the consequences of 60, or, this town ain't big enough for both Harry Reid and the filibuster

The current Senate Majority Leader has just been dealt more power than any since the Carter Administration, though in truth he has both more and less than appears. Like the Republicans, the Democrats are more ideologically sympatico than they've ever been, so Reid just doesn't have to worry about major splits in the ranks and significant rebellious factions (despite Evan Bayh's threats to form the elusive agenda-less senate faction. Scary!). Sure, a handful of senators here and there can and will play contrarian for the papers, but it will be nothing like the Dixiecrat factions of old.

And yet, the smart money is on Harry Reid losing most of his battles, failing to advance Obama's agenda very far, and ultimately being unceremoniously dumped as Majority Leader. The reason is that expectations are going to be very high now for Reid to pass legislation with sheer brute force. Even people who know better are going to act as if Reid should be able to ram the president's agenda down the throats of the puny Republican minority in the same way Pelosi has been able to steamroll the House GOP delegation time and again since '06. And frankly, they aren't entirely wrong. Historically a Senate supermajority has always meant that the party in power can pass legislation at will, barring no serious internal divisions.

The de-publicized, or silent, filibuster has changed all that, however. Now a party with even just 40 senators can obstruct with impunity, filibustering every single piece of legislation that comes down the pike. Because of this change in procedure, even a party as utterly (and repeatedly) rejected by the voting public as today's Republican remnant can demand major concessions from the Majority Leader even when he can keep his entire party in line, because he must attain 60 votes to break a filibuster, and yet several prominent Democrats are too infirm to attend sessions reliably, such as Ted Kennedy and Robert Byrd.

What's funny about Reid's predicament is that, as is often the case with life's problems, it is a monster of Reid's own making. There are 2 different ways in the last 8 years in which Harry Reid could have prevented either the Republicans' abuse of the filibuster or the public's assumption that it isn't a big deal, and he backed down every time. The first one lies in Reid's tenure as Minority Leader, when he had the option of obstructing the Republicans and chose not to. Frist seemed to be able to pass anything he wanted (as long as it didn't have to do with Social Security) with 5-11 fewer senators than Reid now has. In fact, it appears that Reid's Democrats engaged in fewer filibusters even than previous Republican minorities. The second Republicans found themselves in the minority, however, they began filibustering at three times the previous year's rate, filibustering some 150 times in the last congress (the previous record was 58, also a Republican minority).

The other moment came when the rules for this session were enacted by Congress at the beginning of the year, and he neglected to revisit the filibuster rule even after suffering 150 filibusters in the 2007-8 session and even after Mitch McConnell openly admitted that the primary tactic of Senate Republicans would be obstruction via filibuster.

Thus it is expected that Reid should be able to do what Frist could do with 51 senators, though the truth is that he can't because, frankly, he isn't facing Harry Reid on the other side of the aisle.

It may already be too late for Reid, because it takes 67 votes to change the rules, and I don't think Franken will be enough to secure passage in a pinch, even with the sudden, convenient metamorphosis of Arlen Specter into a reliable progressive Democrat. If he does survive to 2011, though, has absolutely must reconcile himself with one simple, irrefutable fact: the decorum and camaraderie and willingness to be a minority partner in governance that existed in the Senates of the 1980's and before is long gone. The Republican party, Mitch McConnell included, has no interest in abiding by the old mores of the Senate because they believe that the stakes have become too high to worry about things like honor and precedent. Rules without teeth will not be followed, and an across-the-board 60-vote threshold is unacceptable in the United States Congress. Reid should take note of the hell states like California and Arizona are going through right now trying to deal with unworkable supermajority thresholds.

they're actually doing it

Reid is not letting the Republicans replace Specter on Judiciary and Appropriations unless they adopt a new organizing resolution... for 60 Democratic senators. In effect, he's holding their committee seats hostage until they make room for the new junior senator from Minnesota, Al Franken.

then let them sit!

