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I posted the following on my own blog on Sunday, and also at MyDD. I was going to post it here yesterday but events broke so quickly it became a little dated. Still, some of the points I was trying to make in this are still very much in play:
Why Do Democrats Fear A Filibuster?
Repeatedly, Republicans in the U.S. Senate have shown both their willingness and their ability to muster the 40+ plus votes needed to sustain a filibuster by denying a motion for cloture. As a result several crucial Democratic legislative initiatives, which if polls are to be believed all had strong public support, have expired with a whimper not a bang. And each time the Democratic Senate leadership turns to the public with a collective shrug and says; “We tried but they won’t let us”, while public dissatisfaction with a Democratic Congress continues to grow. It must be frustrating for them. Is it their fault that the American people haven’t elected enough Democratic Senators yet to bring legislation to a vote when Republicans refuse to limit debate? No, it’s their fault for refusing to make Republicans either put up, or shut up.
Each time the Republicans demonstrate that they have the votes they need to filibuster Democratic legislation to death, Democrats respond with an emphatic “there’s really no need to bother” as they move on to the next item on their legislative agenda. From where I sit it seems like they’re all just going through the motions. Democrats propose important legislation which they are confident reflects the will of the people, and then Republicans tap them on the shoulder and say “you don’t have 60 votes”. Democrats respond;”we can’t argue with your math”. The legislation dies, dueling Press Releases get released to the press, and they all move on to repeating the exact same charade with the next important piece of Democratic legislation.
It seems like a “gentleman’s agreement” prevails in the Senate that says in unspoken words, “none of us are up for the stress of a real filibuster anymore, so let’s have cloture votes instead, and if Republicans can muster 40 votes we’ll consider that a substitute for a successful filibuster and save all of us a lot of unnecessary trouble.” Well what’s wrong with that, some might ask? If you know you will lose anyway, why not say uncle early and save yourself an unnecessary fight? I suppose it’s a fair question. When I begin to formulate an answer my mind fixes on an image from many years ago. If you allow me a short digression, I think you will understand why.
It was around 1980 and I was a member of an environmental activist organization that was staging a major protest against a large corporation which we believed was putting both the environment and public health in jeopardy through their actions. The protest campaign was approaching a climax and a decision had been made to attempt to shut down their corporate headquarters for one day through a non violent civil disobedience blockade of all the entrances to their building.
Our organization however faced a dilemma. Our members adhered to a very strict code of non violent conduct which prohibited any activity that might endanger either persons or property. Therefore we ruled out any behavior that would truly make an entrance impassible in case of, heaven forbid, a fire or some medical emergency. So putting Super Glue in locks, chaining of doors, anything like that was simply never an option.
Ideally we would have loved to have hundreds and hundreds of protesters willing to non violently block each of the entrances with our bodies, prepared to be arrested without resistance for our beliefs should police be called upon to remove us. We would have loved to position new waves of protesters to stand by and replace us at the doors when each prior batch got carted off to jail. There was just one small problem with that plan; we didn’t have enough people to pull it off. Turns out we couldn’t muster several hundred protesters willing and/or able to make that commitment at that moment in time; the most we could come up with was several dozen. So we had to find some face saving way to fake it.
The idea we came up with was pretty feeble, but it still seemed better than nothing. We accumulated a number of large collapsed cardboard boxes and a few roles of tape, and took them with us to the corporate headquarters to reassemble there. After arriving our largest group of protesters proceeded to the main entrance and peacefully blocked the doors there, sort of as originally planned, while a few of us headed off toward secondary exits, each carrying a large empty cardboard box in our arms which we planned to pile up by the doors. Not much of a real hindrance true, but we figured at least they would make a momentary, visually interesting symbolic barrier if nothing else.
Turns out the corporation in question feared publicity more than a minor one day disruption of their activities, so they essentially ignored us at their main entrance and directed employees to use side entrances instead. But the strangest thing happened. As the first of our box carriers approached the first side entrance, a company employee quickly shut and locked that entrance from inside, I assume to keep us and our menacing empty boxes safely outside. By the time we made it to the third and final alternate entrance, it was all any of us could do to keep a straight face, because by then it was apparent that all it took to get this corporation to barricade their own entrance for us was the approach of a single straggly protester carrying an empty cardboard box. Wham! Instant lock down.
