Maddow Provides Smokescreen to Hide Stealth Effort by Democrats to Change Rules in Middle of Game

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Those pesky wabbit Wepublicans, complained MSNBC's Rachel Maddow, always waising the bar on Democrats. 

During her show Aug. 20, Maddow recruited former WNBA player Sue Wicks to shoot baskets in studio to illustrate alleged machinations by the GOP. Here's what Maddow had to say after Wicks nailed one of her shots --

MADDOW: Sinking a shot on a regulation, 10-foot hoop, yeah, it's not a sure thing but with effort and focus you learn how to do it. These are the rules. Or these were the rules, OK?

You know why you never hear about the Senate needing 51 votes to pass anything any more? It's because since the Republicans have been in the minority in the Senate, they've taken a once rarely-used exception to the 51-vote rule and they've turned it into a new rule. It's called the filibuster and it means that the minority won't even allow something to be voted on without 60 senators giving it the nod.

Yes, you heard right -- the filibuster is a "new rule." Only if measured in geologic time, seeing how it's been around since 1916, midway through Woodrow Wilson's presidency. It's a  "new rule" to the same extent that Babe Ruth is a "rising star."

Maddow elaborated further --

Here's a little chart that shows the use of the filibuster over time. You see that huge spike at the end? That's what happened after the 2006 election in terms of use of the filibuster, when the Republicans became the minority in the Senate. That's how frequently they started filibustering stuff. Instead of a filibuster being an exciting, rare exception, when Republicans lost their majority in the Senate, they started filibustering everything, forcing Democrats to get not just a simple 51-vote majority to pass legislation, but the 60 votes that would be needed to break the filibuster. Sixty votes became the new rule. So in other words, they did this ... (rim of basketball hoop raised to 12 feet).

Yeah, they changed a basic rule of the game in order to make it harder for the Democrats to score. And by and large, the Democrats just went along with it! They just accepted that the basket is suddenly 20 percent higher. They've trained themselves to shoot at a 12-foot hoop, even though according to the rules, the basket should be 10 feet high.

Yes, you heard right again -- use of the filibuster prior to 2006 was a "rare exception" to the rule, at least according to Maddow. Which is true -- if one ignores when Democrats resorted to filibusters, as they so often did when Bush was president.

For example, here's what Time magazine columnist Joe Klein wrote about the filibuster in a Dec. 13, 2004 column about then-Senate Minority Leader Harry Reid --

The Senate is the only place in Washington where Democrats, though a minority, can force the Administration to make a deal. They can do so because of arcane rules that require a 60-vote majority to stop a filibuster and get almost anything done. As it happens, the filibuster is a tactic Reid quite enjoys, since it gives him the opportunity to stall proceedings by reading aloud long passages from the book he wrote about Searchlight (Reid's hometown in Nevada).

Maddow's claim about the erstwhile rarity of the filibuster prior to Democratic control of the Senate is refuted by the very chart she presented to viewers, which showed that the number of filibusters increased from 54 to 112 after the 2006 election. In other words, back when the GOP controlled the Senate, Democrats filibustered on average once a week, not counting those month-long summer and holiday season breaks.

After Democrats gained a majority in the Senate, Maddow vented, Republicans filibustered "everything." If so, Democrats previous to this had filibustered half of "everything" by Maddow's own reckoning.

When the GOP threatened to eliminate the filibuster against judicial nominees through what came known as the "nuclear option," the reaction from Democrats was predictably overwrought.

"The vast majority of Americans share our commitment to basic fairness," Ted Kennedy declared in a 2005 Senate speech. "They agree that there must be fair rules, that we should not unilaterally abandon or break those rules in the middle of the game."

Collegiate liberals swung into action, organizing mock filibusters. "The protest is part of an ongoing effort on college campuses nationwide to oppose recent efforts by Republican Senators to prevent Democratic Senators from using filibusters as a means to block President Bush's judicial appointments," reported The Harvard Crimson on May 11, 2005.

