The Rachel Maddow Show | December 11, 2012
>>> well, the white house and the house republicans are mired in that thing that rhymes with fiscal cliff. while that's going on and will keep going on for a while, your united states senate is haggling over something that might be even more important to the health of the republic, at least if in the future we want to, i don't know, solve any problems ever. i'm speaking, of course, of that great scourge the filibuster. that senate only rule that allows any senator in the majority or the minority to force legislation to pass not by the standard 51 votes, but by 60. which for most bills means certain death. rarely do 60 senators agree on anything. and over the last few years, the use and abuse of the filibuster, mainly the not exclusively by republicans has reached record-breaking senate stopping heights. so what do you do? if you are harry reid , lead other telephone democrats in the senate , you try to reform it. and if you're mitch mcconnell , the republican leader who is using it all the time because it is your main kind of power you try to stop reform of it. now there are a couple of plans for changing the fill buster to make it less common or more difficult or even to eradicate it all together. first, there is a lawsuit. a real one. it is in the courts and everything for house democrats and a good governance group called common cause are suing the senate . that court case began this weekend in washington. they argue the filibuster is illegal because it infringes on what they see as a constitutional guarantee of majority rule in congress. the court system has never before entered into the senate 's internal role making, and quite frankly , it is unlikely to do so now. but they're trying. the other track is in the senate . majority leader harry reid keeps threatening to change the rules. he says it will happen at the very beginning of the next congress. the very first item on the agenda. the main idea under consideration, the main way to change the rules comes from oregon democrat jeff merkel. if you want to filibuster, you can't say 60 vote rule, too bad. can't vote on that. you actually have to go down and hold the floor and talk and talk and talk and talk all night and for days and for weeks. you need to work for it. there is merit to this idea. it would make filibusters harder on the minority. it would make them more transparent to the public. it would make them less likely on popular bills, but it wouldn't reverse the transformation of the senate into a place where 60 votes required to get anything done. so there is a proposal that personally i like better. frankly, it's kind of an ingenious proposal. it recognizes that there is general value in protecting the minority's right to be heard. but in order to protect that right, you don't need to make every vote a 60-vote supermajority. this proposal would in one fell swoop end the 60-vote senate , but it would preserve the interested of lengthy debate. a thnd idea doesn't come from outside group or some young radical. it comes from a long-standing highly respected senator. he chairs an important committee. and to his credit, he proposed this idea back in 1995 when he was in the minority. and so it would have hurt him and his party first there is no hypocrisy here. that senator is democratic senator tom harken from the great state of iowa , and he very tonight t o explain his proposal. senator, thank you very much for being here.
>> hey, ezra , nice to be with you. thanks.
>> so tell me, how does your proposed reform work?
>> well, basically, my proposal is, again, as you said, it would still allow the senate to slow things down a little bit. but it would not permit the minority to actually stop something. my proposal is very simple. that on the first vote you would need 60 votes. if you didn't get 60 votes, you would have to wait three days. you could offer it again. then you would need 57 votes. if you didn't get that, you'd have to wait three more days, during which time you could be filibusters. and then after that, you need 54 votes. and then you could continue to filibuster. and after three more days, you just need 51 votes. so that after say about eight or nine days, 51 votes gets to decide what goes on the senate floor. and that's really the essence of it. that it can slow it down, but the minority can't just stop something.
>> you propose this, and i really find this to be a fascinating part of your involvement in this issue you. proposed this in 1995 . democrats were in the minority. what made you believe, what makes you think now that you could live with this in the minority if you were in the minority?
>> i said at the time, ezra , that -- and you can check the record on this. i said at the time that we're like in an arms race. i had been in the minority and in the majority and then back in the minority. and every time it changed, the filibusters kept going up. it was like if the republicans did it to us ten times, well, we'll do it to them 2010 , and then they'll do it to us 40 , and on and on. i predicted at the time if we continue on in this path that the senate basically wouldn't be able to function. little did i know how right i was going to be. and that's what has happened, ezra . in the last three congresses, the minority, the republicans, have basically made a power grab, a power grab that basically says that you have to have 60 votes to do anything. it's a de facto rule. in order to get anything done, you need 60 votes. what they have done is they hijacked, they have hijacked the fundamental principle of our system of government . and that is that a majority decides what you do. they've hijacked that. they have destroyed a tradition of the senate . we had filibusters in the past, but they were used sparingly. during lyndon johnson 's six years asthma jort leader, he had one filibuster. in the six year with harry reid we've had 386 filibusters. the senate has become totally dysfunctional because of this power grab by the minority.
>> and when it comes to protecting minority rights , people say, the one argument you often hear is you might think the filibuster is a good idea now. but let's say democrats had not won the election. republicans had come in with the same 55 vote senate majority you have now. mitt romney was president. health care could be repealed, particularly in the absence of the filibuster. so what do you say to them?
>> what i say to that, ezra , is i'm not afraid of democracy. i said that to majority leader mcconnell on the floor this summer. he was basically saying that, you know, you democrats better be careful. if we take over, we can repeal obama care. my rejoinder to that is if that is what the people vote for at the ballot box , then elections ought to have consequences. now i won't vote for it. i might try to slow it down, amend it, change it. but at least the majority ought to have the right to propose and get their legislation through. i think that's what our system of government is all about. again, as you pointed out, i proposed this when i was in the minority. and i don't think that the minority has anything to fear. you see, our founders set up a very tough system to get a bill passed. look at it. it has to pass the house. it has to pass the senate . and exactly the same form. so if the house and senate disagree, nothing happens. then it has to survive a presidential veto. and then it has to survive court challenges. this was all set up by our founders. the one -- the one thing they did not set up was that you had to have a super majority in which to pass a piece of legislation. now you and i both know that the drafters of the constitution set out five specific times when the senate must have a super majority , five. it's proving treaties, impeaching a president, that type of thing. so really, by inference, the founderses, drafters of our constitution basically said everything else is 51%. passes legislation.
>> well, we will see if it ever gets back there in our lifetime. democratic senator tom harkin , thank you for joining us tonight.
>> thanks, ezra .
>> a lot more public policy news to get to tonight, including the fastest and easiest way for the federal government to deal with the legalization of marijuana in the states. stick around. if you think