Category Archive: U.S. House & Senate

Senate Democrats Overturn Parliamentarian & Precedent (Oct. 6th) To Impede Floor Amending & Further Entrench Supermajority Cloture

As originally posted in the reader-diary section of; the post’s 2011 comment thread is available at that link. [On January 31, 2012, long-time Senate Parliamentarian Alan S. Frumin retired. Frumin had served in that position since 1987, except for six years (1995-2001) when Robert Dove was reappointed Senate Parliamentarian. One month after Frumin’s retirement, House Parliamentarian John V. Sullivan announced his retirement, effective March 31, 2012.]

Compounding a track record of irresponsible and dishonorable conduct, and historic levels of public disapproval, there’s a disturbing trend accelerating in the Senate, which is further centralizing the power of our representatives in the hands of the few among them who control the two private, hierarchical, corporate-profit-funded Party organizations. A trend that is evidently designed to enable Party bosses to increasingly dictate, in private, the details and the outcome of all important legislation in the Senate.

Those, now led by Harry Reid, who wield that top-heavy power – courtesy of the public and private abdication of their Senatorial responsibilities by Party Caucus members – are working hard to further consolidate the power that Senators have already ceded to them to shut down, at will, the daily floor business of the Senate. [Via, in particular, the unchallenged – as out of order – “Fake Quorum Call” that functionally recesses the “in session” Senate each and every day (facilitating the routine replacement of the Senate’s default simple-majority regular order with the Party-preferred, optional supermajority Rule 22 cloture order), in addition to the unanimous daily agreement to “deem expired” the “Morning Hour.”]

Whether through the months of White House-instigated backroom wheeling and dealing between a select few Party members on the debt ceiling and national budget (while the Senate Budget Committee, under Democratic control, was deliberately idled), or in the secretly-conducted (“closed”) multi-day markup of the far-reaching National Defense Authorization bill (2012 NDAA) in Carl Levin’s Armed Services Committee this year, or in the Harry Reid-conceived undemocratic Joint Select Super Committee (which hasn’t held a public business meeting since its first brief organizational meeting on September 8th), most Senators, under Democratic Party control, seem focused on one primary objective: to remain out of public view and off the public record while they help their Party leadership to do the dirty work of their campaign contributors – which, in the case of the Reid-led Democrats (plus Bernie Sanders and Joseph Lieberman) at present, still means regularly taking dictation from the President. [Never mind all that pretty, abstract talk about the vital role of the “separation of powers” that Supreme Court Justices Antonin Scalia and Stephen Breyer waxed eloquent about before the Senate Judiciary Committee on Wednesday.]

The more despised these tactics become, the more the Senate Democrats, under Reid, seem to double down on their backroom behavior and its practiced deceit, and on their public efforts to avoid accountability, including by blocking so-called “tough” votes by abusing the powerful motion “to table” – which allows them to cast roll call votes, with no debate, to kill a measure without formally considering it on its merits, pro or con. [10/31 addition for the record: Even as the members of the Joint Select Super Committee (linked site removed by 2/2012) disgracefully continue to ‘gather’ in private for off-the-record ‘conversations’ – while refusing to convene any public meetings or to engage in any public deliberation since the committee’s first and only public meeting on 9/8 (which preceded several limited public “hearings”) – sometime between October 7 and October 21, 2011, the Joint Committee abruptly changed, apparently without notice, the domain name of its official website, and fails even to refer traffic that finds its brand-new but already-defunct original website (linked site subsequently removed by 2/2012) to the current site (unchanged except for the site’s name; and, by 2/2012, also removed entirely).]

Knowing that the media (similarly driven by a corporate profit-focused agenda) and Party-aligned writers and bloggers are unlikely to accurately explain, undistorted by self-serving Party spin, the latest ugly example of this undemocratic, power-centralizing trend in the Senate, this is my Senate-aligned, as opposed to Party-aligned, account of the overturning of existing Senate precedent (related to a rarely-invoked motion to suspend the rules) that I watched Senate Democrats quickly fall into line to support yesterday evening, October 6, 2011 – a vote, held without any public debate, that those Senators voluntarily cast to reduce their own power as individual Senators to publicly create and revise federal legislation on the Senate floor in future.

I happened to tune in C-SPAN2 Thursday evening at about 6:44 p.m. Eastern, to see what further damage the Senate had managed to do this week (to their institution, if not to their country), knowing that, as usual (and despite having just returned from a week off), by then Senators would be attempting to flee D.C. for their long weekend (made longer this weekend by Yom Kippur and Columbus Day).

I’d earlier heard, via C-SPAN, that President Obama had summoned his Democratic Senate subjects (Harry Reid, Dick Durbin, Chuck Schumer, and Patty Murray) to the White House for a 5:30 p.m. meeting yesterday, presumably to review presidential re-election campaign strategy as it relates to legislation written and ordered to pass the Senate by the White House (see: the American Jobs Act, whose Reid-revised text, filed as S. 1660, is not yet available at the Government Printing Office, though the Senate will be voting on a cloture motion to proceed to the bill Tuesday evening, as arranged just before the Senate adjourned for the weekend at 10:00 p.m. Thursday). So I expected that I might see Harry Reid attempting to obediently execute the President’s will on the Senate floor, post-meeting.

When I tuned in, a vote was in progress, but C-SPAN was unable to describe the vote beyond the fact that it was a “procedural vote” on the pending currency “misalignment” bill (aimed at China, and written/sponsored by Chuck Schumer, Sherrod Brown and Lindsey Graham). Given the bill’s posture (post-cloture, after a Democratic cloture motion had passed, with 62 votes, earlier in the day), a vote to require the attendance of Senators, because (as usual) a Constitutional quorum was not present in the Chamber, seemed the most logical explanation for the roll call. Except that the Party-line vote was the reverse of the typical attendance vote (Republicans were voting Aye, Democrats were voting No).

I waited and watched, and soon noticed that some serious Democratic arm-twisting was taking place in the well of the Chamber. The reason for that arm-twisting became quite clear, when the vote concluded at 7:22 p.m., and (as soon as Democrats Reid, Udall of NM, Durbin and others stopped blocking them by refusing consent to lift a Reid-imposed Fake Quorum Call) a couple of Republican Senators (Bob Corker of TN and Roger Wicker of MS) thankfully stood up to challenge and protest with integrity what had just taken place (their facial expressions and tones of voice speaking volumes).

Here’s Senator Corker:

The PRESIDING OFFICER. The Senator from Tennessee.

Mr. CORKER. Mr. President, thank you for recognizing me.

I really do not want to speak. Here is what I want to happen. I think Members on both sides of the aisle believe this institution has degraded into a place that is no longer a place of any deliberation at all. I would like for you [meaning Harry Reid] and the minority leader to explain to us so that we have one story here in public as to what has happened this week to lead us to the place that we are. That is all I am asking. That is all I want to know. Explain how the greatest deliberative body, on a bill that many would say was a messaging bill in the first place, ended up having no amendments, and we are in this place that we are right now. I would just like to understand that.

Here’s Senator Wicker: Read the rest of this entry »

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Former Rep. Mickey Edwards and Incumbent Sen. Mike Lee: Have Confidence In The People; Don’t Fear & Bypass Their Congress

As originally posted in the reader-diary section of; the post’s 2011 comment thread is available at that link.