We never got as far as actually leaving any boxes at the corporation’s door steps, since they effectively closed off their own entrances for us at the mere sight of one. As a result the company never got to see that the threat we bore them was completely hollow. After a couple of hours of successfully playing this game we decided to conclude the protest while we were still ahead, and before anyone actually called our bluff. And we happily went home feeling mission accomplished; with little muss, no fuss, and no jail.
So now when I see Democrats in the Senate pull together a clear majority of Senators behind important legislation that they are confident that the American people strongly support, only to discover a minority of Republicans waving a failed cloture vote in their faces to conjure up the menacing threat of a certain endless filibuster, this is what I think of. I visualize Republican Minority Leader Mitch McConnell marching toward the Senate Democratic Caucus holding a large, empty cardboard box while Democrats scramble to shut down their own initiative in order to avoid it.
Why should Democrats fear an actual Filibuster more than the Republicans? If the Democratic leadership puts the Senate into 24 hour session, it is Republicans who have to make fools of themselves reading from cookbooks in the middle of the night. Forcing the Republicans to filibuster to stop Democratic legislation each time Democrats can’t swing 40 votes to end normal debate on a measure would, I concede, be overly extreme and likely to backfire against them. Never forcing Senate Republicans to follow through on their implied willingness to filibuster critical legislation, I believe, is just as extreme a misuse of majority power. It is a veiled surrender to the extortion of minority intimidation.
There is an important positive message sent when people show a willingness to stand up and fight for something they truly believe in, that to an extent is independent from concerns about the most likely ultimate outcome of that fight. Republicans for the moment are getting a free ride to send that message every time they defeat a motion for cloture on debate of a measure that has the clear support of a majority of the Senate. Republicans assert that they care so passionately about preventing some harm to our Republic that they will filibuster if need be to stop it, and Democrats have still not called that bluff. How many rounds of “we tried but they won’t let us” do you figure it takes before the public starts to hold a Democratic Congress in low regard? Think maybe it’s already gotten to that point? Might the public start to wonder, are Democrats trying hard enough?
Sometimes, not every time but sometimes, begging off from an important fight because it appears unlikely it can be won comes at a higher cost than literal defeat. Sometimes the message is more important than the outcome. All out no holds barred 24/7 filibusters are certainly moments of high political drama, but there are times that are ripe for such high drama, and we are now living in such a time.
It’s true that no one asked for my advice, but if you’ve read this far already I figure you probably won’t object strenuously if I give it. I urge Senate Democrats to go back to wherever it is that they dropped the Webb-Hagel Readiness Amendment after it fell four votes short of the 60 they needed to make it filibuster proof. I suggest that they pick it up and dust it off, maybe give it a few minor cosmetic changes so that they can technically call it “revised”, and then resubmit it to the Senate for renewed consideration. And I suggest they then call the Republican bluff to filibuster against the Webb-Hagel Readiness Amendment if a vote for cloture can not be obtained through less strenuous means.
I guarantee this is one fight that the Republican Party does not want to wage in the spotlight of a real filibuster. They do not want to explain, at filibuster length, how refusing to guarantee our brave and patriotic active duty troops as much time at home following deployment to a war zone as they actually spent in that war zone, before they get shipped back into a war zone again is actually “supporting our troops”. The time has come for Republicans to put up. Or shut up.
Senator Reid, hold your ground if Mitch McDonnell comes marching toward you holding a large cardboard box. This time accept what he has to offer, and call the Senate into 24 hour session, for the purpose of providing relief and a small measure of fairness to America’s brave men and women, who daily risk their lives for our freedom and security. Republicans have much more to fear from staging that filibuster than Democrats do. It would ratchet up the heat on all of their chicken hawk hypocrisy, and show America who really supports our troops, if you called that Republican bluff. It’s their ultimate nightmare. Harry, give them Hell.
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