Filibuster Fallacies

 I thought about being cute, and replacing the "f"s with "ph"s in the title, but then I thought about all of the spam comments that I'd have to block.  Not worth it.  Anyway, let's have ourselves a little corrective on everyone's favorite anti-majoritarian procedure, the filibuster.  Books can be, and have been written on the history and development of the filibuster, the question of whether or not it was an accident, and yadda-yadda, but here is the basic rundown.

In the House of Representatives, when they end debate and call for a vote, the motion they use is called the "previous question" motion.  The rules of the Senate, when originally written, did not include a "previous question" motion as a procedure.  That meant that debate did not end until everyone agreed that debate was over.  In 1917, the Senate introduced a motion called the "cloture" motion to end debate, but it required 2/3.  In 1975, that threshold was reduced to 3/5.

In 2013, Senate Republicans announced that they would filibuster any and all nominations Barack Obama made to the DC Circuit Court.  Majority Leader Harry Reid first used the "nuclear option," in response, given that the alternative was handing the second-most important court in the country to the Republican Party, which refused to allow Democratic presidents to make appointments to it.  The "nuclear option" goes as follows.  The Senate rules allow unlimited debate until cloture is invoked by a vote of 3/5.  However, a senator asks the presiding officer in the Senate (as originally conceived, that would have been the VP, as President of the Senate, but when Reid used the nuclear option, he just acted as presiding officer) for a ruling on whether or not the unlimited debate rule applies to X-- X, in this case, being the confirmation of judges below the level of the Supreme Court, and executive branch appointments.  The presiding officer rules that the unlimited debate rules do not apply, even though the rules say otherwise.  The minority party objects, on the grounds that the presiding officer is a fucking liar, which he is.

The vote to uphold the lie, which is the presiding officer's ruling, is a majority rule vote.  When the Senate introduced cloture, and then reduced the threshold from 2/3 to 3/5, those were formal rule changes.  The nuclear option is so called because it is cheating.  It is a lie.  It is looking at the rules and saying, "you see these rules?  They don't say what they actually say.  They say what we say they say.  And we can make them say that because there are more of us than there are of you so fuck you.  Cheating rules!"

And in 2013, the alternative was handing the DC Circuit entirely to the GOP, because of McConnell's blockade.  It was a choice between going nuclear, or ceding the court.  Not much of a choice.

Then, McConnell blockaded the Supreme Court vacancy left by Scalia's death on a new, bullshit rule of no-confirmations-in-election-years.  Of course, he broke that rule, himself, when Ginsburg died (being too stupid and arrogant to step down when Obama could have named a successor, as Breyer is being).  McConnell then used the nuclear option in 2017 to confirm Neil Plagiarist Gorsuch, extending the rule to Supreme Court nominations, and of course, Amy Coney Barrett as an additional fuck-you to Merrick Garland, who is now Trump's defense attorney, showing Rudy how the job is really done.  And Trump still doesn't have to pay!

Anyway, as I have said many times, when the epitaph for American democracy is written, it will say, "Murdered in cold blood by Mitch McConnell."

And yet the legislative filibuster remains.  You can get around it with budget reconciliation, on legislation that is purely budgetary, and doesn't increase the deficit beyond 10 years, but amazingly, even when the GOP was going full batshit under Trump, they didn't nuke the legislative filibuster.

Right now, the Democrats are seething about the filibuster.  With some very bad arguments.

I'll put aside the historical debate about whether or not the exclusion of the "previous question" motion was intentional.  I am undecided on that point, from my reading of the scholarly literature, and it doesn't matter.  Anyone making that claim right now (a) hasn't read the scholarly literature, and (b) would not cede the point if new documents were to emerge, fully refuting the "historical accident" claim, so let's put this in the minor bullshit category.

And we'll move on to fry some bigger fish.

Fallacy The First:  The filibuster is racist!

