Friday, December 12, 2008

Time for Senate Dems to Exercise "Constitutional Option" on Filibusters?

Last night the Senate voted 52-35 to cut off debate on the bill that would have given Federal aid to American automakers. Since, however, the bill did not get 60 votes, the cloture motion failed. On the motion nine Republican Senators crossed over to vote for the motion. Four Democrats voted against the motion while 12 Senators did not vote. One of those who voted against the bill was Reid, the Majority Leader, who may have voted the way he did for procedural reasons.

The non-voting Senators included four Democrats and eight Republicans. Of the eight Republicans not voting, three were defeated Republicans. Of those three, two of the Democratic Senators-elect who will be replacing them would probably have voted for the motion. They are the new Democratic Senators from Oregon and New Hampshire. The newly elected Democrat from Alaska is much more of an unknown factor.

So, if you start with the 52 Democrats who voted for the motion, add Reid, add the two newly elected Senators from NH and OR, and then add the four Democrats who weren't present for the vote, you get 59 votes for cloture, and the motion still fails. Of course, one of those who voted against the motion was Coleman from Minnesota. If Franken manages to eke out a victory in MN, then such a motion after January 3rd would have reached the 60 votes necessary to cut off debate.

Why are we going through this analysis? Because there are going to be many votes in the Senate to cut off debate on legislation that Obama will be supporting. Legislation on energy, health care, the environment, and other issues. Despite his margin in the polls, there is a good chance that enough Republicans and Democrats will be found to oppose such motions and they won't pass.

Why do we think that? Because of the 35 Senators who opposed the cloture motion, only four came from states that Obama carried. Of the three Democrats other than Reid who voted against the motion, all three of them came from states that McCain carried.

Think about the legislation that was being debated. According to some experts, if there is a failure of two of the Big Three American automakers, three million Americans could be put out of work. We are not just talking autoworkers. We are also talking about employees of car dealers, parts suppliers, and other related businesses. Indeed, there are some automotive experts who claim that all North American car manufacturing could stop if GM goes down because auto companies like Nissan, Toyota, and Honda, which have American plants, depend on the same suppliers as GM. If GM goes down, the theory goes, so much of the business of those suppliers would be lost that they would also go out of business even though they also sell to foreign-owned plants in the U.S.

If 35 Republicans are willing to risk that kind of disruption to the American economy on this issue, then why will they be willing to support health care reform, energy legislation, education reform, and other big-ticket items on the Obama agenda?

So, here is the question: Should Democrats start laying the groundwork to exercise what conservatives call the "constitutional option" to change the Senate Rules to eliminate the filibuster? Should Democrats just sit back and let a minority of the Senate, representing states that comprise much less than half the nation's population frustrate progressive legislation?

Andrew Jackson, in his first State of the Union message, said that the first principle of our government is that the majority should govern. He said that in the context of calling for a constitutional amendment to get rid of the Electoral College and allow direct election of the President by the nation's voters.

The same argument can be raised against the filibuster, only, unlike the Electoral College, it isn't constitutionally mandated. Think about what the adoption of Jackson's philosophy would have meant over the last eight years. Get rid of the Electoral College and Gore becomes President in 2000. Get rid of the filibuster and there is a deadline set for Iraq withdrawal back in 2007 and health care for children is extended to millions more of America's children.

Is there a risk in getting rid of the filibuster? Sure, because in the future there will be a Republican President with a Republican Senate and Democrats will want to frustrate his or her legislative agenda. We think, though, that on the whole, filibusters have been used more often against progressive legislation than against conservative legislation. Get rid of the filibuster and it becomes a lot easier to pass progressive legislation. Grass-roots Democrats should start laying the groundwork for the Senate to exercise the "constitutional option."

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