A former member of the United States House of Representatives:

On the day I was sworn in as a member of Congress, all of us “newbies”—including Al Gore, Dick Gephardt, Dan Quayle, David Stockman, and Jim Leach—were a single band. But moments after taking the oath of office, we were divided into rival teams: first came the vote to elect a new speaker, then to adopt House rules written by the majority, then to consider the membership of committees, with party ratios decided by the majority. From that moment on, during the 16 years I served in Congress, and every day since my last term ended, I have seen the United States Congress as it actually functions, not as a gathering of America’s chosen leaders to confront, together, the problems we face, but as competing armies—on the floor, in committees, in subcommittees—determined to dominate or destroy.

Sound familiar?

United States Capitol photo by wallyg at

The U.S. Capitol, seat of our Legislative Branch of government

That’s Mickey Edwards of Oklahama speaking, a Republican with experience in Party leadership, who left Congress in 1993. He’s done us a great service by honestly recounting his insider experiences in Congress – something we too-rarely see – to try to bring genuine reform to that institution. Edwards is perceptively and courageously focusing, of necessity, on ending the money-driven Party vs. Party wars that have been allowed to overrun the place. As ‘cmaukonen’ first noted here, Edwards has just written a piece for The Atlantic, that I highly recommend, entitled How to Turn Republicans and Democrats Into Americans; An insider’s six-step plan to fix Congress, from which the above excerpt is taken.

Those who are concerned about our increasingly-unchecked presidency would do well to consider one major benefit of diluting the power of Party in Congress as advocated by Edwards: Read the rest of this entry »

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The Invaluable Attribute of Independence in Senate Incumbents in an Era of Top-down Backroom Control of Congress by Party & President

As originally posted in the reader-diary section of; the post’s 2011 comment thread is available at that link.

Freshman Senator Rand Paul of Kentucky, speaking to Anderson Cooper of CNN, on Friday, May 20, 2011:

Senator Rand Paul: “We go week after week in the Senate and do nothing. I feel like sometimes I should return my check because I go up, they do no votes and no debate. Look at this horrendous debt crisis – we don’t debate that either.”

Anderson Cooper: “Really, you feel like that? You feel like you’re not doing anything there?”

Paul: “Yes. I feel… Absolutely. We go up week to week and there’s no debate in Congress. No debate in the Senate. We sit idly by. Some weeks we vote on two-three non-controversial judges and we go back home. It, really…”

Cooper: “Why is that?”

Paul: “I’m trying to get a vote on Libya. They say they don’t have time. I was told, when I wanted to bring up my resolution on Libya – which I did force them to [for, literally, ten minutes], but I had to kinda capture the floor…”

Cooper: “It got tabled like 90-10…”

Paul: “Yeah, and they weren’t too happy with me because I used some parliamentary procedures to gain access to the floor, and they came running down to the floor. They were apoplectic that I had taken over the floor, and the thing is is that we should be having these debates on the floor – they don’t want to have any debate. I’m asking right now to vote on Libya – I have a resolution saying we’re in violation of the War Powers Act. It’s hard for me to get the floor unless I somehow sneak on the floor when no one’s looking to try to get a vote. Why would we not want to debate great Constitutional questions? When I ran for office, that’s what I thought – there will be great and momentous debates on the floor. We don’t have any because they prevent the debates from ever even beginning.

Cooper: “Senator Rand Paul, appreciate your coming on. Thank you.”

Paul: “Thank you.”

David A. Fahrenthold, providing a rare and welcome account of Senate floor proceedings in the Washington Post, on June 9, 2011:

In the U.S. Senate, this is what nothing sounds like.

“Mr. Akaka”

At 9:36 a.m. on Thursday [6/9], a clerk with a practiced monotone read aloud the name of Sen. Daniel K. Akaka (D-Hawaii). The chamber was nearly deserted. The senator wasn’t there. Not that she was really looking for him.

Instead, the clerk was beginning one of the Capitol’s most arcane rituals: the slow-motion roll calls that the Senate uses to bide time.

These procedures, called “quorum calls,” usually serve no other purpose than to fill up empty minutes on the Senate floor. They are so boring, so quiet that C-SPAN adds in classical music: otherwise, viewers might think their TV was broken.

This year–even as Washington lurches closer to a debt crisis–the Senate has spent a historic amount of time performing this time-killing ritual. Quorum calls have taken up about a third of its time since January, according to C-SPAN statistics: more than 17 eight-hour days’ worth of dead air.


“It’s not even gridlock. It’s worse than that,” said Allan Lichtman, a history professor at American University who once ran for the Senate himself as a Democrat. He said “gridlock” implies that somebody was at least trying to get legislation passed.

Instead, he said, this year “they’re not even trying to get something done.”

To an outsider, a quorum call looks like a serious–if dull–piece of congressional business. A clerk reads out senators’ names slowly, sometimes [usually] waiting 10 minutes or more between them [and rarely getting beyond the first few names].

But it’s usually a sham. The senators aren’t coming. Nobody expects them to. The ritual is a reaction to what the chamber has become: a very fancy place that senators, often, are too busy to visit.

This is [part of] what happened: Decades ago, senators didn’t have offices. They spent their days at their desks on the Senate floor. So clerks really needed to call the roll to see if a majority was ready for business.

Now, senators spend much of their time in committee rooms, offices and elsewhere. If no big vote is on the horizon, often nothing at all is happening on the Senate floor.

But Senate rules don’t allow for nothing to happen.


After 12 minutes, Sen. Mark R. Warner (D-Va.) showed up. “I ask [unanimous consent] that the proceedings of the quorum be dispensed with,” he said. That’s how quorum calls usually end: The next senator who wants to speak asks for a halt.

After Warner gave a brief speech on the value of federal workers, it happened again. “Mr. Akaka,” the clerk said. Twenty-one minutes of silence.

At a deli in the Senate’s basement, it was clear this was wearing on people. One Capitol employee asked another: Where are you working today? “Senate chamber,” his buddy replied. “Shoot myself in the head.”

These sham roll calls have been a feature of Senate debate for decades, but this year has been special: According to C-SPAN, the Senate has spent more than 32 percent of its time in quorum calls. That’s more than in any comparable period dating to 1997.

The main reason seems to be the bare-bones agenda pursued by the Senate’s Democratic leaders: There have been just 87 roll-call votes so far, compared with 205 in the same period during 2009. Senate Democrats have not even proposed an official budget; the strategy appears to be to shield vulnerable incumbents from controversial votes on spending.

“Why are we here?” asked Sen. Tom Coburn (R-Okla.), a critic of the large number of quorum calls this year. The Senate is not operating the way it was designed, because politicians don’t want to be on record.”