A few years ago, some crazy guy attacked a George Washington University student with a hammer.  Why?  Um... nuts-o.  Which part of "crazy" didn't you understand?  So when you think of hammers, how central is this incident to your conceptualization?  Was the hammer designed for such purposes?  No.  Some fucking psycho just used it that way because he could, but it is a crude tool that can be put to a variety of uses.  Some good, some bad.  Numerically, if you combine all of the uses of hammers, do incidents like the GWU attack look like representative uses of hammers?  Or let's broaden the scope of our hammer analysis, in this time of our hammer analysis, and you have no idea how much self control it is taking right now... but anyway, hammers can be misused in a variety of ways.  A little to the left, a little to the right, or even just someone with a bad attitude, smashy-smashy, and the hammer has found a time to do some damage.  Do you cherry pick moments when a hammer has been used as a weapon, or something, and then say, a-ha!  This is a hammer!  When you think of a hammer, think of this!

You can probably deduce the direction of my observations from here.  The most famous filibuster in American history is Strom Thurmond's marathon filibuster of a civil rights bill, because that dude really hated black people.  So when you think of the filibuster, think of that!

Same argument.

The filibuster predates legislative efforts to address civil rights.  It was not designed with civil rights in mind.  Numerically, most of the bills and nominees filibustered have had nothing to do with civil rights.

However, right now, it is politically convenient for one side to link the procedure to Strom Thurmond, and to be blunt, voting restrictions that shouldn't pass muster under the Voting Rights Act, and wouldn't have passed muster under the pre-clearance section had that not been struck down in Shelby County.

But that link is specious.  See:  hammers.  But I must not tarry on that subject, because my time is limited.

Fallacy The Second:  The fallacy of the unobserved.

Built into Fallacy The First is the observation that the commentary around the filibuster is empirically blinkered.  If your mind runs straight from "filibuster" to "civil rights," you are missing rather a lot.  And here's the problem.  What the filibuster actually does is stop things from happening, which means that you generally don't observe its consequences from the long view.  We remember the Strom Thurmond shitbaggery, and other such moments in history, but you don't think about all of the bills that just never made it into law because they were filibustered, or all of the nominees who never got confirmed because they were filibustered.  Why?  Because they are the things that didn't happen.  And as I said, by the numbers, most of these had nothing to do with civil rights.

So think about... and I'm sorry to do this to you... Donald J. Trump.  Yeah, I'm sorry.

Look, I already apologized, but I have to do this.

Anyway, for his first two years, he had unified government.  What do you think would have happened without the filibuster?  Keep in mind how off-the-deep-end the GOP has gone, even beyond the fact that it is a Trump personality cult.

Let's start with Obamacare.  I can criticize it all day, but if you are at all a lefty, you probably like it, or are at least net-positively disposed towards it.  You know why they couldn't get rid of it?  The filibuster.  They were stuck using budget reconciliation because of the filibuster, and that meant they were constrained by the Byrd rule-- only budgetary provisions could be included in the bill.  And that meant every time they thought they had an internal deal, the Senate parliamentarian, Elizabeth MacDonough, came along and told them their bill didn't pass parliamentary muster.

And you know what happened then?  They didn't go nuclear.

All those grand plans... up in smoke.

One fuckin' tax bill.  That's all those dipshits got.  Why?  The filibuster.  Think about what you didn't see.  I pose this challenge to you on a regular basis, because it is a critical point.  Do the same thing for the George W. Bush years.  He had unified government for 2002-6, plus a bit at the start, until the Jeffords party switch.

So OK, you lefties.  You think "filibuster," and you then think, "civil rights."  What the fuck were you filibustering in those years?  Actually, I can show you.  Here.  Click on any given Congress, and it'll show you the subject of the cloture motion.  It won't show you the virtual filibusters for which no cloture motion was introduced, but this is a pretty good proxy.

Understanding that, what do you think President Hawley (or whoever) will do with a unified government and no filibuster if the Democrats go nuclear?

