the DON JONES INDEX…
		GAINS POSTED in GREEN LOSSES POSTED in RED
	6/18/21… 14,229.90 6/11/21… 14,233.17 6/27/13… 15,000.00
(THE DOW JONES INDEX: 6/18/21…33,823.45; 6/11/21…34,446.24; 6/27/13… 15,000.00)

LESSON for June 18, 2021 – PHILLY BUSTERS!

President Joe go o’er the waves to sup tea with the Queen, parlez-vous with Seven Dwarfs, sharpen swords with Zorro’s Fighting Legions and then do battle with the King of the Underworld in some bank vault deep, deep beneath a mountain. He left behind him a quarrelling quorum of sinister ministers doing the things that best they do… bickering, dickering, then bickering some more... and, now that he’s back, they’re snickering at the mischief they cause.

In the latest development from quarters anon, a Star Chamber of five RINO Republicans (whom true believers despise for their sometimes-treacherous deeds against their Lord of all Lords) and five DINO Democrats (whom the true believers of their faction believe are abusers of widows and orphans and probably in the deep pockets of the loathsome billionaires) has been taking up Biden’s budget, slicing and dicing away until it resembles less an exotic bonsai and more a denuded and depleted Charlie Brown Christmas Tree.

As of a week ago yesterday, a bipartisan group of 10 Senate Democrats and Republicans claimed to have reached a new deal on infrastructure on Thursday, agreeing to a nearly $1 trillion, five-year package to improve the country’s roads, bridges, pipes and Internet connections.

The new blueprint, leaked to the WashPost by four people familiar with the plan, “marks a fresh attempt to resurrect negotiations between congressional lawmakers and the White House after an earlier round of talks between President Biden and the GOP fell apart this week. But it remains unclear if the early accord will prove to be enough to satisfy either the White House or a sufficient number of lawmakers on Capitol Hill at a time when disagreements between the parties are rife.”

The new deal is the product of five right-wing Democrats and five moderate-leaning Republicans: Bill Cassidy (R-La.), Susan Collins (R-Maine), Joe Manchin III (D-W.Va.), Lisa Murkowski (R-Alaska), Rob Portman (R-Ohio), Mitt Romney (R-Utah), Jeanne Shaheen (D-N.H.), Kyrsten Sinema (D-Ariz.), Jon Tester (D-Mont.), and Mark R. Warner (D-Va.).

The White House, last month, had sent Congress a $6 trillion budget plan that, noted Reuters, would ramp up spending on infrastructure, education and combating climate change, arguing “it makes good fiscal sense to invest now, when the cost of borrowing is cheap, and reduce deficits later.”

Biden's plan for fiscal year 2022 called for $6.01 trillion in spending and $4.17 trillion (don’t try this at home) in revenues, a 36.6% increase from 2019 outlays, before the coronavirus pandemic bumped up spending. It projected a $1.84 trillion deficit, a sharp decrease from the past two years because of the COVID-19 pandemic, but up from 2019's $984 billion. Additionally, the White House proposed $1.5 trillion more in “discretionary spending” which enraged Senate Majority Leader Mitch McConnell, who warned Democrats to "move beyond the socialist daydream and the go-it-alone partisanship."

"President Biden’s proposal would drown American families in debt, deficits, and inflation," McConnell tweeted.

Democrats, predictability, blamed the Trump tax cuts for billionaires, vigorously prosecuted and enacted before the advent of the plague.

The latest package is larger than the plan that GOP lawmakers, led by Sen. Shelley Moore Capito (R-W.Va.), had conjured up, proposing more than $300 billion in new spending over eight years, with the rest set to come from regular legislative efforts to fund federal programs in areas like transportation and water. White House press secretary Jen Psaki said that President Joe had “…offered his gratitude to (Capito) for her efforts and good faith conversations, but expressed his disappointment that, while he was willing to reduce his plan by more than $1 trillion, the Republican group had increased their proposed new investments by only $150 billion.”

The Gang of Ten proposed $974 billion in infrastructure spending over five years, which comes to about $1.2 trillion when extrapolated over eight years, according to the sources, who spoke on the condition of anonymity because the details had not yet been released formally. The package includes roughly $579 billion in new spending. Biden’s counterproposal was $2.2 trillion, with roughly $1T in new spending.

