Norm Coleman's gracious decision not to make yet another round of fruitless legal challenges to Al Franken's victory gives the Dems a "magical" 60th vote in the Senate. But of course, the day after Joe Biden swears in the former SNL writer, very little will be different from the day before. The 60th vote in the Senate will have moved from being Olympia Snowe to either Ben Nelson, Evan Bayh, or Arlen Specter. The Republican party will require another drubbing in order to put the relevant Senate vote at someone reasonable; if Voinovich, Gregg, Bond, Martinez, Burr, and Bunning are all replaced by Dems, while Dodd, Bennett, and Lincoln all hold on, the sixtieth vote will still be Blanche Lincoln. Byron Dorgan, probably the most populist red-state Senator, would still be five votes away from sixty. Dems would have to (a) defeat David Vitter, (b) invent a Time Machine to let them go back and pick different HHS and DHS Secretaries, (c) hope that Chuck Grassley decides he's tired of feeling like a NAIL and retires, (d) hope to defeat one of the remaining incumbents in Alabama, Alaska, Idaho, Oklahoma, South Carolina, South Dakota, or Utah, and (e) hope all of the winning Democrats are more liberal than Byron Dorgan just to get a sixtieth Senator who's more liberal than Claire "I hope we can fix the [already solicitous of coal interests] cap and trade so it doesn't unfairly punish businesses and families in coal dependent states" McCaskill. There's just not that much that's going to change with Al Franken's victory.
All of which is to say that the fact that sixty votes has become the norm to do anything in the Senate—appoint FEC nominees, pass basically any legislation, confirm judges—is highly unusual and ought to be done away with. If it's not possible to have a filibuster without seeing it abused, then abolish the filibuster or the Senate. The fiftieth Democratic Senator at the moment is probably the aforementioned McCaskill, who for all my carping is decent for a red-state Senator, and after 2011 it would probably be someone like Jim Webb in the worst case and Barbara Mikulski in the best case. That would be change we could believe in.
Perhaps the Senate could be turned into a House of Review by permitting the filibuster for actions that originate in the Senate, but not for actions that originate elsewhere, such as legislation from the House or Judicial appointments.
One way I think this might, just might, have an effect is in terms of internal pressure. Before, the Democrats have been able to blame failed or watered down bills on the need to get bipartisan approval, even from only one or two Republican votes. With sixty votes, there is no excuse for failed legislation, or legislation so weak it can't work, because they do have that filibuster proof majority, and everyone knows it. So that means that any failure to pass good legislation can't really be blamed on Republicans anymore. It's now always gonna be the fault of shitty Dems. And everyone knows this; there's no way to spin it. So, if things still suck in two years, and the agenda Obama was elected on hasn't made head-way, then the people that the voters will blame will be Democrats. Which means lost seats. This might create a stronger impetus among leadership to crack down on rightward drift among individual members, since the caucus as a whole will suffer from such moves. Or it might give individual members the sense that they can't play those games anymore, because they actually will get punished by their constituents for not getting things done.
Of course, this is the Senate, so I am not holding my breath.
Also, I am curious how the Democrats will make use of Franken. Maybe they will just try to disappear him into the background, and those Senators love their seniority. But he has the potential to be a really loud voice for liberal change within the Senate and on the political stage, and due to his background, has the leeway to make the kinds of attacks and arguments that most other Democrats would be afraid of making. He could be the Democrats' bad cop, making fun of Republicans, exposing the nonsense of their professed views, and taunting their allegiance to liars and idiots. The kind of things the polite guys can't do, but that someone needs to be doing. Moving the Overton Window some so that the centrists have room to slip on board for some of those tough votes.
I think the big gain from the hoped-for net pickup of a few Senate seats in 2010 would be that 'centrist' Dems would lose their stomach for joining GOP filibusters, since it would take a few Dem defections on any vote to make a filibuster happen. If we have 64 Dem Senators, then 5 Dems need to be willing to join the GOP filibuster to make it viable.
I think that'll be hard - centrist Dems aren't used to filibustering anything they're against.
And if the filibuster becomes a rarity in the next Congress, the key quantity is the nature of the 50th Dem - which should be pretty decent.
Here's a gambit that the Senate Dems could use to modify or kill the filibuster.
1) They go for the "make 'em filibuster" gambit on some piece of legislation. This requires 50 Dems to be continuously available for a quorum call, while 2 or 3 Republicans can keep the filibuster going indefinitely by taking turns speaking.
But 50 Dems pretend they want this one badly enough that they'll put themselves through that much trouble, even if it only inconveniences a few Republicans.
2) That would just be a stalking horse for their real intent, which would be to vote on a rules change - because 2/3 of those Senators present and voting can change the rules.
So after the 3 Republicans on the floor force another quorum call and the 50 Dems show up, they vote to table the bill that the GOP is filibustering (tabling is a privileged motion), then move to change Rule 22. The rules change passes, 50-3.
And that change could be anything - they could go whole hog and end the filibuster completely, or they could reduce the requirement for cloture to 3/5 of those present and voting, or they could put the onus on the minority, and require the votes of 2/5 of all Senators to block cloture.
But so long as they made it even a bit harder to block cloture, it would be a big win.
But given the Dems' longtime aversion to playing hardball, this won't happen.
l-t c, If all the facts are right on that plan, then kudos. It is just so devious and underhanded and AWESOME...that you just know they won't do it.
Still, one can dream, right?
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