Filibuster reform on the table

>>> good morning, from new york. i'm chris hayes . a draft of egypt's new constitution will be delivered to president mohamed morsi today. private first class bradley manning accused of leaking classified documents to wikileaks will return to court in fort meade maryland. right now i'm joined by richard a renberg. allen frumin who retired as parliamentarian of the u.s. senate last year. this is his first interview since then. akil amar and sterling professor of law at yale law school . and msnbc contributor, victoria defrancesco soto. great to have you all here. all right. if president obama wants to get anything done in his second term, democrats in the senate will have to overcome one major obstacle, the filibuster. since democrats took control of both chambers of congress in 2007 , republicans have used the filibuster as a bludgeon against them to pass basic legislation. the senate bills that actually passed has dropped from just over 25% to a record low of 2.8% this year. the rate held steady at 10% through the clinton and bush years and then plummeted when democrats took control of congress in 2007 . that is due in no small part to the filibuster. it's mutated to a routine impediment to legislative progress. it has turned congress into a body incapable of acting except in times of crises. it's just like the fiscal cliff right now. this was designed to force congress to deal with the deficit. now senate majority leader harry reid is proposing changes to the filibuster that might make senate lesseesy. right now senators can block motions to proceed which means the senate can't even debate the legislation in question. president obama realizing the stakes for his second term agenda endorsed those changes on tuesday. white house communications director dan pfeiffer said in a state, the president supports sen tor reid's reform the filibuster. he has a chance to change the filibuster with a 51% majority . he is getting close to getting that majority . republicans, meanwhile, are apoplectic. mitch mcconnell has accused reid of throwing a bomb into the senate . john boehner said he will block it if the filibuster is curtailed. all right. let's start at the most basic principle level. before we get into the weeds of senate procedure and the current reform rules on the table, i would like to put forth the proposition that the filibuster itself is a ridiculous thing that we shouldn't have and that if we -- we have come to see it as normal and it's become normalized because it's existed for a while, there's something to say about tradition, but if we had this stipulation in any other area of democratic governance, we would blanch. for instance, if egypt says you can only be elected president of egypt with 60% of the vote or if we said here in the united states , you can only be elected president with 60% of the vote, imagine the absolute chaos that would throw american democratic processes into. as the man who wrote the book literally, defending the filibuster, make the case why we should have this institution at all.

>> first off, will et me observe that we do elect presidents with less than 50% majority , even presidents who didn't get the most votes. the filibuster isn't the only odd role we have.

>> i agree. i'm going after them one by one.

>> the long history of the senate more than 200 years filibuster has been around for a good deal of that. the role that the senate has played historicallysystem is it's the last place where minority rights are protected. and the twin pillars, the foundation of what makes the senate a unique body is unlimited debate and unfeterred amendment. in the house of representatives , debate is limited, often debates are not permitted at all. in the senate the minority gets to speak, the minority gets to offer its amendments. and these --

>> the filibuster you're saying is the guarantor of that?

>> absolutely. absolutely. it's that super majority requirement to overcome a filibuster that requires the majority in the senate to deal with the minority each and every day.

>> it's a question of debate. what the filibuster means is that in the senate there's no general limitation of debate. it's that one aspect of senate procedure which is deep in the dna of senate procedure. questions are debatable. if questions are debatable, there is no general majority compulsion and the minority has if not rights, certainly privileges and historically for more than 200 years the minority has utilized those privileges in something of an inherent implicit contract with the majority . the majority says you may do this and minority has gone about doing this over the years whether it's a democratic or republican minority with some sense of restraint and some sense of comedy.

>> right.

>> so the majority says you may prevent anything from occurring and the minority --

>> but you're not going to do that because we all have to show up here to work the next day.

>> generally speaking historically minorities have exercised that with some restraint.

>> so as a texan, as a democratic texan i'm hyper sensitive to the protection of minority rights . we haven't elected a democrat statewide office in 20 years. in the house there is a super majority of republicans. in the senate we were two -- the republicans were two votes shy of a 2/3 majority and in the texas senate you have to have a 2/3 majority to bring something to the floor. that's something we cling on to. at the national level, it's different. chris, i know you want to get rid of the filibuster. you're done with it. i think there's moderation. i think in changing the rules you have to be present to filibuster.

>> we're going to talk about what the actual formal proposal, no one except for your humble tv host is proposing scrapping it. i want to push back on one point and then, akil, i'll get your thoughts. i think it's important to distinguish between talking about the minority rights in the context of, say, due process and civil rights , etc. there are rights that protect individual human beings who are maybe on the wrong side of a ma juror taryn democracy but that's very different than the minority party in the legislative body . i don't think they have to get some sort of special protections.

>> they are our voice. they are the voice of the individual.

>> that's what elections are for. that's what elections are for.

>> and, likewise, when we talk about majority rule , we're not necessarily talking about the control by the majority party .

>> right.

>> it's the same principle on the other side.

>> explain that. what do you mean?

>> well, when we talk about the majority , for example, controlling the house of representatives , what we're talking about is the majority party . we're talking about them controlling it quite thoroughly. as long as he can keep his caucus lined up behind him, he can do essentially what he wants. we see, by the way, what happens, you mentioned the texas legislature . we see this in state legislatures in a lot of states across the country where both houses and governor belong to the same party. what did the senators when republicans went after collective bargaining in wisconsin, what did the state senators do?

>> they went out to get a quorum.

>> what would u.s. senators do, get on a barge outside of the territorial waters ?

>> the other thing is scott walker won that election. you should use every procedural mechanism to fight policies that are bad. i support it, if it's in the rules, fine. scott walker won that, he won recall. akil, where's the constitution on this?

>> the constitution is in favor of majority rule . the filibuster is not deep in the dna of the senate . in the entire period before the civil war name me one time when any major bill was prevented from being voted upon at the end of the day by the minority. there is not one. thomasever actually said majority rule is the basic rule. the compromise of 1850 when the senate got a bare majority of free states , when california came in without an offsetting slave state , that made all the difference because here's the balance between majority rule and minority right. minorities should be able to speak, they should be able to make amendments and heard courteously, and then we should take a vote.

>> james madison very quickly, this is federalist 58. the fundamental principle of free government would be reversed he said if you had the sort of super majority threshold. it would be no longer the majority would rule and it would be transferred to the minority. they might take advantage of it to screen themselves from equitable sacrifices or to distort unreasonable indulgences. who could have ever seen this.

>> if you look at the federalist 63 and federalist 65.

>> but i like this one.

>> with due respect, you do not because none of the fell ralist papers champion a super majority rule for the senate and the senate does not have a super majority rule for most of its history.

>> the constitution did contemplate places where there should be super majorities.

>> there are five of them. it's simple majority rule. that's how the supreme court operates, that's how the house operates, that's how the senate in fact operated.

>> hold your thought on responding. we're going to bring in one of the senators who is pioneering and he's been one of the most vocal advocates of reforming the filibuster, not scrapping it. we're talking about how the filibuster has developed, why it needs reform and the best way to