A crucial point that’s summarized by Fahrenthold’s “But Senate rules don’t allow for nothing to happen” is that, in the absence of that “slow-motion” roll call that I call the Fake Quorum Call – which never comes to an end on its own, and may only be lifted by unanimous consent or by the Majority Leader, unless and until some Senator has the guts to challenge the Party status quo by asking that the Senate’s parliamentary rules be enforced – or of any actual floor debate, the Presiding Officer is required under the rules and precedents of the Senate to put the pending question (whatever it is – a motion to proceed, an amendment, a bill, a nomination) to a simple-majority vote of the Senate:

“When a question is pending, and a Senator addressing the Chair concludes his address to the question, and no one immediately seeks recognition, it is the duty of the Chair to state the pending question to the Senate.”
– Riddick’s Senate Procedure

Which is a fact that should help illuminate how insidious (and wholly unnecessary) it is that the current Party majority in the Senate now routinely abuses the optional Rule XXII cloture motion process, in the absence of obstructive floor debate – thereby preventing routine Senate debate and amendment (the transaction of Senate “business” without the need for unanimous consent), while simultaneously imposing supermajority thresholds for the adoption of legislation and confirmation of nominees in the Senate. The only reason for the current Democratic majority to avoid the use of the default simple-majority Senate rules, given the absence of actual debating filibusters in the Senate for almost two decades now – via their resort to the optional supermajority rule and procedure (which was created in 1917 to overcome rare obstructive floor debate) – is to avoid public debate and unpredictable democratic legislating, conducted in the open by the representatives of the people. [A reason that routinely translates into “Republican filibusters” in Democratic Party-speak, as embraced and amplified by Party hacks and widespread journalistic malpractice.]

So, although David Fahrenthold (and certainly most of his colleagues) may not realize it, that “slow-motion” Senate roll call that never actually determines whether a Constitutional quorum is present (in the empty Senate Chamber) is doing a lot more than “biding the time” of the Senate, and it’s seriously damaging the institution. The constant imposition of the Fake Quorum Call, unchallenged by any Senator, and deployed in lieu of a simple Senate recess – which would make the Senate’s inaction plain for all to see, and which the Senate routinely agrees to every Tuesday, at midday, while members attend their private Party luncheons – creates the need for unanimous consent simply to conduct ordinary business on the Senate floor. That vests inordinate power in a few hands at the top of each Party organization, and those Party bosses, in turn, regularly try to privately “deal” in the backrooms for a unanimous way to the floor through their self-imposed Fake Quorum Call blockade of the Senate floor.

It’s the increasing imbalance of power between the three branches of government brought home to the Senate, where the elected power-holders in the institution allow others to wield their power for them. [And no, the absent Senators aren’t all off conscientiously attending committee hearings that conflict with Senate floor sessions (despite a Senate rule, for good reason, precluding that, which must be waived daily) – as the appalling absentee rate at important Senate committee hearings repeatedly demonstrates.] Read the rest of this entry »

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The Constitution, The War Powers Resolution, & Libya: Rand Paul Defends Congressional Authority, Carl Levin Cedes It

As originally posted in the reader-diary section of; the post’s 2011 comment thread is available at that link. In Comment 51 of that thread, I detail how the War Powers Resolution’s Constitutionally-derived limits of “national emergency” defensive “hostilities” [undertaken, and/or reported as specified in 50 USC § 1543(a)(1)] – which trigger the 60-day clock of the War Powers Resolution (WPR) – were simply ignored in the president’s letter to Congress about his war on Libya. That sort of bad faith presidential evasion of the War Powers Resolution should be recognized by Members of Congress for what it is, and be challenged, until an overdue rewrite or revocation of the WPR is in place. Comment 51 also includes an excerpt from a paper explaining why “what the President constitutionally needs from the United States Congress, he cannot get from the United Nations Security Council.”

United States Constitution, Article I, Section 8:

The Congress shall have power . . .

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

Professor Jules Lobel, in prepared testimony testimony to an April, 2008 House Foreign Affairs subcommittee House Foreign Affairs subcommittee:

The Article I congressional power to declare war is not limited to the formal power of issuing a declaration, nor to authorizing full-scale wars, but was intended to give Congress the power to decide whether the United States should initiate any offensive military hostilities, however big or little, or for whatever purposes.9

[Footnote 9: See, e.g., Bas v. Tingy, 4 U.S. 33, 35-36 4 Dall. 37, 40 (1800) (Washington J.) (“every contention by force, between two nations, in external matters, under the authority of their respective governments, is not only war, but public war.”).]

Moreover, to the extent there is any doubt as to the meaning of the Declare War Clause, the clause immediately following it gives Congress the power to “grant letters of Marque and Reprisal.” In the 18th century, Letters of Marque and Reprisal had two meanings. The first, now obsolete, referred to authorization given to private merchantmen to fight the enemy. Second, and still relevant today, letters of marque and reprisal referred to imperfect wars, special wars, limited wars, reprisals — all of which constituted hostilities that were something less than full-scale war.10 For example, both Alexander Hamilton and Secretary of War James McHenry advised President John Adams in 1798 that any use of American naval force beyond repelling attack on the nation’s seacoast, armed vessels or commerce within American waters, “comes within the sphere of reprisals and . . . requires the explicit sanction of that branch of the government which is alone constitutionally authorized to grant letters of marque and reprisal.”11

Professor Michael Ramsey, writing at on March 23, 2011:

Does the Libya intervention amount to a “war” in constitutional terms? Samuel Johnson’s influential 18th century dictionary defined “war” broadly as “the exercise of violence under sovereign command, against withstanders.” International law writers of the time expressed similarly expansive definitions. Although there are surely borderline cases, our use of force against Libya easily qualifies: the opponent is the Libya government, and our objective is to use “violence under sovereign command” to force that government to change course.


Why can’t the President begin a war informally, merely by ordering an attack, without a declaration?

The answer is that in founding-era terminology war could be “declared” either by formal announcement or by military action initiating hostilities. John Locke’s classic Two Treatises of Government from the late 17th century referred to “declar[ing] by word or action.” Blackstone and Vattel, two of the 18th century legal writers most influential in America, also used “declare” in this way. Vattel wrote: “When one nation takes up arms against another, she from that moment declares herself an enemy to all individuals of the latter.” Johnson’s dictionary gave as one definition of “declare” to “shew in open view” – which, applied to warfare, would obviously encompass military attacks. (References are found in my Chicago Law Review article, Part III; for a more comprehensive account, see this outstanding article by Saikrishna Prakash). Thus in 18th century terms initiating an attack was as much “to declare war” as was making a formal announcement; Congress’ Article I, Section 8 power is not narrowly about issuing formal announcements, but broadly about authorizing the sorts of actions that begin war.


If Congress’ power is to decide when war should begin, it follows that the President cannot independently launch attacks.

And the Constitution’s drafters expressly described the clause as designed to exclude presidential war-initiation power. James Wilson told the Pennsylvania ratifying convention: “This system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large.”

As a result, the founding generation’s views are clear and have firm basis in the Constitution’s text: the declare war clause gives Congress the exclusive power to decide when war should be “declared” – meaning begun by “word or action.”

War powers expert Louis Fisher, in a 1998 paper co-authored with David Gray Adler:

The meaning of the war clause was thus settled at the dawn of the republic. The word “declare” enjoyed a settled understanding and an established usage. As early as 1552, the verb “declare” had become synonymous with the verb “commence.” They both mean the initiation of hostilities.31 This was the established usage in international law as well as in England, where the terms declare war and make war were used interchangeably.

