Separation of Powers and the Filibuster

Mark of New Jersey

Mark is a Founding Editor of The League of Ordinary Gentlemen, the predecessor of Ordinary Times.

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13 Responses

  1. Jaybird says:

    Sarah Palin!

    Seriously. One of the main defenses given regarding her resignation from Governor is that she kept having FOIA requests and Ethics Complaints and whatnot and she couldn’t afford to remain in office and so she left for the good of Alaska and whathaveyou, right?

    Why wouldn’t that be a good tactic here?Report

      • Jaybird in reply to Mark Thompson says:

        Pardon. In the Sarah Palin “funk dat” thread, in response to the argument about Sarah Palin abandoning her post, the defense of Sarah Palin was given that she…

        Here. Let me quote Art Deco:
        She and her husband were facing $500,000 in legal bills from defending themselves against bogus ethics complaints, one of which was filed in the name of a character on East Enders. Efforts by supporters to set up a legal defense fund for her were met with…another ethics complaint. She was very explicit about this motivation for leaving office; the book and the speaking fees are meant to pay her lawyers.

        This seems like a *SPECTACULAR* tactic to use against Ben Nelson. What he’s doing is so obviously shady, surely the stuff he keeps hidden is even worse!

        Surely an ethics complaint (maybe we can use a name from Coronation Street!) would be a good start. Wouldn’t this work here?Report

        • Mark Thompson in reply to Jaybird says:

          It’s not so much that it’s shady as this points to a procedural problem with the system. I don’t mind a Senator taking advantages of procedural tools to prevent an outcome he finds undesirable. The objection I have in the instance of confirmations and nominations is that those procedural tools undermine the Constitutional authority of coequal branches in a way that is inconsistent with the spirit of the Constitution. (I don’t think this argument applies in the purely legislative context, though).Report

  2. Koz says:

    I don’t have any particular argument with anything you’ve written here, but as a side note it’s worth mentioning that there is a workaround for filibustering nominations: recess appointments. The reason the executive is hesitant to use them is to avoid gratuitously pissing off the Senate. But if the Senate can hardly be pissed off if they are overusing holds and filibusters to routinely prevent nominations from getting to a vote in the first place. Eg, if Sen Shelby’s holds are appointed by recess appointment, I don’t think anybody except Sen Shelby will be pissed off.Report

  3. greginak says:

    All this makes sense to me Mark. The Senate has worked its rules to maximize power for individual senators in specific circumstances, not for effective governing. Then when each party is pissed they talk about reforms but don’t want to lose their own perks. How to have a useful Senate is not really even in the discussion it seems. I can see a place for the filibuster but only for cosmically major issues and used sparingly.Report

    • Mark Thompson in reply to greginak says:

      I tend to agree with this position, greg. The trouble for me is that I can’t think of any way to procedurally draw the line between cosmically important legislation and less important legislation. So from a rules perspective on the legislative front, you’re left with either no filibuster at all or a filibuster that is rife for abuse. I think the latter is preferable, but it’s a close issue for me. I do think, however, that you can easily craft a rule that draws the line at debate over nominations and appointments.Report

      • greginak in reply to Mark Thompson says:

        I agree that its not really possible to draw a line at what is cosmically important and what is only really really important. Ideally institutional norms would help with that kind of thing, but the senate is way to far gone for that. Having no filibuster will be better if the need for super majorities continues.

        It would also be good if the senate had to confirm far fewer positions. Judges make sense, but most of the other confirmations just seem pointless. Let the prez hire his people for the most part.

        And holds just seem pointless and wrong. Maybe if a hold lasted for a week or a month then had to go to a vote it might be reasonable. As it is now holds are just being abused.Report

  4. mike farmer says:

    We could probably implement coin-flipping for appoinments with no worse results.Report

  5. Barry says:

    Mark: “Despite our system’s use of “checks and balances,” there can be little dispute as to the primary Constitutional role of each branch. The Executive is responsible for the execution of laws that Congress has passed; the judiciary is charged with deciding “cases and controversies”; and the Congress is charged with legislation.

    However, the Executive cannot competently perform its duties if the Senate refuses to confirm a sufficient number of officers to do so. ”

    Please note that ‘the Executive cannot competently perform its duties if the Senate refuses ‘ to pass a budget which allows it to do so; this is *not* a good argument that the Senate should not have the power to pass/not pass a budget.

    Unless ‘advice and consent’ some means ‘required to consent’, confirming nominees is a power of the Senate, every bit as legitimate as the power of the president to nominate people and for good reason – this keeps the Excecutive from appointing whomever he so wishes. And in the case of lifetime-tenured judges, this is even more important; for example Roberts and Alito will shape the country for decades down the road.

    The real problem is that the way the Senate conducts its business is open to one senator holding up anything and everything, with no cost to that senator. This was restrained by custom, until (93-4? under Dole) custom was discarded.

    The apt comparison is by Paul Krugman, to Poland’s Liberum Veto (

    This also has relevance to checking the powers of the Executive; one of the things I realized during the Bush II administration was that checks and balances could neutralize checks and balances – e.g., if a single Senator could block anything, then it’s almost impossible for the Senate to check the Executive, if the Executive has even a minority of Senators supporting him. Beforehand, this meant at least 41, but the recent crap demonstrates that a few would be enough.

    I *would* have said before that a few Senators getting incredibly unreasonable about protecting an abusive president would result in the swift alteration of the way that the Senate did business, but I’ve been dissuaded of that, both during the Bush II admininstration, and in the past year (when it’s been clear that the Senate is almost as incompetant as any example from history one cared to cite).Report