"... Thomas R. Jackson '08, a Dems member-at-large, said he read from John F. Kennedy's '40 'Profiles in Courage' to honor the current efforts of Democratic Senators," stated the Crimson with a hint of proprietary pride.

"Sen. Charles E. Schumer '71, D-N.Y., said he appreciates that college students are protesting in favor of filibusters," the Crimson also reported. " 'We have to spread the word all over America that the Republicans are overreaching and eliminating checks and balances. I welcome them,'  Schumer said."

Since then, Schumer has undergone a change of heart on filibusters. "These plans will be considered only as a last resort," Schumer said, as reported in this Aug. 21 story from Kaiser Health News. "But make no mistake, they are on the table."

As if on cue, one of Maddow's guests the following night, Rep. Anthony Weiner, D-N.Y., described how Democrats in Congress could circumvent their once beloved filibuster through a procedure known as reconciliation (second part of embedded video) --

WEINER (responding to a question from Maddow about the so-called Gang of Six in Senate) :  You know, this notion of 80, 60, 75 (votes in Senate), let's try to get what we can from a majority of the House and Senate. We're going to go through this process called reconciliation which allows us to do it with 51 votes in the Senate. Let's use it, let's try to get the best we can here.

But this was never the purpose of reconciliation, as outlined in a New York Times story on Aug. 1 --

Under the Congressional Budget Act of 1974, reconciliation bills were given special Senate protection  and allowed to pass by simple majority votes, after limited debate, to give senators the ability to make the kinds of tough decisions required to cut the deficit.

At the same time, Sen. Robert C. Byrd, Democrat of West Virginia and longtime protector of the prerogatives of the Senate, created a complex set of rules intended to impede those who would dare to use reconciliation to rewrite federal policy rather than produce budget savings.

Back to Maddow on Aug. 20, inveighing against the filibuster and Republican calls for 70 to 80 votes in the Senate for health reform as a sign of bipartisan support --

MADDOW: So before the health care fight, that's where we stood -- Democrats shooting like Sue just did at a 12-foot hoop, a 60-vote, 12-foot hoop. They even went so far as to get 60 Democratic senators elected, which is quite a landmark number if you accept that 60 votes is the new rule for passing anything.

That's where we stood before the health care fight started. Now that we're in the middle of a health care fight, now that we're closer than we have ever been in American history to actually reforming our ruinous, broken health system, Republicans are trying to change the rules again. They have decided that the 60-vote, 12-foot-tall basket isn't enough anymore. Forget the rules, forget the standards, forget that it's a 10-foot hoop, a 51-vote rule, according to the Constitution, right ...?

Not exactly, Ms. Maddow, as you'd learn upon actually reading the Constitution. In my re-reading of the document since your broadcast, I found 11 references to voting by the Senate -- nine of which specified two-thirds' majorities.

A two-thirds' vote is needed to convict an impeached president, for example, to override a president's veto, to name the vice president "acting president" if the president is incapacitated, and to concur with the chief executive on treaties, to cite just a few. Two-thirds' votes were also required to approve the Bill of Rights and to override the post-Civil War, 14th Amendment prohibition against former Confederates holding office.

The two instances of simple majorities required in the Senate are relatively obscure. The 12th Amendment stipulates that if no vice presidential candidate wins a majority in the Electoral College, the Senate shall choose "from the two highest numbers on the list," with two-thirds' of the Senate needed for a quorum (two-thirds yet again) and "a majority of the whole number shall be necessary to make a choice."

The second instance comes in the 25th Amendment, triggered upon a vice-presidential vacancy and a president's nominee approved by "majority vote" in Senate and House.

Arguably the best known example of a simple majority needed in the Senate is to confirm a Supreme Court nominee. Article 2, Section 2 stipulates that nominations are approved "with the Advice and Consent of the Senate," which has long been interpreted as no more than a majority vote. 

Since Maddow is fond of basketball analogies, a better one comes to mind for what constitutes a majority in the Senate. Not every basket is worth two points.