This practice was familiar to the Framers. As Chancellor James Kent of New York, one of the leading jurists of the founding period, stated: “As war cannot lawfully be commenced on the part of the United States, without an act of Congress, such an act is, of course, a formal official notice to all the world, and equivalent to the most solemn declaration.” While Kent interpreted “declare” to mean “commence,” he did not assert that the Constitution requires a congressional declaration of war before hostilities could be lawfully commenced, but merely that it be initiated by Congress. What is “essential,” according to Kent, is “that some formal public act, proceeding directly from the competent source, should announce to the people at home their new relations and duties growing out of a state of war, and which should equally apprize neutral nations of the fact.”32 Thus, Congress need not declare war. All that is required under American law is a joint resolution or an explicit congressional authorization of the use of military force against a named adversary.

Louis Fisher in written testimony for a January, 2007 Senate Judiciary Committee hearing:

The breadth of congressional power is evident simply by looking at the text of the Constitution and comparing Article I to Article II. The powers expressly stated give Congress the predominant role in matters of war. However, this purely textual reading misses what the American framers did, why they did it, and how they broke with the reigning British models of executive power. Their study of history led them to place in Congress the sole power to take the country from a state of peace to a state of war. They left with the President, in his capacity as Commander in Chief, certain defensive powers to “repel sudden attacks.”


The framers carefully studied this monarchical model and repudiated it in its entirety. Not a single one of Blackstone’s prerogatives was granted to the President. They are either assigned entirely to Congress (declare war, issue letters of marque and reprisal, raise and regulate fleets and armies) or shared between the Senate and the President (appointing ambassadors and making treaties). The rejection of the British and monarchical models could not have been more sweeping.

With that as background, here’s what the United States Senator who presently chairs the powerful Armed Services Committee read aloud, from prepared opening remarks for a March 8, 2011 full committee hearing March 8, 2011 full committee hearing [only a placeholder page for that hearing remains on the SASC website since the site’s makeover in 2012 or 2013] convened “To receive testimony on the Department of the Navy in review of the Defense Authorization Request for Fiscal Year 2012 and the Future Years Defense Program” (informally, the “Navy posture hearing”) – at about 27 minutes into the recording of the hearing, a few minutes into his opening statement:
Read the rest of this entry »

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(Debating) Filibuster vs. (Optional) Cloture: The Self-Inflicted Catch-22 in Senate Rule XXII

As originally posted in the reader-diary section of; the post’s 2011 comment thread is available at that link.

From Democracy Means Fair Employment Practices Pamphlet No. 198, CIO Education Department, October 1951. (source: Tobias Higbie via Flickr)

This diary is intended – with limited technical detail, so as not to lose everyone in the weeds – to be a guidepost for deciphering this week’s (scheduled) public discussions, and reporting about those discussions, in the Senate – beginning today, Tuesday, January 25th – about how that federal legislative body operates, or should operate. [The 112th Senate met for the first time on January 5, 2011, and then “recessed” until 10 a.m. today – which, under its Standing Rules and precedents, continues the “legislative day” of the Senate’s first session into today’s session, and potentially future sessions, until the Senate formally “adjourns.” As a related aside, I question whether “Jefferson’s Manual” – guidance for a legislative body without any of its own rules – likewise provides that multiple “recessed” calendar day sessions of the Senate, separated by weeks, count as one “legislative day.”]

Included below are a number of facts, about existing Senate rules and practices, which starkly contradict the conventional wisdom generated by reflexively-partisan Senators themselves – as uncritically accepted and repeated by the national media – about what existing Senate rules do and don’t “require.” As most of us recognize, members of the American media today who have relatively easy access to Senators, and to other powerful national figures, rarely meaningfully challenge those privileged to hold such power. That evidently goes double when simplistic, widespread partisan myths have come to predominate and obscure the inconvenient, unspoken truths about the non-partisan institution in which United States Senators serve.

This is one citizen’s informed attempt to publicly state those consequential, unspoken truths, however much they may continue to be studiously ignored by the wielders and courtiers of power in Washington, D.C. – people who are evidently very driven to protect abusive Party practice and privilege, even at the expense of the public, self-governing institution of our federal Senate itself. This diary mostly summarizes; my December diary about Congress focused at length on the alarming fundamentals of its operation today, in both the House and Senate, and further details the dramatic difference between a debating “filibuster,” under the Senate’s simple-majority regular order, and an optional “cloture motion” that seeks to supplant that order with a supermajority voting threshold; and – with regard to the undiminished ability today of a Senate majority, under existing Senate rules, to force the real (debating) filibuster – this technical comment capped an in-depth examination of Senate rules and precedents that selise and I conducted last year in three FDL working diaries.

There have been many misleading claims made, or dishonorably implied, about the Senate and its rules by Senators themselves in recent years, under both Republican (Bill Frist) and, especially, Democratic (Harry Reid) majorities, so it’s difficult to know which myth to address first, or at all. What follows, therefore, in brown text, more or less in order of their appearance, are three of what I consider to be the most prevalent and damaging myths, with the facts, in red and black text, that refute them – facts reported without fear of or favor to any political Party. [As I’ve repeatedly said, any evidence to the contrary about my assertions of fact – anything that I’ve overlooked or misstated – is welcome and invited.]
Read the rest of this entry »

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Lack of Public Debate in the House and Senate Threatens Democratic Self-Government; Both (Power-Centralizing) Parties Impede Its Return

As originally posted in the reader-diary section of; the post’s 2010 comment thread is available at that link.

This diary covers a lot of territory at less than typical ‘blogging speed’ (I doubt that it can be comfortably read in one sitting), in order to provide more context and perspective in one place than is usually provided when its subject matter is discussed in the blogosphere. Though there are related tangents discussed, the core of the diary focuses on the U.S. Congress – the first among equals of our three branches of government, which is now in transition from the 111th Congress to the 112th – and the ways in which the Senate and House today mostly fail, on matters of the greatest consequence to the nation and its people, to operate as designed and intended.

As it happens, just two days ago, on Friday, December 10, Senator Bernie Sanders of Vermont provided a vivid example of the value of public debate in Congress – debate that fosters a better understanding of national policy choices and an informed electorate – which is something that this diary seeks to highlight and extol. [To read the floor remarks of Senator Sanders Friday, click on “Senate” next to December 10 here, then choose Item 12 (“The Economy”) in the subsequent list – you will likely need to go back to the first page and repeat that process a few times as you read through his remarks, because search results on that site time out.]

Senator Sanders so far has in fact done nothing to materially delay (“filibuster”) the business of the Senate, with his eight hours of debate against a profound tax policy change that has bypassed all committees in Congress, and would be unamendable in the Senate – nothing, that is, beyond extending the typical early adjournment of the Senate on Fridays, and thus imposing to some degree on Senate staff and on the Presiding Officer(s). Most of his colleagues, however, had already returned home by early Friday, as usual, having been told Thursday evening that no further votes would be held in the Senate until Monday afternoon. Nevertheless, as I hope this diary makes clear toward its close, what Senator Sanders did on Friday – by actually speaking at passionate length on the floor – was more in the nature of a genuine “filibuster” than anything we’ve seen from the minority Republicans throughout the so-called “record” number of “filibusters” in the Senate under recent Democratic majorities.

