Dr. Jillian T. Weiss

Supermajority Rules: "Majority" Leader Harry Reid Is To Blame For Republicans Holding LGBT Issues Hostage

Filed By Dr. Jillian T. Weiss | February 12, 2010 6:00 PM | comments

Filed in: Politics
Tags: Employment Non-Discrimination Act, ENDA, filibuster reform, Senate, Senate procedures, Tom Harkin

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?


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First you have to want to change.
I see no evidence that Reid thinks the current situation is undesirable.
He's not part of the solution, he's part of the precipitate.

It is true, Zoe, that Reid is part of the problem. However, it is not true that he must want to change. We, the people, can make him change, and stop his foolish upholding of the 67-vote guideline.
51 is a majority of 100. We must teach him the math.

The two parties of the system have a vested interest in keeping themselves entrenched and inviable. Two symptoms of the same disease.
What needs to happen is for the old fashioned libertarian Republicans to leave their party to the neo-fascists. And the progressives need to leave the Democratic party to the Blue Dogs and the ones that are just there because they are anti-Republican.
Allow the Libertarian and Green parties to become large enough to have some real voice in the system and then the extremists will have something to curb them.

Good point, Rob, about the two parties needing to keep themselves entrenched. As someone else noted, Harry Reid is sacrificing us now so that he can keep the filibuster "monkey wrench" when the Democrats finally lose control, which may be sooner rather than later. But in so doing, he is denying his own party victory. People will not respect a party that has accomplished so little, regardless of whose "fault" it is.

I came to the conclusion a long time ago that both the Republican party and Democratic partys are just partying along and are willfully working agianst each other simply to do nothing.

This generation of congress will go down in the history books as a true do nothing congress.

Yes, Gina, I think you're right about the "do-nothing" Congress label. But if we insist enough, we can get them moving. I would like to see a mass protest urging Senator Reid to back off his "the Republicans made me do it" 67 vote position.

It's not Reid's fault.

And it's not a conspiracy by Republicans. It's not just a problem with McCain, or Pelosi, or Boehner, or Obama and Biden, or McConnell. Or even Barney Frank, who never met a betrayal he didn't like. Some are bigots and some pander to bigots. But one and all they're eager cogs in the two party machine. All of them are at fault for institutionalized bigotry and all the other symptoms of a broken political structure like wars and economic failure.

Nor does the fault lie with voters. Those unaware enough to take Civics or Polisci classes seriously often sigh, scold and engage in finger wagging at voters. They're just being silly. Voters are presented, every two, four and six years, with an unending parade of lesser evils, each as bad, or worse, than the last. Anywhere from half to a third of voters wisely boycott elections.

This is not a democracy. Our government is clearly an tyranny of the rich, the looter class. In the roughly 200 years since the Constitution was adopted they've only been beaten on a fundamental question once and that was a regional conflict between slaveowners who wanted to extend slavery to the North and West and most Americans who were horrified by that prospect.

The fault lies with otherwise sane people who advocate votes for the Democrat and Republican parties against our, and sometimes their own interests.

Okay, Bill, I'll go with you on your idea that the problem is the fact that voters put up with a series of bad and worse choices. So let's do something about that -- let's back Senator Harkin's Senate Resolution 416 and make Senator Reid acknowledge that a simple majority can change the rule. This isn't about who's in office so much as about letting them play off each other against the people.

There is no incentive for change so change will not come. As long as the two parties can hold to their "base" to continue to maintain their share of the money that keeps government moving, nothing will change. We can point to one or another who are major stumbling blocks but they are there at the support of the majority of those within their party. In regard to any issue that touches the LGBTQ community, the Republicans will not risk loss of their ultra right wing base who are mostly comprised of the hard core, "gay ain't OK" types. Those who only see people in two flavors, straight male and straight female with anything that does not conform to that view as being in the same league as Voodoo. The Democrats will speak around the issue of equal rights for LGBTQ Americans but they too fear the wrath of the ultra right plus it is a bit of a locked in cash cow for them. They know the LGBTQ people will not end up in large numbers in the party with those ultra right wingers! So all they need to do is make it look like they try to do something from time to time but always snatching defeat from the jaws of victory at the last instant. There seems to be plenty of data to suggest that about 20% out there do not wish to hear anything about what they see as Gay Rights, or degradation of "moral values". We in the LGBTQ Community do not constitute a value over 20% so it is easier to deal with those of us that fall under that umbrella with double talk than it is to risk pissing off those ultra right wingers. The other 70 or so percent are generally kept busy enough trying to keep all the balls in the air in their own lives to notice too much of what is going on in Washington. I might hope that this will change but at the rate it is going, it will take decades before much is really done in my view. Still I call, write and do what I can in the hope I am wrong, that it might change, but after this last go around with ENDA, I have real reservations if I will ever see it passed in my lifetime. I think DADT might be more likely ended but I am of the opinion DOMA will be slower coming than ENDA myself.