Congressional leaders have “a math problem” according to CNBC. To get through the evenly split Senate under the normal process, legislation would need support from all of the Democratic caucus and at least 10 Republicans — or more if any Democrats defect. “If Democrats try to approve legislation on their own using budget reconciliation, they cannot lose a single vote.”

A pair of WashPost opinion columns by Catherine Rampell (6/10 and 6/14 - see Attachment One, A and B) warned that Americans were spending too much for too little, and suggested that Democrats, angered by a Pro Publica primer on how the superwealthy avoid paying taxes and frustrated in attempting to raise income and wealth taxes, could ponder alternatives… a capital gains tax, a death tax, a higher corporate income tax rate.

President Joe, of course, has floated the old, leaky boat of closing loopholes and socking it to the billionaires fingered by Pro Publica. Good luck with that.

“We could also impose a national consumption tax,” Rampell proposes. “Right now, billionaires can fund lavish lifestyles by borrowing at low interest rates against their stock holdings and use this untaxed money to fund things such as mansions or yachts.” A consumption tax would hit such purchases.

“Consumption taxes tend to be regressive, though,” so Rampell suggests that “other policy changes would be required to prevent hurting the poor.”

Again, given that the only agreeable levy Republicans have endorsed was a rise in gas taxes to sock it to the workaday commuters and pandemic-weary Joneses looking forward to a summer vacation: Rotsa ruck!

Those slimy Socialists over at New Republic placed their bloody red fingers on three right-wing Democrats… two of whom have been heavily engorged with the feast of fools presently attempting to thin out the President’s all-you-can-eat buffet of pile-ons and give-aways to the loose and lazy Americans who have been chowing down on the public tab since the onset of the plague – going on eighteen months, now! – to a modest and healthful brunch of tea, toast and a salad of mixed greens with a vinegar dressing. And rather than paying for this meal with a bill of particulars against the billionaires, they propose, instead, a regressive gasoline tax which will fall hardest on the working, lower and middle classes without necessarily doing anything positive about climate change.

House Speaker Nancy Pelosi, D-Ca, at least, predicted a hike in gasoline taxes would not get the White House’s blessing. “The president of the United States has said he would not support any taxes on people making under $400,000 a year, and that includes increasing the gas tax,” she told CNN on Sunday.

But another powerful San Francisco Democrat, Sen. Dianne Feinstein, has a different perspective, one which has landed her on the top shelf of a hit list proposed by Michael Tomasky of the leftist New Republic.

“Democracy is under threat worldwide”, Tomasky believes, adding that it is a good thing to see the leaders of the democratic world, however belatedly, awaken to this reality. “But it’s awfully hard to fight the global threat when the greatest threat to the world’s oldest democracy is not external but internal. And it’s harder still when some of the people who choose to blind themselves to that threat are members of the party that’s supposed to be in the defending democracy business.”

His evidence for the prosecution?

Consider Feinstein, with her imperishable remark last week that “if democracy were in jeopardy, I would want to protect it,” but “I don’t see it being in jeopardy right now.” Dear God! Tomasky gasped. “Where was she on January 6? Having a bowl of bean soup with her pal Chuck Grassley?”

Kyrsten Sinema, another senator most strongly associated with blocking her party’s agenda, is now facing some pressure in Arizona, thankfully. Last week, a majority of the state’s Democratic state legislators sent her a letter saying, basically, cut the crap and take action on the filibuster.

Her home state azcentral.com called Sinema’s contention that “the filibuster is necessary because it is required to preserve cordiality and compromise in the Senate” is laughable except that the lack of cordiality and compromise today is hardly a laughable matter.

She’s not up for reelection until 2024, but whatever power liberals in Arizona have, Tomasky advises, “now’s the time to exert it.”

But, to the Socialist left, the I’m-No-Socialist left and the jus’ plain Merican brayin’ asses pulling that wagon of boraxo; doin’ their hitch in Washington so’s they can afford the shoe leather to walk them over to Congress and back again and maybe a bowl of bean soup at the end of the day, the star of their shoe is that strange aggolomeration of Romeo and Iago… Joe Manchin, whom Tomsky fingered as “the obvious first target.” who “really does seem willing to let the Republicans rig democracy even as he claims to be defending it.” Pretty much ever talking mouth on the planet has spoken and concurred that, for President Joe and his agenda (what remains of it), the Senator from West Virginia is first among equals, the linchpin, He Who Must Be Placated.