Time will soon tell whether Senator Sanders plans to transform his Friday speech into extended public debate and objections which would actually meaningfully impede passage of the tax policy changes he opposes. So far, Sanders – and every other Senator – has already waived the reading of the substitute amendment/deal [SA 4753 to H.R. 4853], and declined to exercise opportunities to delay a final vote on the measure. For example, Sanders gave his consent to waive the rules of regular order for the consideration of legislation, and didn’t object to Harry Reid’s unanimous consent request to immediately accept the motion to proceed to the measure, without debate, last week. As a result, the tax deal was officially placed before the Senate for its immediate consideration as of Thursday, December 9, 2010.

Public objections and further debate from Sanders that actually impede the intended speedy passage of the tax measure through the Senate would indeed amount to a genuine “filibuster,” similar to what Chris Dodd practiced against the FISA Amendments Act in 2008. Sanders also has the looming close of the 111th Congress in his corner to add weight to his delaying tactics, if he’s serious about preventing or delaying passage of the deal (thereby incurring the wrath of many powerful people in and out of the White House). If anyone’s interested in more detail, I can elaborate in comments, and try to answer questions, about what Senator Sanders procedurally did Friday, with his hours of impassioned speaking on the Senate floor against another Obama-driven backroom deal (aka “TARP II” in future, perhaps); what Senate Democrats (specifically, Harry Reid, Max Baucus, Joseph I. Lieberman, John D. Rockefeller IV, Byron L. Dorgan, John F. Kerry, Sheldon Whitehouse, Mark L. Pryor, Robert P. Casey, Jr., Richard J. Durbin, Mark R. Warner, Jeanne Shaheen, Ben Nelson, Evan Bayh, Christopher J. Dodd, Kent Conrad, Jim Webb, Bill Nelson, and Amy Klobuchar) did to preempt the Sanders “filibuster” before it even began (as the Democratic Senate under Majority Leader Reid has done with every threatened filibuster by a minority since 2006, thereby voluntarily imposing supermajority rule on the Senate despite the absence of actual filibusters); and what Sanders may now easily do under Rule 22 (that is, cloture – since those 18-19 Democrats yesterday voluntarily invoked that supermajority rule) to at least significantly delay a final vote on passage of the tax cut deal, beginning at 3 p.m. Monday, when the cloture motion will be voted on by the Senate (assuming that 60 Senators vote to invoke cloture to “stop” the already-ended or suspended Sanders speech, as President Obama and Majority Leader Reid are counting on them to do).

Broadening the discussion of the latest specific Senate action to the more general habits of Congress today, I contend, and try to comprehensively make the case below that, if Americans value liberty and publicly-accountable self-government, we cannot and should not continue to countenance Members of Congress who conceal their actions (or failures to act) in federal office from public scrutiny, as most members of the national political media today help most legislators to do by basically ignoring their daily activities – whether by adopting the media’s obsessive focus on an over-hyped, self-aggrandizing presidency, or otherwise leaving our federal representatives alone to work (or to secretly delegate to others) in the dark. There even seem to be some promising developments from the inside to report that would help us to change the present course of our national legislature: The leadership of the new Republican House, hard as it may be to believe, just might mean what it says about starting to bring the light of day into the backrooms of Congress.

To provide documentation on the subject for both houses of Congress, I include separate summarized examples below of how the House and Senate operate today (including links to detailed explanations I’ve made in the past about how particular pieces of legislation were handled), and focus toward the end on key facts about debate and filibustering in the Senate that are rarely explained by legislators of either Party, and are obviously widely misunderstood (or ignored) by both the public and national reporters based in Washington.

Here’s a statement of what I consider to be foundational truths – truths actively suppressed and disdained by promoters of an undemocratic status quo – about our nation’s system of government:

The importance of Congress is its capacity for diversity and openness (relative to the executive branch) – the opportunity it gives to express different sentiments, opinions, and values. It is a disorderly operation and disappointing to those who want firm direction and quick action. But this free play of ideas, as well as the freedom not to move until the time is right, is essential to democratic government. What is needed from Congress is the daily grind of overseeing administration policies, passing judgment on them, and behaving with confidence as a coequal branch. This takes courage and an understanding of constitutional responsibilities.


Congress must be willing to participate actively in questions of national policy, challenging the President and contesting his actions. It cannot be viewed as quarrelsome behavior for Congress to assess presidential action independently. Issues need the thorough explorations and ventilation that only Congress can provide.
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"Hear me now": THANK YOU, Senator Byrd, and Farewell

As originally posted in the reader-diary section of; the post’s 2010 comment thread is available at that link.

I do not pretend to be able to do justice to the 50-year career of United States Senator Robert C. Byrd of West Virginia – the good, the bad, or the ugly – having witnessed only a fraction of it from a distance. But Senator Byrd’s dedicated public service in and, especially, on behalf of the institution established to self-govern this nation, for almost a quarter of the time our Constitutional Republic has existed, speaks volumes on its own.

Note, though, how some of those who knew him best – those with whom he served – remember him:

[Senator Byrd] had no use for narrow partisanship that trades on attack and values only victory.


"I have lived with the weight of my own youthful mistakes my whole life, like a millstone around my neck," [Senator Byrd] wrote in 2008. "And I accept that those mistakes will forever be mentioned when people talk about me. I believe I have learned from those mistakes. I know I’ve tried very hard to do so."

Senator Kerry, yesterday, June 30, 2010

Though obviously a reference in part to his opposition to the 1964 Civil Rights Act, and his associated hostility to the rights of African-Americans as a young man, if Senator Byrd’s passionate opposition to the invasion of Iraq was in part a response to the lessons he learned from his earlier strong support for the Vietnam War, it appears those words written in 2008 honestly represented his deeds.

Monday, June 28, 2010:

Mr. CARDIN. […] Senator BYRD’s modest beginnings in the hard-scrabble coal fields of Appalachia are well known. After his mother died during the 1918 flu pandemic [when he was about a year old], Senator BYRD went to live with an aunt and uncle who adopted him and raised him in a house without running water or electricity. He pumped gas and butchered hogs. During World War II, he was a welder and built cargo ships in Baltimore and Tampa Bay. After the war, he successfully ran for the West Virginia House of Delegates and, 4 years later, the State’s senate, before entering Congress in 1953.


Senator Byrd married his high school sweetheart, Erma Ora James, shortly after they both graduated from Mark Twain High School–where he was valedictorian–in 1937. He was too poor to afford college right away and wouldn’t receive his degree from Marshall University until 60 years later–when he was 77. In between, he did something no other Member of Congress has ever done: he enrolled in law school–at American University–and in 10 years of part-time study while serving as a Member of Congress, he completed his law degree, which President John Kennedy presented to him. Senator BYRD was married to his beloved Erma for nearly 69 years, and was blessed with two daughters, six grandchildren, and seven great-grandchildren.


He steered the Panama Canal Treaty through the Senate and waged a lonely battle against the war in Iraq, leading an unsuccessful filibuster against the resolution granting President George W. Bush broad power to wage a preemptive war against Iraq. He claimed that his vote against the Iraq war resolution was the vote of which he was most proud [of] having cast over the course of his career. When U.S. military strikes on Iraq commenced on March 19, 2003, [Byrd] stated:

Today I weep for my country. I have watched the events of recent months with a heavy, heavy heart. No more is the image of America one of strong, yet benevolent peacekeeper. The image of America has changed. Around the globe, our friends mistrust us, our word is disputed, our intentions are questioned. Instead of reasoning with those with whom we disagree, we demand obedience or threaten recrimination.