This is bullocks:

The byproduct of the cloture rule changes in 1917 and 1974 is you need to invoke cloture to proceed to a bill. Senators don't have to speak to vote against cloture. If you can't get 60, you can't move it to the floor. On the motion to proceed, if a Republican chose to get up they can speak about any topic they want, or they can sit down and begin an endless series of quorum calls. Or they can begin motions to proceed on their own set of bills.

Basically there is no way to force a Senator to speak or vote on any particular bill and if you can't get 60 you can't proceed to final passage.

No. This did not become a staple of the legislative process until 2006, when the Republicans adopted a policy of obstructionism. In abnormally combative years before the Democratic takeover, there would 50 cloture votes over the life of the congress; in the 2006-7 congress, there were well over 100, which ground the Senate to a near halt.

And now, with the largest majority any party has seen in decades, the Senate is still stopped dead in its tracks.

This cannot continue. If the Majority Leader does nothing, it will become normal for the Senate to require 60 votes to pass anything, and will permanently write gridlock into the rules of the government. It will become normal for our increasingly ideologically homogeneous parties to derail each other's entire agendas with this one rule change unless they achieve a senatorial supermajority, which we haven't seen since the Carter Administration (and the Republicans haven't seen in a hundred years).

First of all, I think people will notice, and the papers will cover it, if a Republican has brought the Senate to a standstill and is sitting alone in the chamber calling quorums all day and night. It's not like CNN is going to keep the cameras on an actual speechifying filibuster except at certain brief moments, so what difference does it make if they're speaking or not?

Second, this rule has got to be changed. Filibusters are supposed to entail risk for the acting party in the form of the citizenry seeing them hog the stage and stop the government rather than allow the Senate to vote on bill X. Without that, there is no disincentive for the minority party to filibuster everything that comes across their desks, and suddenly you have an absurd 3/5 majority requirement for virtually every vote, no matter how mundane, if it offers even the slightest benefit to any party. I'm not saying the filibuster should be abolished, but some equalizing factor, some disincentive, has to be reintroduced (like, gosh I dunno, making them speak!). This is insane.

Weakest Senate Majority Leader ever

Harry Reid, owned again, this time by an impeached governor and a guy who isn't even a senator yet. Perhaps it's all part of Reid's ingenious "strength through weakness" strategy.

Dems will seat Burris

I swear to God, I was telling Sap just the other day that the smart money was on Burris in this fight, that Reid's ability to get steamrolled by strong opponents is matched only by his ability to get steamrolled by weak opponents. I've never seen a boxer so afraid of a fight. Furthermore, Blago is not yet facing any formal charges, and I'm not sure what argument Reid could use in a courtroom to justify not seating someone legally appointed by a sitting, and still technically innocent, governor. I even wrote a post about it yesterday, but deleted it thinking that perhaps McConnell would figure out a way to keep Burris out just to keep the spectacle going.

Reid really is the poster child for Democratic spinelessness.

Senate's impending all-nighter

It's funny, now that there's a full press boycott on the word "filibuster," I had no idea what the point of this was until I stopped relying on the press to tell me and went to the blogs. Here's some snippets of what I was reading in the papers. From TPM:

This article from Reuters manages to get through an entire article on the filibuster the Democrats are going to force senate Republicans to go through with without ever actually using the word 'filibuster'. It's almost a thing of beauty in its negative capacity of bamboozlement.

Some choice quotes ...

U.S. Senate Democrats, hoping to raise pressure on President George W. Bush and his fellow Republicans to pull troops from Iraq, have scheduled an around-the-clock war debate starting on Tuesday.

and

Democrats have all but publicly acknowledged that they will be unable to pass their end-the-war amendment because opposition Republicans are insisting on 60 votes for a victory.

That's not a good sign.

You figure maybe that's the whole point of why Reid is doing this, i.e., to force the press to acknowledge the obvious?