The filibuster, the debt ceiling, "voting rights" and carve-outs

 There is a very strange argument circulating throughout the political commentariat and the political left regarding the filibuster.  In short, the argument goes like this:  if there can be a filibuster carve-out for the debt ceiling, why not for "voting rights?"  Yes, I am using sarcasm-quotes for "voting rights," because the only real issue associated with the term remains the certification of an official tally, but I'm not going to rehash those issues this morning.  Instead, let's deal with the filibuster.  Again.  What happened with the debt ceiling is very different.  Let me explain why.  If that sounds condescending and pedantic, well, I am a little tired of explaining the filibuster.  This one may get a little rant-y.  I shall try to refrain.  We'll see.

Here is what happened with the debt ceiling.  Recall, first, what the debt ceiling is.  It is the statutory limit on the value of outstanding bonds, which the government uses to finance deficit spending.  Congress directs federal agencies to disburse funds.  Congress directs the IRS to collect taxes to fund those agencies and provide the money to disburse.  Congress directs the Treasury to sell bonds to make up the difference, since it does not permit the IRS to collect enough in taxes to fund the disbursements, but there is a cap on the value of all of the bonds that the Treasury can sell.  That cap is the "debt ceiling."  As long as we are under the debt ceiling, we're fine.  Sort of.  In principle, the national debt may create problems by driving up interest rates and creating a "crowding out" effect, but interest rates aren't going up, so that's not happening now.  It's a possibility, but that's not the point for today.  The point for today is, what happens if we hit the debt ceiling?  Either the agencies cannot disburse all of the money they were directed to disburse (illegal), the IRS takes more in taxes than they were directed (illegal), or the Treasury sells more in bonds than they are allowed (illegal).  You see the problem?  In reality, what happens is that someone doesn't get paid.  Treasury isn't going to sell more bonds, and the IRS isn't going to take more in taxes, so money doesn't get distributed.  We fail to pay our financial obligations.  That's bad.  Who doesn't get paid?  Um... we have no idea, because there is no legal process for determining who is legally owed money, but doesn't get it.  Basically, shitshow.  So, we raise the debt ceiling to prevent a financial shitshow.

If we were smart-- if the Democrats were smart-- we'd just eliminate the debt ceiling.  It is the dumbest law ever.

Instead, we have debt ceiling showdowns and crises every so often.  Oh, no!  Will Congress raise the debt ceiling, or will Republican lunacy cause a fiscal collapse this time because even though they know it's fucking stupid, they just can't help themselves?!

And therein lies the problem.  Most Republicans in Congress, House and Senate, know that the debt ceiling must be raised (or eliminated).  They just don't want to vote for it.  There's a bunch of political science on the difference between legislators' position-taking preferences and their outcome preferences, and I have written about this kind of thing, including in my last book-- Incremental Polarization-- but the basic observation is this.  There are some Republicans who are so fucking stupid that they actually want to breach the debt ceiling.  Your Louis Gohmerts, your Marjorie Taylor Greenes, yeah, they just want to breach the debt celing, but they also don't know there's a "b" in "debt."  So, you know... 

Anyway, though, most of them know that the debt ceiling needs to be raised.  Specifically, now, I'm talking about the Senate.  Mitch McConnell does not want the debt ceiling breached.  He wants it raised.  Why?  He is many things.  Sociopathic, authoritarian, the platonic ideal of "hypocrisy," chinless (because if I'm doing this, I may as well make some jokes about that over which he has no control...).

You know what he isn't?  Stupid.  You know what else he isn't?  Profligate with his own money.  Dude's got money.  And if we breach the debt ceiling, money-go-bye-bye.  As in, that nice stock market we got there?  Yeah, not so much.  So Mitchy-poo had no intention of letting the fuckwit-caucus breach the debt ceiling.  But, he also didn't want to vote for a debt ceiling increase, because the Republican Party has spent the last decade-plus demagoguing the phrase, "debt ceiling," and now they're trapped by their own bullshit.  "Raise the debt ceiling" sounds bad, if you don't know what it means, and silly me, I read, but nobody else does, so they'd rather keep demagoguing it than set the record straight or just eliminate it.

Anyway, the point is that the Chamber of Commerce faction of the GOP wants the debt ceiling raised.  But they don't want to vote for it.  This year's stupid, childish gimmick?  Basically, allowing the Democrats to suspend the rules on the filibuster so that the debt ceiling could be raised on a party line vote.

OK, so let's point out something very important here.  It's called "consent."  You know what consent is, right?  Consent is the difference between felony assault and a sparring match at the gym.  It's the difference between a creepy couple and their icky, creepy games and some really vile crimes.  Consent.  Is this really such a difficult concept?