Mr. CARPER. […] I was born in Beckley, WV, just about a dozen miles or so from a community called Sophia, which is where ROBERT and Erma BYRD once ran a little mom-and-pop supermarket back in the late 1930s, early 1940s. I think he was the butcher. He ran that supermarket and later on, I think, in World War II, he was a welder during the war. As we know, in the late 1940s he had the opportunity to run for the West Virginia Legislature and ran. He was a great fiddler and went around his community, his district, playing the fiddle. He always called himself a hillbilly.

Ironically, I was down in the central part of our State [Delaware] just about a month ago and had a chance to attend a picnic for senior citizens, a cookout. A lot of people were there. I was sitting at different tables and walking around. I was sitting at this one table, and I learned this lady sitting to my left was from West Virginia.

I said: Where are you from?

She said: Sophia.

I said: That’s right outside of Beckley, where I was born.

She said: Yes, I knew ROBERT and Erma BYRD when they ran that mom-and-pop supermarket.

I said: You’re kidding.

She said: No, I did.

I asked her to share some thoughts with me about it, and she did.

Two weeks later I was back in the Senate and Senator Byrd was coming in in a wheelchair. In the last part of his life he lost the ability to walk. He never lost his voice, never lost his mind either. But he came in, and I stopped to say hello to him, see how he was doing, and I said: Leader, I just met a woman over in Delaware the other day who knew you from your little supermarket in Sophia, WV.

I told him about it, and he smiled. He said: Do you remember her name? Do you remember her name?

Ironically, I could not remember it. But if I had, he would have. He was amazing.


More than anybody I know, for a guy who was born, orphaned in North Carolina as an infant, who was traded off by his mom in her last will and testament–she wanted him to be raised by her sister [per Senator Reed, actually his father’s sister] who lived in West Virginia, and her sister took this young man in. His name was not Robert Byrd. But she took in her nephew. She and her husband raised Robert Byrd in tough situations, hardscrabble situations, and he sort of raised himself by the bootstraps and worked hard all of his life to make something of his life and to serve as a model for us in the end, and a model for our country.


Mr. ROCKEFELLER. […] After his mother passed away, he was raised by his aunt and uncle, a coalminer he movingly called "the most remarkable man I have ever been privileged to know."


It was at Mark Twain High School where a lifetime of love first began for ROBERT C. BYRD and his future wife, Erma Ora James. Calling her the "wind beneath this byrd’s wings," as he put it, Senator Byrd was never shy to tell you that Erma–a beloved coal miner’s daughter herself–was the reason he reached all of his goals. He believed that with all of his heart. So from the fiddle-playing young man to a history-making American icon, she loved and supported him every step of the way until her passing in 2006.

I know and I observed maybe earlier than some that Senator Byrd lost just a bit when Erma died. Watching him hurting was painful. His wife died from the same disease my mother died from; that is, Alzheimer’s, and we talked about it, especially a few years ago when he was talking more frequently. I always felt bad that I could not give him comfort and that I could not say something to him that would relinquish his pain, which was evident and obvious–very obvious in privacy. But I could not do that because you cannot do that for diseases like that one. There were not words to describe the difficulty such a devastating loss can bring, and I commend my friend for continuing on so strongly–as he did–for so long.

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Senate Parliamentarian: Thank you for answering selise's questions [A second working thread about forcing the (real) filibuster]

As originally posted in the reader-diary section of; the post’s detailed and lengthy 2010 comment thread is available at that link.

Welcome, again, readers and commenters. Your input and feedback, however major or minor, is invited. No question is too obvious, no confusion too petty to mention here. Thank you to all those who participated in the discussion in the earlier thread.

Our first formal working thread on this issue, started last Friday, is available here. There’s a lengthy introduction there, and a lot of detail in the comments, for anyone wondering what this is all about.

Since the comments closed on that thread sometime late Monday, and the Senate Parliamentarian’s office is scheduled to be open today, Tuesday, selise and I thought that another working thread would be in order, until we finally receive (we hope) the definitive answer(s) we’re looking for, and selise is ready to post her Seminal diary based on those answers.

Meanwhile, this was how selise’s first round with a staffer in the Senate Parliamentarian’s office went, on Friday afternoon (the office was apparently closed for four and a half days due to the record D.C. snowfalls):

I was able to connect with the Senate Parliamentarian’s office late yesterday afternoon although I had only a very short moment to talk, and I think so did the person I spoke with (understandable given the week DC has had).


The question I attempted to ask was, of course, about any Senate rules, starting with the two-speech rule, that could be used to put limits on an older-style, debate-based filibuster. There was a bit of confusion, because I apparently wasn’t clear enough that I wasn’t talking about a debate under cloture (alternatively, it may have been that the person I was talking with couldn’t imagine that possibility). When we, I hope but am not sure, got that bit cleared up, he said, regarding the two-speech rule he thought it was probably not workable because, if I understood correctly, it would be hard to enforce. I tried to ask why, but all he said was because of precedent. So of course I asked for a reference on that (which precedent?), but he didn’t have one for me. I ran out of time and I don’t think he was that interested in talking with me — unfortunate, but understandable.


At least I know now that the office should be open next week, and I’ll hope for a better conversation then. – selise, 2/13/10

I’ll try to briefly refocus below on where we are most in need of feedback from the Senate Parliamentarian, after the discussions in the first working thread’s comments.

Working backwards, I left a question hanging at the close of that thread that I think will need to be directly addressed by someone in the Senate Parliamentarian’s office:

Does it stand to reason, or is it logically the case, that actions considered by precedent to be Senate "business" for the purpose of calling another quorum (see list @ comment 65) – and for which the action of a Senator who has been recognized by the Presiding Officer is required – would likewise be considered (first) "speeches" under the two-speech rule – even if the Senator only executes such an action, without saying more – when that Senator is next recognized to speak on the pending question?

If that sounds like Greek to you, I’m sure you’re not alone. That question is part of an effort to, in effect, prove a negative: That, contrary to the conventional wisdom, there isn’t an easy way for a filibustering minority to avoid physically-taxing debate on the Senate floor, by shifting most of the burden of a real filibuster (as opposed to a non-filibuster cloture delay) to the majority.

The allegation that’s been widely made, once the obvious errors in the superficial conventional wisdom case (that a real filibuster is impossible today) are pointed out, is that there are multiple ways for a filibustering Senator (even during a real filibuster) to easily and painlessly avoid debating or speaking by, in particular, gaming the so-called "two-speech rule" that otherwise appears to limit him or her (as enforced by points of order by the majority) to only two speeches per legislative day (meaning, in effect, per filibuster) on the pending question (a bill, an amendment, certain motions, a conference report, a nomination).

A minority trying to shift much of the burden of the filibuster to the majority comes into conflict with the limits imposed by the two-speech rule in various ways.

