The Republicans have been bad. Very, very bad. And nowhere badder than in the United States Senate, where Republicans and their hypocrisy have brought governance to a complete and utter standstill.
Especially anything on the LGBT agenda: ENDA, domestic partner benefits for federal workers, repeal of DADT and DOMA - fuhgeddaboutit. It is not only blocking our agenda -- it's making us fight against each other to decide who among the LGBT community or our Democratic allies is to blame.
Senator Tom Harkin has introduced a bill to stop abuse of the filibuster. Not to eliminate it -- just to stop the abuse of it.
But the weak-kneed Senate "majority" leader (ha-ha) Harry Reid, has said he won't countenance the idea, citing a decades old Senate guideline requiring 67 votes to change Senate rules.
Harry Reid is dead wrong. The 67-vote guideline is there -- but it can be changed by a simple majority of 51 on Harkin's bill. But Harry Reid insists on interpreting this guideline as inscribed in stone. Why does Harry Reid insist on 67 votes? Call Senator Harry Reid and demand that he allow a majority vote on Senate Resolution 416 to amend the filibuster rules. (202) 224-3121.
There's a Facebook page supporting Harkin's bill, of which I just became a fan.
How LGBT Rights Have Been Held Hostage By A Republican Minority
ENDA has well over a majority in the House and the Senate. I don't know the specific numbers on DADT or other bills, but I suspect it's the same story. But we have to get a supermajority in the Senate to win even the simplest and most obvious of rights.
Republicans complain bitterly every time a court rules that constitutional principles of equality require that we give the same rights to gays, lesbian, bisexual and transgenders that we give to everyone else.
"This subverts the will of the majority!" they crow. "Democracy means majority rules!" they shout.
When the Republicans were in power in DC over in the previous decade, they justified their irrational war-mongering, more-money-for-the-rich-business-deregulation, unequal treatment of minority group, screw-the-environment policies by noting that the will of the majority of the House and Senate, democratically elected by the will of the people, had elected them to rule as a majority by the will of God and Nature.
Now, Republicans are abusing the filibuster by invoking it to stop everything from moving in the Senate. By stopping any progress by the Democrats, they can win a majority back by simply point to the lack of progress in Washington and blaming it on Democrats' inability to get anything done. Most people, who don't spend much time thinking about politics, will not remember that it was the Republicans who shut everything down.
The number of cloture motions the majority has been forced to file has skyrocketed in the past 15 years -- by about 75 percent, according to Harkin's estimate. With more than 40 cloture votes since the start of the 111th Congress in January, this Senate is on pace to record the second-largest number of filibuster roll calls.
"In the 71 years since Hollywood filmed 'Mr. Smith Goes to Washington,' the aim of the filibuster has been turned completely upside down," Harkin said.
Just last week, Sen. Richard Shelby (R-Ala.) placed a hold on more than 70 executive nominees in an attempt to draw attention to local projects, which had the potential to freeze the Senate.
It is time to change the filibuster.
If America is a majority rules democracy, and it is -- then why can't LGBT people get equality when the majority of the elected representatives of the people are ready to give it to them? Why is the Senate allowed to continue as a "gentleman's club" where the rights of social minorities can be laughed out of court with no accountability?
What Does Senator Harkin's Bill Do?
The most ingenious thing about Senator Harkin's bill is that it does not eliminate the filibuster. Rather, it only prevents its abuse.
Some will express concern that eliminating the filibuster means that when, as is inevitable, the Democrats lose majority status, then the Democrats will be unable to stop the worst excesses of a Republican majority. This argument holds no water, however, for Senator Harkin's bill does not eliminate the filibuster. (I also note that the last time the Republicans were in power, they overrode the Democratic use of the filibuster many times by simply threatening to eliminate it. The non-aggressive philosophy of the Democrats means that Democrats can't use the filibuster anyway, so it really only benefits Republicans.)
Others will express concern that eliminating the filibuster means that the majority can avoid real debate on controversial issues by simply voting to close down debate. This argument holds no water either, for Senator Harkin's bill does not eliminate the filibuster.
What does Senator Harkin's ingenious bill do? It allows use of the filibuster, but makes it harder to abuse.
If Senator Harkin's bill were designed to prevent abuse of, say, prescription drugs, then the equivalent analogy would be mandating that pharmacies lock away the most-stolen prescription drugs. It doesn't eliminate the use of those drugs for alleviating the pain of ill patients -- it prevents robbers and thieves from stealing the drugs and selling them to drug abusers.
Similarly, Senator Harkin's bill does not eliminate the use of the filibuster -- it prevents the Republican robbers and thieves of democratic institutions from stealing needed legislation and selling them to the highest corporate or fundamentalist bidder.
The procedure: the first vote on a cloture motion -- which ends a filibuster -- would require 60 votes to proceed. If it fails, further debate would be allowed for two more days -- 48 hours of debate. At that point, another cloture vote could be held, but would only require 57 votes to pass. If it fails, further debate would be allowed for another two days. Then another vote could be held requiring only 55 votes -- after two more days, 53 votes, and after two more days, 51 votes.
If the issue is sufficiency of minority debate on controversial issues -- then the minority gets eight days of debate. The filibuster is not eliminated. Only its abuse is curbed.
If, however, the issue is keeping the Senate a "gentlemen's club" where the rules favor doing nothing -- essentially favoring corporations and fatcats and others who abuse the system and don't want their abuses curbed -- then we who favor accomplishing something in DC are arguing with hypocrites.
The 67-vote Rule To Change Senate Rules Can Be Changed By 51 Votes
Don Parker on Huffington Post has an article today citing a Supreme Court ruling, still in force, which explicitly says that Senate rules can be changed by a simple majority of 51 votes, regardless of what prior bills or rules may say.
It is no objection to the validity of a rule that a different one has been prescribed and in force for a length of time....The general rule of all parliamentary bodies is that...the act of a majority of the quorum is the act of the body....No...limitation is found in the federal constitution, and therefore the general law of such bodies obtains.
(U.S. v. Ballin, 144 U.S. 1, 5-6)
To that ancient doctrine, I will add the more recent case from the United States Circuit Court of Appeals for the District of Columbia. In that case, Skaggs v. Carle,
110 F.3d 831 (D.C. Cir. 1997), the House adopted a three-fifths supermajority rule, Rule XXI(5), regarding bills on the specific subject of increasing the Federal income tax.
The Appeals Court acknowledged that there was a constitutional problem with this, but said that there was a simple remedy, and therefore no injury to the people's Representatives.
Rule XXI(5)(c) does not prevent 218 Members set upon passing an income tax increase from working their legislative will. First, the House Rules allow any Member to introduce a resolution to amend or to repeal Rule XXI(5)(c), and any such resolution could be adopted by the vote of a simple majority....For that matter, a simple majority may suspend Rule XXI(c)(5) in order to allow a bill carrying a tax increase to pass by a simple majority vote.
Id. at 835.
This isn't from the Supreme Court, but the United Circuit Court of Appeals for the DC Circuit are pretty high up there in the pantheon of Constitutional gods.
There's much more research to be done on this question of whether the Senate can change its rules by a majority, or must, in the alternative, be hamstrung by some ridiculous super-majority provision.
But it needs to be done.
Harry Reid -- why are you holding up LGBT rights to which you are supposedly committed, because of some decades-old guideline that allows an intrasigent Republican minority to hold up all progress?