The rules on the filibuster were suspended for a debt ceiling increase because the GOP consented to it.  They wanted it to happen.  They did a no-means-yes thing.  Mitch explained his safe word to Chuck, in advance, and did not use that safe word.  For the record, Mitch's safe word is "democracy."  True story.

What?!  It's a word he'd never use.

Anyway, the point is that the debt ceiling no-means-yes thing was just some creepy game.  You know, like all of politics.  Mitch wanted it to happen.  If he didn't, it wouldn't have happened.  Most of the GOP wanted it to happen.  Sure, there's a re..... actionary caucus that actually wants the debt ceiling breached, but most of them have a thing called "money."  They also have things called "accountants," which can substitute when they lack these other things called "brains."  They wanted the debt ceiling raised, but they didn't want to vote for it.  So, they created a "carve-out."

When the GOP tells the Democrats, we want X to happen, but we don't want to vote for it, that is rather different from, we do not want X to happen, and we are filibustering X to stop it from happening.

You get that, right?  The difference is consent.  If someone comes up with a silly game to make X happen without the Republicans' votes, they're cool with it in the first instance, and totally not in the second.  Why?  Consent.

OK, so let's be clear on the filibuster, the nuclear option, and how all this stuff works.  First, what is the filibuster?  The House and the Senate work differently.  In the House of Representatives, when you end debate to call for a vote, you use a "previous question" motion.  When the Senate rules were originally written, that motion was excluded.  Why?  That's actually not clear, but it means that debate can, in principle, keep going indefinitely.  Once a senator has the floor, that senator can just keep on talkin', and as long as a senator is talking, a vote cannot happen.  A senator can then yield the floor to an ally, who keeps talking, and with a minimal number of senators, a vote is blocked.  Why?  Because the motion to end debate wasn't included in the rulebook.

In 1917, the Senate introduced a motion to stop this crazy thing, Jane.  The cloture motion.  However, it took a 2/3 supermajority to invoke cloture and end debate.  This was a new rule.  Changing the rules in the Senate required a supermajority itself.  How much of one?  2/3.  But, the observation was that there should be a way to stop a small handful of douchebags.  So, the Senate did.  Then, in 1975, the Senate reduced the threshold from 2/3 to 3/5.  That, too, was a rule change.  This was actually really interesting!  The Senate garnered a 2/3 supermajority to reduce the cloture threshold from 2/3 to 3/5!  Why?  Well, lots of complicated politics in the era, southern filibusters, and all that, but the point is, they did it by the rules.  Incidentally, you may remember the name of the guy behind that one.  Walter Mondale.

The point, though, is that both of those changes were done according to the rules.  The Senate held a vote to change the rules, according to what the rules said about rule changes.  Yeah, lots of circularity.  The rules said that changing the rules required a 2/3 supermajority.  OK, go have fun with the game of Nomic, if you want to play with infinite regress, but not today.  What the Senate did not do was say fuck it, the rules don't exist.

Until 2013.  There was a long history building up to this moment, but here is what happened.  McConnell announced that the GOP would filibuster any and all appointments Obama made to the DC Circuit, which is the second-most important court in the country.  Not because the nominees were unqualified, or anything.  It was a power move.  It was a gambit.  Either Democrats had to invoke the nuclear option in the Senate, or hand complete control of the DC Court to Republican presidents.

I've said it before, and I'll say it again.  When the epitaph for American democracy is written, it will say: "Murdered in cold blood by Mitch McConnell."

Anyway, at the time, the Senate Majority Leader was Harry Reid, and he did not really have much of a choice.  He had to use the nuclear option.  The alternative was handing the DC Circuit to the GOP.  Plus whatever other court McConnell demanded next.

Anyone who actually argues that Reid should have let the GOP have the DC Circuit... really?  Really?  These people should not be indulged.  McConnell would not have stopped there.  He would have demanded the entire Judiciary, seeing the opportunity.  See: Garland, Merrick.

So here is how the nuclear option worked.  When originally conceived, it was conceived by Republicans to counter Democratic filibusters of a small handful of judicial filibusters in 2004 and 2005.  The idea was as follows.  At the time, the Majority Leader was Bill Frist.  Frist would make the following "ruling."  The rules on the filibuster don't apply to judicial nominees.

Um... do they?  Yes.  If you read the rules, yes they do.  Frist would have been a fucking lying sack of fucking shit.  Also, he dissected cats that he picked up from the pound as a way to practice surgery, when he was in medical school.

Yes.  That is absolutely, totally, not a joke.  I swear.  Go look this up.  Fuck Bill Frist.  I don't like humans.  I like cats.

Anyway, back on track.  The Feline Serial Killer would lie his cat-murdering ass off and say that the rules said what they plainly did not say, which was that judicial nominees were exempt from the filibuster.  The Democrats would howl like kitties being tortured and murdered by Bill Frist.  They would demand a formal ruling.  That process would go to the "President of the Senate."