For example, waiting until some qualifying (as defined by Senate precedent) Senate "business" – which doesn’t include "debate," or "discussion," or making of parliamentary inquiries, or suggesting the absence of a quorum – has been conducted, in the midst of their filibuster, is one requirement that a filibustering minority would need to repeatedly meet each time they wanted to force certain majority-inconveniencing votes or actions (like requesting a live quorum call, which requires 51 majority Senators to present themselves in the chamber to prevent a filibuster-aiding adjournment, or votes on motions to adjourn and motions to recess). But, because of the two-speech rule, if all or most of that qualifying Senate "business" (at least the "business" actions that directly involve a Senator, like offering amendments or making motions or unanimous consent requests) itself qualifies as a "speech" under the two-speech rule and its precedents – even if the Senator says no more than the absolute minimum needed to effect one of those "business" actions – the minority’s opportunities to inconvenience the majority, and make a mockery of both the "two-speech" and "intervening business" rules and precedents, would be drastically reduced (normal tactical moves of each side in a real filibuster excepted).

That’s what my question is getting at. The relative lack of Senate precedent directly addressing the issue leads me to believe that, if such credibility-risking actions were to be undertaken by a supposedly-principled minority forced to actually filibuster in the name of ‘needing more debate,’ they would quickly be reined in by new precedent, if not by existing, long-practiced Senate custom. The same lack of precedent guidance seems to indicate that such a Senate precedent-abusing practice, even if theoretically possible, has not been used in any significant way in real Senate filibusters since 1873.

So that’s one of the key questions we need answered or clarified by the Senate Parliamentarian.

We also need confirmation of the following flat impediment (whether or not this "business" action is itself considered a "speech") to one seemingly-available endrun – at least at a cursory glance, or in the absence of a majority actively contesting a real filibuster – of the two-speech rule, which seems to be evident from Senate rules and precedent:

Amendment, offering of: Can be blocked in multiple ways (to avoid providing the minority with serial opportunities to restart the "two-speech" clock), but most comprehensively by the Majority Leader "filling the (amendment, and maybe motion-to-recommit) tree" before the filibuster begins. [I’ve given lengthier explanations about this elsewhere, most recently here.]

This problem of ‘proving a negative’ as a result of the lack of proof offered by the conventional wisdom case that we’re challenging is itself part of a larger effort to officially rebut widespread claims that – as I wrote in the first working thread diary – the 1930s-era "Mr. Smith Goes to Washington"-style filibuster has somehow been rule-changed out of existence in the modern United States Senate, or is otherwise unfeasible, pointless, or impossible to conduct today under the existing rules.

I yield the floor.

“When a question is pending, and a Senator addressing the Chair concludes his address to the question, and no one immediately seeks recognition, it is the duty of the Chair to state the pending question to the Senate.” Riddick’s Senate Procedure

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Senate Parliamentarian: Please pick up the citizen inquiry phone… [A working thread for selise about forcing the (real) filibuster]

As originally posted in the reader-diary section of; the post’s detailed and lengthy 2010 comment thread is available at that link.

Welcome, readers and commenters.

This ‘working thread’ diary is in furtherance of what amounts to a direct challenge to, and hoped-for dismantling of, one pernicious aspect of the conventional wisdom that’s preached far and wide by the powerful in Washington. Specifically, the aspect of conventional wisdom that claims that the 1930s-era "Mr. Smith Goes to Washington"-style filibuster has somehow been rule-changed out of existence in the modern United States Senate, or is otherwise unfeasible, pointless, or impossible to conduct today.

It’s a working thread where informed and engaged citizen selise hopes – five days after she first started to try to contact him/them in the midst of historic D.C. snowfalls – to finally hear the Senate Parliamentarian’s take on the current feasibility of restoring and forcing the classic real physical filibuster in the Senate. And to hopefully confirm whether or not it is indeed possible (as I’ve asserted) to do so without need to either violate the rules (the "nuclear" option in its various forms) or to change the rules as they presently exist. As part of the drafting process for her own pending Seminal diary that will report on what she’s learned from official sources about the reality of today’s Senate rules as they apply to the real filibuster.

Selise and I and others here at FDL have been actively debating this point for some weeks or months now, have noted the many, often-misleading, takes of others around the blogosphere, and, increasingly of late, tangential comments from Senators themselves, and now selise would like to write a clear and definitive account that even the conventional wisdom-peddlers might have to heed, and which people just tuning in for the first time will be able to grasp. [Altogether, no small task, that…]

Speaking for myself, my interest in a return to the real, physical filibuster is not necessarily in being able to speed (bad, or even good) legislation through the Senate. [Yes, counter-intuitively perhaps, that could very well be the effect of the return of the real filibuster, as compared to the use of the delay-enabling, supermajority-instigating Rule 22 cloture process that’s constantly deployed by the majority to avoid mere threats by the minority to (supposedly) conduct physically-demanding filibusters.] It is also very much not my purpose to enable a simple majority to force its will on the minority at any and every opportunity, without consultation (as is basically, and regrettably, now done in the House), though that too could conceivably become easier to do.

Instead, what I, and I think selise, most want to demonstrate is that there is no present obstacle to the return of routine, simple-majority passage of legislation in the Senate today. No "60 votes" needed. No "67 votes" needed. No rules violation and thus no "nuclear" (in the Republican-majority era) or "Constitutional" (in the Democratic-majority era, as slightly modified) option needed. No rules change at all needed. No cloture motion or cloture vote necessary. Not even any reconciliation bill needed.

What’s needed instead? The courage and resolve of their convictions from majority proponents of legislation, a numerical simple-majority in favor of a proposal, and the will to join, on the Senate floor or off, or at least to endure, genuine public debate on sometimes politically-"tough" and emotionally-loaded subjects, which a real, physical filibuster, if forced to develop (by the withholding of cloture motions), might foster.

Because the alternative to exposing this truth, if it is a truth – the objective of selise’s upcoming diary is to try to ascertain its veracity – is to watch legislation continuing to be unnecessarily modified, and presidential nominations withdrawn, to please an unnecessary supermajority in the Senate – a supermajority that is not needed for the passage of legislation or nominations, so long as the majority is capable of waiting out any real, physical filibusters that may develop.

Ideally, of course [though probably not for rabid partisans allied, formally or informally, with those powerful politicians who control the Parties in Congress], that simple Senate majority first works with that minority, within the democratic confines of the Senate – in public, Democratic-majority committee meetings, and on the floor – without fearing genuine debate, or good faith input from that minority. So that reaching the stage of even a threatened filibuster, never mind a real one, becomes a rare occurrence in the Senate. And so that the segregation by Party recedes even as the Democratic majority maintains and wields the balance of power that the 2008 voters gave the Senate, when minds are being made up and votes are being cast in pre-markup discussions, and on amendments and bills and nominations and conference reports. That objective may (or may not) be furthered by restoring the real possibility that the majority may (force itself to) face the bracing tonic of a genuine, physical filibuster, conducted live on C-SPAN. But for the sake of the added, focused debate alone, it certainly seems worth a shot.