Fallacy The Third:  Why are you talking about this when you don't have the votes?

I've covered this before, so I won't belabor the point.  I really don't understand why Democrats keep banging this drum.  Manchin won't vote for the nuclear option, and you have no tools to make him vote yes.

Fallacy The Fourth:  Manchin won't even vote for the underlying bill.

So this is supposedly all about the bills to block states from implementing their voting restrictions.  Some of what is in this legislation is, in my opinion, good and necessary.  Some is stupid.  Some is pointless.  All is irrelevant, because Manchin wouldn't even vote for the legislation.  So suppose you have no filibuster.  Suppose you snap your fingers and make the filibuster go away.  Even though you'd need Manchin's vote for that.  Which you don't have.

The bill still fails.  Then, without the filibuster, President Marjorie Taylor Greene passes a bill to round up all of the jews to investigate those space lasers, because there won't even be a filibuster to stop her.

Fallacy The Fifth:  Fighting the wrong fight.

At some point, I will write in more detail about this, but the voting rights bills are irrelevant.  The problem is the mentality behind them.  Recall the voter ID political fights.  Empirically, as some of us expected, voter ID requirements turned out to be nothing-burgers.  Why?  Chess.  Move and countermove.  Yes, it is a hurdle.  Yes, it is a hurdle that disproportionately affects one group, with a partisan leaning.  The disparate impact aspect makes it unconstitutional.  (To be clear:  the GOP doesn't care about that disparate impact.  They care about party.  The disparate impact is incidental.  However, that is not a constitutional defense, and we have to come back to Cooper v. Harris on this type of thing.)  But you know what?  There's a fucking countermove.  It's called, "mobilization."  A lot of the Stacey Abrams worship in the left drives me nuts, particularly because she has a Trump problem.  As in, she refused to accept the legitimacy of her defeat.  But you know what she did in response to politics that weren't in her favor?  She mobilized people.  Yeah, she whined too, like a fucking whiner, but she did the hard work.  That, I can respect.

Most of what the states are doing... there's a countermove.  Restrictions on extended voting hours?  Drop boxes?  Whatever... there's a fucking countermove.  Don't whine, just make the fucking countermove.  I've played a lot of chess, and I've been down.  You keep playing, motherfucker.  Maybe you lose, maybe your opponent makes a mistake, but you find a counterstrategy.

The real fight?  The mentality behind these bills is the mentality of a refusal to accept an electoral loss.  I was terrified in 2020 that the GOP would steal the election.  They didn't.  I was startled at both the incompetence of the lawyers working on Trump's case, knowing that it was coming months in advance, and the bizarre integrity of state level officials.  That's all changing.

Between January 6 itself, and Trump's inevitable success convincing the dupes who constitute the Republican base of his stolen-election conspiracy theories, state level Republicans aren't going to show anything like that integrity again, for fear of being lynched.  Actually, literally, lynched.  Anyone with a shred of integrity is being driven out of the party, the truly scary parts of the new state rules are the ones that shift authority, and it is looking very much like my 2020 fears were just a couple of years off.

And I simply cannot fathom Republicans peacefully accepting a Democratic victory.

The mentality is the problem.

You're worried about the filibuster?  A few rule changes for which there are countermoves?

That kind of short-sightedness is why Democrats get their asses handed to them by dumbass rednecks who think professional wrestling is real and are too stupid to get that Trump has been lying to them, about everything, all along.

And of course, some bluegrass would be the order of the day.  The ironically instrumental, "Southern Filibuster," by Tut Taylor, from Friar Tut.  Someone out there wants to call this offensive, because filibusters by Southern Senators were used to block civil rights.  This piece is an instrumental.  No talking.  It's called a "joke."  Get it?  No.  Such people had their senses of humor surgically removed.  Bluegrass is supposed to make you happy.  As democracy collapses, we all need something, so stop looking for stupid fights.