Manchin, according to the June 10^th NY Times, has single-handedly punctured what they call the Democrats’ “dreams of sweeping legislative change achieved through repeated 51-vote Senate majorities and instead focus on the realistic options.”

And Fox News chortled that the impotent liberals had been reduced to their usual responses… despair and sarcasm, citing the conservative podcast “Ruthless”, upon which podster Michael Duncan ventured that the Democrats could “throw up all of these trial balloons to test all these different messages” and then “run with whichever one sticks," while his cohort in collusion. “Comfortably Smug” (and refreshingly honest) scoffed: "I don't think our founding fathers anticipated the survival of this Democratic experiment to rest in the hands of a man who lives on a houseboat."

The podcast aired several days before Hamas fighters in Gaza launched a new weapon in their thousand plus year war with Israel… “arson balloons” floated over Jewish settlements in the disputed enclaves.

The Democrats, you see, hold exactly half of the Senate’s one hundred seats which, with the tiebreaking vote of Vice President Kamala Harris… currently bouncing along the border seeking root causes of those iniquities that cause Guatemalans, Salvadorans, Hondurans and more than a few Mexicans to cast aside their heritage, their language, and such miserable possessions as they may have accumulated, and venture north into the belly of the beast… makes for a one-vote majority (the exactly margin, speaking of the Mideast, that the eight little factions amassed to bring down Benjamin Netanyahu in Israel).

Only even if Manchin (and Sinema and Feinstein and several others) are mollified, relief remains a desert mirage a few mountain ranges away. And the cause of that is Mitch McConnell’s threat of a filibuster… that ancient and aweful slayer of majority rule once only invoked during great crises (as in the battle over civil rights in the 50s and 60s, or the so-called "nuclear option," passed 52–48 on November 21, 2013 — with all Republicans and three Democrats opposed — provoked by a flurry of filibusters to sink Obama judges and minor executive branch drudgeons) but still employed, so to speak, on any occasion that Mitchy can seize to fulfill his pledge to obstruct the Biden agenda and despoil his legacy (such as it is) with barely the hint of a risk.

Bad Joe, to the likes of the Bern and the Squad and a few stalwart libs like Chuck and Nancy, Chuck Schumer and Adam Schiff (not to mention George Soros, those Italians and alien snipers with Jewish death-rays mounted on their flying saucers) are only the latest of many obstacles who must be converted, paid off or, in some form or other, dispatched.

That Mitchy hates Joe as much… or almost as much… as he hated Obama was on display during his Monday interview with conservative talk radio host Hugh Hewitt, subsequently reported by Politico. McConnell put the odds of reaching a bipartisan deal at 50-50. But he reiterated that the infrastructure bill can't touch the GOP's 2017 tax cuts and “needs to be credibly paid for."

McConnell would not tip his hand on whether he supports the ten-Senator bipartisan negotiations on Biden's plan for roads and bridges that are being led by Sens. Kyrsten Sinema (D-Ariz.) and Rob Portman (R-Ohio). But a growing number of Senate Republicans are betting that if a deal is reached on that sort of physical infrastructure, Democrats won’t have the votes needed to pass the rest of Biden’s “soft infrastructure” priorities, such as child care and clean energy.

Washington insiders report that Senate Republicans are even considering a “poison-pill” overspending on infrastructure — in part because they think it’ll help kill President Joe Biden’s liberal agenda.

“What’s at stake is perhaps trillions of dollars in spending sought by Democrats to provide paid family leave, raise taxes on corporations and act on climate change. Those policies are more likely to fall by the wayside,” however because… contend Marianne Levine and Burgess Everett of Politico… “though there’s bipartisan hope for physical infrastructure, Democrats’ more progressive priorities have no chance of attracting GOP support.

“The bipartisan framework Portman and Sinema are developing totals $973 billion over five years or $1.2 trillion over eight years, including $579 billion in new spending. That’s more new money than a proposal Sen. Shelley Moore Capito (R-W.Va) presented to Biden earlier in the process, before their negotiations fell apart.

“Despite the increase in the top-line number, even the most conservative Senate Republicans are holding their fire and declining to criticize the proposal.”