That’s a general summary of the many detailed comments, and a diary or two, that I’ve posted on this subject here, saying the same thing or something similar, in many different ways. So many detailed comments that I’ve started to lose track of which questions readers trying to understand this issue first have on the subject, or want answered, or find the most indecipherable. That’s where readers and commenters and selise’s pending diary come in: No question is too obvious, no confusion too petty to mention here. Lay it on us in the comments, and you will help us to understand what you need to understand, what we may need to further understand about the subject, and how best to shape a coherent explanation of the present state of affairs in the Senate. I’ve publicly asserted this case without being absolutely positive I’m right (since it’s a bit akin to proving a negative), and may thus be publicly proved wrong, but want to be proved wrong, sooner rather than later, if I am wrong.

Without further ado, I’ll post this diary and open the floor to selise to take it away as she sees fit.

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Anatomy of a Backroom Deal’s Public Face: The case for letting Congress do the legislating on health care reform

As originally posted in the reader-diary section of; the post’s 2010 comment thread is available at that link.

In an effort to demonstrate that there is no lack of ideas or will available for the task of health care reform in Congress, if Members are left to their own devices, this diary documents all that was left ‘on the Congressional cutting room floor’ in favor of privately-negotiated, top-down, autocratic deals generated by, and deferring to, the President, his appointees, and the corporate benefactors of America’s two national political Parties.

Wholesale, unquestioning deference to leadership by sheep pens-full of our federal legislators, clustered and bleating together by Party, has been able to thwart the will of most of those (non-leadership) members of the United States Congress of both Parties with ideas of their own on health care reform, because of a Democratic Party leadership that has been allowed to prevent substantive productive debate and deliberation from taking place on the House and Senate floors to improve the legislation.

I contend that simple-majority passage of a genuine health care reform bill is still possible, even without reconciliation, provided that:

A. Democratic Party caucus members stand up for their individual prerogatives as elected representatives of the people, and for their Party platform, despite White House-generated Party leadership pressure to be “loyal” to the Party and its funders rather than to the American people, and

B. Democratic Party caucus members in the Senate insist that their Majority Leader cease his excessive use of the cloture motion, and default instead to real filibusters, while allowing both majority and minority members of the body genuine input into, and the ability to actually change (given simple-majority support), in public, the health reform legislation on the floor, if not in committee.

That same dynamic – otherwise known as “legislating” – would help (the country, if not the Party wars) on every other legislative proposal and Executive nomination yet to be considered by the 59-member Senate Democratic caucus, including policy matters unrelated to the budget, for which reconciliation is not an option. [Reconciliation itself originally being a way of taking Party politics out of “tough” votes to reduce the deficit, by getting around politically-motivated filibusters, real or threatened.]

1. The “Administration” speaking this month (pre-Massachusetts):

Backstage bargains like these kept the [health reform] plan afloat, but at the price of extinguishing some of the best ideas for reducing costs. The White House is unapologetic. “Let’s be honest,” said Rahm Emanuel, Mr Obama’s chief of staff: “The goal isn’t to see whether I can pass this through the executive board of the Brookings Institution. I’m passing it through the United States Congress with people who represent constituents.” That attitude, shot back Bill Galston, one of the slighted think-tank’s senior fellows, all but guaranteed that Congress would duck the hard issues.

2. According to the author of a health care reform amendment adopted by a committee of the House:

“An amendment [authored by Dennis Kucinich] which would have protected the rights of states to pursue single-payer health care was stripped from the [House] bill [by Speaker Pelosi] at the request of the Administration.”

3. At this link are summary descriptions of the 200+ floor amendments filed on this major health reform bill by some of our 435 House Representatives – including many Representatives unable to otherwise influence the bill because they don’t sit on one of the three House committees that marked up the legislation [Education and Labor with its 49 members, Ways and Means with its 41 members, Energy and Commerce with its 59 members]. Yet every one of those amendments was summarily dismissed by the House Rules Committee, except for Stupak/Pitts and a doomed-to-fail Republican leadership “substitute” amendment, and thus never reached the floor of the House for debate or a vote by our Representatives – likely “at the request of the Administration,” but certainly at the direction of the Speaker of the House who has been given iron-fisted control over the Rules Committee (and thus the ability to completely shut down meaningful floor debate and floor amendments, at her sole discretion) in and by the modern House. [A House where the sheep herd continues to dutifully obey commands from on-high, without complaint, while everyone busily points fingers at the Senate.]

[Ironically, the only genuine debate in the House on their “historic” health reform legislation, outside of the three committee markups of the legislation, took place in the small Rules Committee meeting room in the Capitol – where a tiny minority of members engaged each other for more than 10 hours while the Speaker was busy in backroom negotiations with Stupak/Pitts and others, and thus had not yet decided what decree to issue to the Rules Committee (with the sycophantic approval of tuned-out sheep like Earl Blumenauer of Oregon, who fielded a call at home from Speaker Pelosi that night even as his Republican colleague from a huge district in eastern Oregon was doggedly making his case in person to the Rules Committee for relief for rural America, to no avail). The Rules Committee members played their acting roles well, and pretended to listen – the Republican members even meaningfully engaged the witnesses and thus helped ignite genuine debate – to the impassioned arguments of those colleagues who had taken the trouble to come to plead their hopeless cause, as though the majority members were actually independent actors not in thrall to the Speaker. All they asked is that the committee vote to simply allow their amendment(s) to be heard on the House floor – to no avail, save for the few led by Stupak who bravely called the Speaker’s bluff, and were prepared to challenge the Party hierarchy. As soon as the last witness was finished speaking, staffers handed forward to the Chair the multi-page blue document containing the Rule (Jim McGovern sat in for Louise Slaughter, who, along with every other Democratic female, had fled the scene due to the Stupak/Pitts amendment language), with copies for every member, and Rep. Hastings proceeded to read the Speaker’s decree that one, and only one, Democratic amendment on the health reform legislation would reach the House floor, whereupon the remaining Democrats present quickly rubberstamped the Speaker’s decree en masse without comment. Later that day the House dutifully proceeded to “debate” and pass both the Speaker’s Rule and the “historic” legislation in one day’s time (consisting of only four hours of general floor debate on the bill by the 435 members of the House, plus 1.5 hours in advance of votes on the only two amendments made in order, in addition to a single motion to recommit, plus another hour of debate on a separate “doc fix” bill, and the hour of debate on each Rules Committee rule that provided for the disgracefully-limited floor debate time and amendment opportunity on the two pieces of legislation).]

4. Senate Amendment [SA] 2786, filed by Majority Leader Harry Reid on November 19, 2009 (shortly before the Senate’s week-long Thanksgiving break), was the first amendment offered – in the form of a substitute – on the shell bill from the House (H.R. 3590, an unrelated taxing-power bill that the Reid substitute amendment would wholly replace except for title and number) used by Reid as the vehicle – in place of the actual House-passed health reform bill (H.R. 3962) – to present his merged Senate committee product (text available here) to the Senate floor for (supposedly) good faith debate and amendment. Proposed floor amendments to the Reid substitute amendment shortly thereafter began being filed by Senators of both Parties.

5. On December 8, 2009 alone, 78 proposed amendments were submitted on the Reid substitute amendment, beginning with SA 3001 proposed by Senator Hagan (providing for “Improvement in Part D Medication Therapy Management (MTM) Programs”), and ending with SA 3078 proposed by Senators Klobuchar and Snowe (establishing the “Young Women’s Breast Health Education and Awareness Requires Learning Young Act of 2009”). Text of all 78 amendments is available here.

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