You know who that was at the time, right?

His daughter is currently my politics-crush.

Dick Cheney.  The VP is the presiding officer.  The question goes to Dicky.  Dicky says that judicial nominees cannot be filibustered.  Democrats howl more, like cats continuing to be tortured by Frist.  They demand a vote.  The vote to uphold or reject the ruling of the presiding officer is done on a straight up-or-down vote.  Majority.  Not 2/3, but 50%+1.

So here's the trick.  It takes 2/3 to change the rules, but only the VP + 1 to cheat, and say that the rules don't actually say what they say.

In 2005, the GOP threatened to go nuclear, and the Democrats caved on their filibusters, getting precisely zero in return, because Democrats are shit at everything.  Blah-blah-Gang-Of-14, blah, blah, John McCain sucked, and all of the Republicans who made noises about hating judicial filibusters then... well, you know what happened when the tables turned.

When the tables turned, Reid skipped the formality of asking then-VP Biden to issue the ruling.  He just called for a majority vote in the Senate.  Hence, Democrats could confirm judges (below SCOTUS) and executive branch appointments under a majority rule.

So a few things.  First, note the dramatic difference between throwing out the rulebook, and operating within the rulebook.  The nuclear option means throwing out the rulebook.  It is cheating.  It is lying.  It is saying, the rules don't apply, because there are more of us than there are of you.

This is lying.  This is cheating.  It was forced upon Reid in 2013 because McConnell's move was such a power grab that the alternative was unthinkable.

When the GOP consents to a suspension of filibuster rules, that happens within the rules.  Big difference.

Do... you get that?

That leads to the next difference.  Consent.  The GOP consents now, with respect to the debt ceiling.  They did not consent in 2013, they will not consent to a "carve-out" now, and that's why there's a difference in what is or is not permitted within the rules.  And what happens next.

When Reid used the nuclear option in 2013, his ruling was that it did not apply to SCOTUS nominees.  That fool, Ruth Bader Ginsburg, whom you should stop worshipping-- seriously, take down that shrine, she was stupid and arrogant and narcissistic, and she fucked you-- defended her refusal to step down from the Supreme Court based on the premise that the nuclear option did not extend to SCOTUS, but... how stupid was Ginsburg?  Had she stepped down (before the Senate flipped in 2014), Obama would have named a replacement, the GOP would have filibustered, and Reid would have re-nuked the place.  The whole thing is a cheat, so it isn't as though a new and inviolable rule was written into stone tablets.

A narcissistic fool, who fucked over the country.

Disagree?  How are you liking her replacement?  Raise your hand if you saw this coming?

Are you paying attention, Breyer?  Step down!  Now!  Do not pass go, do not collect $200, do not risk even a single Democratic senator slipping and falling, just step down.

Moving on.  What happened when Trump got his chance to appoint Scalia's replacement?  McConnell used the nuclear option.  The same way Reid did.  It followed inexorably.

Why?  Because there's no such thing as a "carve-out."  As I keep telling you, that's like "just the tip."  There was no "carve-out" for judicial nominees below SCOTUS.  Using the nuclear option below SCOTUS made it inevitable that the nuclear option would be used for the next SCOTUS vacancy.  That next step was unavoidable.  Just the tip?  No.  Bullshit.  Liar.  And anyone who believes that?  Um...

There is no such thing as a "carve-out."  If the Democrats used any form of nuclear option, on any bill, that would be the end of the filibuster, for all legislation.  Why?  Because if the Democrats say, there is a one-time exemption for this bill, then the GOP comes along and says, there's a one time exemption for this bill.  And then a one-time exemption for this bill.  And then a one-time exemption for this bill.  And so on.  That's the end of the legislative filibuster.

You may think you want that, but of course, I can't find many Democrats (other than Manchin or Sinema) who remember all the times Democrats used the filibuster to stop the GOP from doing crazy shit.  They just hear the word, "filibuster," and think "Strom Thurmond."  It is a problem of cognition.  You remember what does happen, but not what doesn't, so you see current politics, you see what you cannot pass, you read about the famous filibusters, but you don't read about the ones that don't get written up in the history books.  And of course, this is all moot anyway since the Dems don't have the votes for any form of fission or fusion anyway, but I'm gettin' slightly off-track.

So anyway, the GOP let the Democrats raise the debt ceiling without going through the normal filibuster hullabaloo because the GOP wanted the debt ceiling raised.  That's the big difference.  That meant the GOP allowed a thing to happen, within the rules.

If you then think to yourself, why can't there be a "carve-out" for this other bill, where the Democrats break the rules, without the consent of the GOP... do you see where you went wrong there?

Laurence Juber, "Rules of the Road."  There are actually two different versions of this one on his album, LJ, with the superior version being the solo version.