Presidential candidate in the 2020 Democratic primary as well as consulted with 3 Congressional campaigns of both parties.

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This discussion took place off site via Facebook Messenger. The entirety is posted below. Please read on for a very nuanced and relevant debate

 

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Opening Statements

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Markus: 

 

1)    BACKGROUND ON THE FILIBUSTER

Firstly, let’s start off with a little bit of background on what the filibuster is and how it evolved into its current state. I will use Wikipedia as a resource for this, and details are below.  

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The key points to keep in mind, as verified below are:

-    There is no constitutional basis for the filibuster, nor is there a legislative basis.  It is simply based on the current Senate rules.

-    The relevant Senate rules have been changed several times in the past.  They can be changed again.

-    In order to change these rules  a majority vote by 51 senators (or 50 Senators plus the vice president if needed) is all that is required. 

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Some key excerpts from Wikipedia explain this in more detail:

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Filibuster is a tactic used in the United States Senate to prevent a measure from being brought to a vote by means of obstruction. The most common form occurs when one or more senators attempt to delay or block a vote on a bill by extending debate on the measure. The Senate rules permit a senator, or a series of senators, to speak for as long as they wish, and on any topic they choose, unless "three-fifths of the Senators"(usually 60 out of 100) vote to bring the debate to a close by invoking cloture under Senate Rule XXII.

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The ability to block a measure through extended debate was an inadvertent side effect of an 1806 rule change, and was infrequently used during much of the 19th and 20th centuries. In 1970, the Senate adopted a "two-track" procedure to prevent filibusters from stopping all other Senate business. The minority then felt politically safer in threatening filibusters more regularly, which became normalized over time to the point that 60 votes are now required to end debate on nearly every controversial legislative item. As a result, "the contemporary Senate has morphed into a 60-vote institution — the new normal for approving measures or matters — a fundamental transformation from earlier years."

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Efforts to limit the practice include laws that explicitly limit the time for Senate debate, notably the Congressional Budget and Impoundment Control Act of 1974 that created the budget reconciliation process. Changes in 2013 and 2017 now require only a simple majority to invoke cloture on nominations, although most legislation still requires 60 votes.

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One or more senators may still occasionally hold the floor for an extended period, sometimes without the advance knowledge of the Senate leadership. However, these "filibusters" usually result only in brief delays and do not determine outcomes, since the Senate's ability to act ultimately depends upon whether there are sufficient votes to invoke cloture and proceed to a final vote on passage. However, such brief delays can be politically relevant when exercised shortly before a major deadline (such as avoiding a government shutdown) or before a Senate recess.

 

2)    WHY SHOULD THE RULES BE CHANGED?

At this point, the filibuster is not about extending debate.  It’s not even about using an extraordinary procedure that is difficult and uncomfortable in order to block highly controversial legislation.  It has become a mechanism to change to the constitutional framework that requires a simple majority to pass legislation (the constitution does require super-majorities for specified situation, such as approval of a treaty or conviction of an impeached government official) to one that requires a 60 vote supermajority for nearly all legislation, except for that legislation which can pass under “reconciliation” rules, which has severe constraints and can only be used once a year in any case.

 

The key arguments for changing it are as follows:

 

-    Our national government is increasingly gridlocked and unable to address the many critical challenges facing our nation.  If you asked most people if there would be a problem with the government being able to pass legislation more easily, I think they would laugh and ask where they sign up.  Understandably so, because they would be absolutely right.  It has long outlived its usefulness, to the extent it ever had any. 

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-    It shields political leaders from accountability.  If the people have chosen a President, House and Senate of the same party, they should be able to govern within the boundaries of our constitutional system.  If they do well and effectively address the nation’s critical problems, they will deserve re-election.  If they abuse their power or govern poorly, they will deserve to be defeated and the opposing party will get a change to govern better.  A system that prevents a majority party that the people have chosen from governing is one that frustrates the will of the people – and harms the national interest.

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3)    PROPOSED RULES CHANGES:

Very simple – if one party wishes to extend debate, they can do so with 41 votes, with two modifications.

