Last week the Senate and the Democratic Party were shaken up by the announcement that Evan Bayh, Democratic Senator from Indiana, would retire at the end of his term instead of running for re-election this fall despite $13 million in his campaign warchest and a 20 point lead in the polls. He cited the failure of the Senate to function as his main reason for leaving – ignoring the fact that his brand of centrism helped create the deadlock. Bayh, a “centrist” in name but seemingly a simple political animal in action, had an uncanny ability to annoy the living hell out of the more liberal wing of the Democratic party, his departure was met with something other than anger or dismay from both sides of the political spectrum. I personally couldn’t have been happier to show him the door, despite the chances of his seat turning red in November increasing with his departure.

Because the Washington media loves those like Bayh who position themselves as bipartisan or centrist (especially when it comes to the issue of the deficit), progressives derided his so-called “centrism” as mere political positioning that helped Republicans obstruct Democratic initiatives, and met his exit with a flurry of blog posts with titles like “Bye, Bayh” or “Bayh Low” (“Bayh” is pronounced “Bye” or “Buy” – thus explaining my overly complicated attempt at a joke in my blog title). Ezra Klein called him an “ordinary politician” and a “minor deficit hypocrite”. Jonathan Chait goes farther, and notes that “If Bayh’s loss is a “brain drain,” then the Senate is in even worse shape than I thought.”

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It stands to reason that the complexities of the Senate’s procedures coupled with anger over the stalling of the Health Care Reform bill would lead to some very creative ideas about how to kill the filibuster, and with it, the Senate’s ridiculous supermajority requirement. One argument I have heard many times is that 51 Senators (or 50 plus the Vice President) can basically do anything they want. Now, there is an article by Ian Millhiser in the American Prospect arguing basically that fact:

What the Senate is not allowed to do, however, is tell future senators what rules must apply to their proceedings. Because Reichelderfer prohibits a previous Congress from tying the hands of a future Congress, the rules governing Senate procedure in 2010 cannot bind a newly elected Senate in 2011. The old Senate rules essentially cease to exist until the new Senate ratifies them, so a determined bloc of 51 senators could eliminate the filibuster altogether by demanding a rules change at the beginning of a new session. Once the new Senate begins to operate under the old rules, however, this can function as a ratification of the old rules — essentially locking those rules in place for another two years.

Millhiser is basically arguing that two Supreme Court decisions, Newton v. Commissioners in 1879 and Reichelderfer v. Quinn in 1932, make it possible for each new Senate to eliminate the filibuster, since the new Senate (the next one beginning in January 2011) isn’t beholden to any Senate procedures from previous Senates. (more…)

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Earlier today over at TalkingPointsMemo, a very useful article appeared that clarified most of the questions I had about the filibuster and the procedures as they currently stand.

Sure, in recent years, threats of filibuster have become more and more common — and getting 60 votes for key pieces of legislation has seemed to become evermore necessary. But at the same time, we rarely actually see senators filibustering, at least not like Jimmy Stewart’s character did in Mr. Smith Goes To Washington. Why?

The whole piece is worth a close read – though the title of the article gets to the gist of the matter: “How 41 Senators Control The Country Without Filibustering”. There currently are very few actual filibusters – the mere threat of one is enough to derail legislation (as we are currently seeing with the Health Care Reform legislation that has already passed both Chambers of Congress). (more…)

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