The overall record of majority rule on the rights of LGBT folk is rather frightening. Calling for a lasting structural change in governance just because you think it will suit your immediate goal is very shortsighted.

More importantly, as a matter of fact there is no filibuster on ENDA, only the treat of one should the measure be brought to the floor of the Senate. Reid’s fears have led it to be bottled up in committee without a mark up or vote. There is no filibuster to prevent action within Senate committees, that delay is purely a matter of political convenience for the Democratic leadership in the Senate.

The suggested change is not shortsighted, Bob, because the bill does not eliminate the filibuster. Your point is incorrect because it does not address the actual Harkin proposal.

Jillian,

You continue to suggest that "we" can change the minds of US Senators (this time Harry Reid) and that just isn't true. This idea of lobbying has no value for LGBT-issues. It never has and never will. It falsely makes people believe that we can win politically - we cannot.

Last week you scolded Barney Frank for blaming us - for suggesting we didn't lobby enough. He promotes that idea because he's in that game. But, every time I ask people to provide some evidence that lobbying works, we get no evidence. That's because it doesn't work.

There is no political solution to our equality. The sooner we understand that the sooner we will explore other ideas.

It amazes me that so many people wish to continue down the same path, even though we have decades of evidence that that path does not lead to equality.

Until you let go of the false hope of a political solution, you will be unable to explore and understand other possibilities. But, we must find verifiable ways to solve this problem. Continuing to do what we've always done will only provide the same results: frustration.

I am seeking a turning point for our dysfunctional movement. It will require that no matter how many years or how much effort we've put into certain tactics, we must honestly and objectively determine their value or effectiveness.

Our equality depends on the beliefs of our fellow citizens - politics is not the way to demonstrate that, understanding is. Our understanding and our fellow citizens understanding. We can't secure it by lobbying, or protesting or demanding - it can only be done by asking. I suggest the majority of Americans will support us. They're waiting to be asked.

Again, I appreciate your energy and enthusiasm. Nobody can discount that. But, I encourage you to think about actually winning. How and when, that's what we need to figure out.

This is a message that should be heard in many areas, not just the politics here. Process has been elevated above goals and results to the detriment of getting anything done at all. People care more about image and the appearance of doing something than they do about the goal itself.

Activism has become an industry and once that shift occurred, from marching in streets to sitting in an office with a full time job, it was the end of getting anything done. As soon as a movement opens an office in DC its a sure sign that the problem is here to stay forever. The issue is its own business with budgets and revenue and everything that comes with it.

It's win-win for the two parties involved; the entrenched "activists" have jobs and the politicians have their lip service requirement taken care of because the duly unelected representatives of the pesky movement have given their blessing. There is no incentive to do anything.

So along come people like Jillian Weiss who actually want the issue addressed, and it goes nowhere no matter how much passion they have or how righteous the cause. They have been bought off before they started and the money given to their handlers in the professional lobby. It's a way of short-circuiting real change.

As long as people do the same old thing they will get the same old results. Feeling good about yourself is nice, but what matters is the bottom line. There is no other measure of success here.

The democrats have become cowards.

I guess I was so turned off by the years of the GW presidency that I do not recall if he had a "super majority" but I am thinking he did not enjoy that ( thank Gawd). Yet he managed to pretty well stomp the hell out of most civil rights without it. It seems crazy to me that with such a super majority for almost a year the Democrats sat on their hands a great deal ( or did something with them other than passing Legislation anyway). The Democrats can bask in the warmth of knowing that they will likely be put out of office in large numbers if they do not do something positive and that does not mean they should continue to do nothing.

The last time the GOP had a majority as large as the Dems do now, after the MA fiasco, was 1928.

It's misleading to say that the problem with Democrats is cowardice or wimping out.

It's true that they pander to bigots but there are plenty of times when they reach around,discover they have spines and then go to the matresses to defend the looter rich.

Clinton grew a pair when he helped bust unions and export jobs by championing Republican bills like NAFTA and the deregulation that caused todays recession cum depression. He didn't flinch when he ordered the death of about 500,000 Iraqi children by embargoing food, meds and sanitary supplies. Gore and Congress backed him to the hilt.

Obama eviserated health care, promoted and administered the trillion dollar giveaway to cover the losses of the looters and escalated the wars. Biden, the Senator from Bank of America who singlehandedly killed the bankruptcy laws wants us to know that he and Obama are just as ruthless as Cheney. He and the Congressional Democrats support Obama all the way.

The problem is not cowardice, it's that they're on the other side of trenches. They're the enemy.

When the Republicans were the majority, they threatened "Nuclear Option," but the Demowhimps are too afraid to even utter the words.

I was going to say something to the effect of Democrats actually having to want to change the current situation, but I see that's been well covered. So I'll just say it's great that the Constitution does allow a simple majority to change the senate rules. that's a good safeguard.

Monica that they did and they never had to use it as the mere mention of it got there allies on the other side off the fense and voted with them every time.But the current leadership cant even do that just to keep his own party members on the same side go figure.

Caty
Politics is a contact sport with no rules.