-    They must actually debate the legislation at hand.  No moving on to other issues and tabling it.  No reading from Dr. Seuss or the phone book.  Stand on the podium and make your case, the other side will continue to make its case.

-    After 3 days the threshold changes so that 55 senators instead of 60 can invoke cloture.  If 46 Senators want to continue debate, they can under the rules noted above.

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-    After another 3 days, a simple majority of 51 senators can invoke cloture then or at any time thereafter when the debate has run its course.  At some point the arguments will have been made.  Time to vote.

I favor these rule changes no matter which party is in control by the way.  This is not a partisan point.  The system is archaic and outdated and needs to change.

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Daniel:

 

In Defense of Super-Majoritarian requirements for Legislation and Lifetime Judicial Nominations

 

At the outset, I would like to state that I favor the US adopting 1) a single payer healthcare system similar to the Canadian model; 2) I support a progressive carbon tax model that would automatically rebate the amount collected to each US Citizen; and 3) believe that all deployment of US Military forces requires a Declaration of War passed by Congress.

 

In his opening statement Markus gives a great description of the 200 year history of the filibuster and how the Senate imposed this super majoritarian requirement upon itself and can remove it from itself without running afoul of the constitution.  However, his historical summary leaves out a very crucial aspect of the evolution of United States Constitutional Law, specifically the Expansion of Powers of the Federal Government itself, in particular the scope of Legislation it was able to pass under the Commerce Clause, which over the past 90 years has expanded to the point where it is essentially without limit.

 

Prior to this expansion, Congressional action in areas that did not specifically involve two or more states required a Constitutional Amendment, an even higher super-majoritarian bar to clear than the filibuster.

 

A mere century ago, Congress was without the power to ban controlled substances (alcohol) or impose new taxation schemes (income tax) without meeting the super-majoritarian requirements of a constitutional amendment: clearing a 2/3 majority in both houses of Congress (or arising through a Constitutional Convention called for by 2/3 of the states) and then being ratified by 75% of all states.

 

Simply put, the Federal Government did not have the power to pass much of the legislation we consider routine, like criminal penalties for marijuana, a federal minimum wage, or a mandate to purchase insurance, without clearing a much higher hurdle, and for good reason.

 

To take a single example of which I would completely support, adopting the Canadian model for healthcare distribution and individual cost paid through sales tax, would honestly include dramatic costs of implementation, a few of which are: 1) Essentially paying each doctor on a salary index, as opposed to a cost per treatment business model…. This is going to be very disruptive to the individuals making several million $ more per year than their Canadian counterparts… 2) The hundreds of thousands of individuals who work in the insurance leviathan of claims and appeals and marketing and sales… one system’s cost saving is an individual family’s source of food security…

 

This level of social upheaval, although I believe would be for the good of the country, will only be implemented and improved upon if it is passed with the overwhelming support of the population.

 

That may mean more work, looking at the impact of the program from more angles than that necessary to bring a long the simplest of majorities… but if the change is as important as you believe it to be… then it should be done with open and informed consent of the governed.

 

Ditto for lifetime appointees.  Hopefully it would lead to only non-ideologues getting past the veto process given to both parties.

 

Rebuttals: 

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Markus:

 

Well, Daniel gave an interesting response that is in a somewhat different direction than I expected.

 

Let me see if I can unpack this –

 

He notes that the interpretation of the Commerce Clause by the Supreme Court is far more expansive than it was in the earlier days of the Republic.  No argument there.  A great deal of that happened in the 1930s, when the Supreme Court initially blocked much of the New Deal legislation as unconstitutional, and then reversed course to a fair extent.  Some would argue that it did so after FDR threatened to “pack the court” in frustration at their narrow reading (as he saw it) of the Constitution.

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Daniel mentioned the implementation of the income tax as one specific example of a change that required a constitutional amendment.  In fact, a constitutional amendment (the 16th) was required because of the original language of the constitution – as Wikipedia notes here – “The Sixteenth Amendment (Amendment XVI) to the United States Constitution allows Congress to levy an income tax without apportioning it among the states on the basis of population. It was passed by Congress in 1909 in response to the 1895 Supreme Court case of Pollock v. Farmers' Loan & Trust Co. The Sixteenth Amendment was ratified by the requisite number of states on February 3, 1913, and effectively overruled the Supreme Court's ruling in Pollock.

 

We are a very different nation than we were in 1789, and the constitutional amendment process is a very difficult one.  It was intended to ensure that the constitution is a living document that can be modified as times change.  However, we haven’t ratified an amendment in the past 28 years, and I doubt any will be ratified any time soon.

 

I personally would like to see changes to the way we choose a President, to the structure of the US Senate, to the control that partisan state governments have over the drawing of legislative districts – but none of that is realistically going to happen.  We could have an interesting future debate on any of them though, Danielle!

 

Bottom line, I have a fundamentally different view than Daniel of where our politics is today and where it will be any time soon.  The idea of a thorough, bipartisan debate held in good faith by the members of our government to ensure that major changes will best reflect the public interest and serve the nation is awesome.  It also has no bearing in reality, unfortunately.

 

I’ll go back to where I started.  We have major challenges as a nation and a basically dysfunctional government, and the current filibuster rules only add – greatly – to that problem.  If the people choose one party to have the White House, the Senate and the House, they have asked that party to govern.  They should be able to.  If they have a two or three vote majority in the Senate, the most that is likely these days, they will still need to have strong consensus within their party, persuade some from the other party, or both to get over a 51 vote threshold.  And if they pass bad legislation, they will be accountable at the next election – and it can be modified or repealed if that has support in the next Congress.

 

That sounds better than what we have now, in my opinion.

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Daniel: 

 

Greetings Markus, 

 

I appreciate you entering this exercise in good faith and I imagine you seek to provide a mechanism by which to provide prompt resolution to those “major challenges” that face us a nation. 

 

I may have a romantic notion of our system, but I cannot divorce the role of the Great Compromise from the historical tapestry that brought this nation into being. 

 

I guess the core of our dispute comes to the process of who gets to decide exactly what qualifies as a “major problem...” and to whom should bear the economic and human costs of the proposed solution...

 

I don’t see it as dysfunctional that the debate on climate change requires input from coal miners in Appalachia... who have seen their ability to provide for their families (an opportunity that has served communities for generations) decimated...

 

I see beauty in a system where the majority is forced to carry the admittedly heavy burden of seeking consensus from those in the minority...

 

“What (Americans) don’t expect is for one party — be it Republican or Democrat — to change the rules in the middle of the game so that they can make all the decisions while the other party is told to sit down and keep quiet. The American people want less partisanship in this town, but everyone in this chamber knows that if the majority chooses to end the filibuster — if they choose to change the rules and put an end to democratic debate — then the fighting and the bitterness and the gridlock will only get worse,” an American political leader once eloquently stated.

 

To eliminate the filibuster is to sever one of the few remaining tools our Republic maintains to ensure the voices of the minority are not forgotten.

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If the goal is to refine this tool to prevent abuse, we can find common ground. 

 

Understanding the power of this tool, I have no problem requiring the individual exercising that power to literally hold the floor (talking filibuster)... as to link a cost to the minority speaker... a price commensurate to the delay imposed on the Majority...

 

But as then Senator Obama understood, no Majority should  change the rules of the game so the Minority will “sit down and keep quiet.”

 

From my perspective, there’s beauty in a system that ensures that every Minority is given a chance to make their case, with as much time as they wish to hold the floor, PRIOR TO the enactment of legislation that will be as binding on the Minority as it is on the Majority. 

 

This feature of our system is not a bug, or a dysfunction... no matter how much it may seem to whichever majority presently holds the crown.

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Question from Moderator:

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Moderator (Danielle):

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For this debate, you will both respond to the same question.Your responses are to the question itself, not as a response to one another.

 

In the article "The Smart Way to Fix the Filibuster", scholar Norm Ornstein proposes a fix to the filibuster that appears to split the baby between your two arguments. I will provide the link to the article, but the main proposal is the following:

 

“The answer is to return the filibuster to its original intention—something to be used rarely, when a minority (not necessarily a partisan one, by the way) feels so strongly about an issue of great national significance that it will make enormous sacrifices to delay a bill. There is a simple way to do this—and, in the meantime, keep Rule XXII and mollify Manchin et al. while also providing an opening for Biden and his Democrats to get big things done. That is to flip the numbers: Instead of 60 votes required to end debate, the procedure should require 40 votes to continue it. If at any time the minority cannot muster 40 votes, debate ends, cloture is invoked, and the bill can be passed by the votes of a simple majority.”

 

How would you respond to this argument? Do you agree or disagree with it and why? Moreover, is it politically feasible?
 

Responses and Conclusions:

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Daniel:

 

I would like to say at the outset that I’m in general agreement with this article and the need to straddle the Yin (maintain the minority representation of the filibuster) with the Yang (abusive procedural tactic employed with minimal costs)...

 

I likely would be in favor for many of the reasons listed by the author... and willing to budge on the specifics...

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As long as the macro parameters include a way for a minority of anti war true believers have the ability to take the floor for as long as they wish to make their case...

 

I’m happy to limit the filibuster to the point where they are unable or unwilling to continue to hold the floor. 

 

Markus, let me know if we’re still far apart on this question.

 

Markus:

 

The article Danielle posted wraps up as follows: "It would require a huge, sustained commitment on the part of Republicans, not the minor gesture now required. The drama, and the attention, would also give Democrats a chance to explain their reforms and perhaps get more public support—and eventually, they would get a law. A bolder option would be to raise the minority threshold to 45 votes required to continue debate, instead of 40.

 

The destruction caused by Donald Trump and his Republican allies in Congress, to our health, environment, economy, and political system, is unprecedented. Undoing it will not be easy no matter the rules or the political composition of Congress. But changing the rules in the Senate is a necessary, if not sufficient, requirement to making progress. Fortunately, there are options besides complete elimination of the filibuster rule."

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Firstly, let me say that the author and I are not that far apart to start with.  I too said we should reform and not eliminate the filibuster.  The idea that it takes 40 votes to continue debate rather than 60 to invoke cloture is excellent.  I'm sold on that. The author does not explicitly say that the extended debate must be on topic, but I would insist on that.  If we are extending debate, then let's debate.  If the opponents of the legislation have more arguments to make, let's hear them.  It's also suggested by the author that the threshold could be 45 instead of 40, which is part of my proposal as well.  As a reminder, I said it should start off as 60 to get cloture, then 55 after 3 days of debate, then go to a simple majority next, I think it was after 7 days.  I'd still want to do that, so we would start off with 40 being enough to extend debate, then 45 after 3 days and then a majority after 7. 

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 Debate is fine, and extending debate is fine, but at some point the majority should be able to govern.  The people can vote them out if they disagree with what they've done.

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Daniel:

 

It looks like we agree on far more than we disagree. We both agree that filibuster reform is a good thing. It doesn’t sound like either of us are in favor of silent (non speaking filibusters) with an automatic 60 vote threshold.

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Where we differ is on whether the existing threshold should automatically be reduced until the Senate functionally operates like the House, a majoritarian institution. 

 

The Senate is by design NOT a majoritarian institution but the saucer that is to cool the tempestuous populistic impulses of the house. 

 

There should be a maximum amount of input from the broadest spectrum of the country on legislation that affects

us all, cabinet appointments, and Lifetime Appointments to the courts generally and to SCOTUS in particular... I’m not thrilled with the idea that ACB will replace RBG on the thinnest of majorities and ALL 3 of Trump’s Supreme Court nominees would have been rejected under a Senate that embodies the principle of forcing the broadest possible consensus on those decisions that most powerfully affect the lives of Americans.

 

McConnell warned Harry Reid that he would regret the day he eliminated the filibuster for Circuit Court judicial nominees. Democrats are presently reaping what they sowed... and the full impact will materialize over the next few decades.

 

Compromise candidates would have been the outcome if there was a 60 vote threshold. So, yes, reform the filibuster to make the senators actually speak for the entire time they wish to hold the senate floor and prevent senate action. But be wary of eliminating the unique role of the senate to force super-majoritarian consensus on those decisions that the entire country will be forced to live with for decades. 

 

It will not always cut in your favor.