They’re letting the “progressives” do that. Sen. Bernie Sanders, a Vermont independent who caucuses with Democrats, told reporters Monday he will not vote for the plan.” (CNBC)

“The bottom line is, there are a lot of needs facing this country,” he said. “Now is the time to address those needs, and it has to be paid for in a progressive way, given the fact that we have massive income and wealth inequality in America.”

Without Sanders on board, Fox snickered, “the bipartisan infrastructure package would need the support of at least 11 Republicans in order to pass the Senate.” This is because McConnell would certainly filibuster any infrastructure deal that transmits one crust of bread from the grasp of the billionaires to the mouth of a hungry child.

Don Jones has heard this and that of the filibuster… more so than at any time in at least a half a century… and he will hear more should President Joe hold his fifty Democrats and/or should he lose a Manchin or Sinema (or, if his capitulations are too excessive) any of a dozen angry liberals.

The concept of the filibuster has been around since ancient Rome, according to the National Geographic (See Attachment Two). “The Roman senate didn’t limit how long its members could speak—a fact that historians believe was first exploited in 60 B.C. by Cato the Younger in a debate over contracts with private tax collectors. Cato also used the filibuster to thwart the agenda of his political enemy, Julius Caesar.”

Both NG and the Senate website (See Attachment Three) attribute the exact nomenclature to pirates of the Caribbean… the real deal and not the Disney version. “Derived from a Dutch word for “freebooter” and the Spanish “filibusteros”—to describe the pirates then raiding Caribbean islands—the term began appearing in American legislative debates in the 1850s. “I saw my friend standing on the other side of the House filibustering,” commented Mississippi’s Albert Brown on January 3, 1853. A month later, North Carolina senator George Badger complained of “filibustering speeches," and the term “became a permanent part of our political lexicon.”

An analysis of filibusterous machinations by brookings.edu (Attachment Four – see site for pictures, charges and graphs) finds that the Senate cloture rule “which requires 60 members to end debate on most topics and move to a vote”—could pose a steep barrier to any incoming president’s policy agenda. Voices on both sides have called for reform in the face of partisan gridlock, and while change may be possible now that Democrats control Congress and the White House, complicated dynamics in the Senate would make it an uphill battle, and brookings notes that use of the Senate cloture rule “has become far more common in the 21st century”... more cloture motions having been filed in the last two decades than in the 80 years prior.

The father of the “modern” filibuster is now familiar to 21^st century Joneses… being none other than the arch-villain (and assassin) of “Hamilton”, Aaron Burr. Although, states the Senate website, the filibuster was used to protect and advance progressive legislation by the likes of Robert LaFollette, Huey P. Long and Wayne Morse (D-Or) whose 22 hour and 26 minute harangue in 1953 was eclipsed by South Carolina's Strom Thurmond, whose filibuster against the Civil Rights Act of 1957 (advocated by John Lewis and Martin Luther King) lasted 24 hours and 18 minutes.

NG’s Amy McKeever, undoubtedly a virtuous and conscientious liberal/progressive has castigated the practice as being, “in essence, a hijacking of debate in the U.S. Senate. It’s also one of the most controversial traditions in American politics.”

Politifact (August 4, 2020, see Attachment Five) acknowledges that filibustering was “closely intertwined with anti-civil-rights efforts in the Senate for more than a century” and, as such, was regarded as an enemy of the people by President Obama, among others, in the course of his funeral oration on behalf of Lewis:

"You want to honor John? Let’s honor him by revitalizing the law that he was willing to die for," the Voting Rights Act. Obama said he supported such policies as automatic voter registration, additional polling places and early voting, making Election Day a national holiday, statehood for Washington, D.C., and Puerto Rico, and an end to partisan gerrymandering.

"And if all this takes eliminating the filibuster – another Jim Crow relic – in order to secure the God-given rights of every American, then that’s what we should do" Obama said.

This whole elaborate bipartisan dance on infrastructure? asks the New Republic’s Tomasky… “That is almost wholly for Manchin’s benefit. The White House needs to prove to him that it tried and tried, and tried, and tried to get 10 Republicans to sign on to the deal, because it seems that only after Manchin is satisfied that the White House has wooed the GOP in every conceivable way, all to no avail, he might finally go along with a Democrats-only reconciliation measure.

Moderates of both parties, seemingly frustrated with the hardliners within and without their own ranks, have also floated some alternative procedures… some rational, some bizarre… to limit the filibuster to occasions where the existential health of America is at risk.

They could just throw up their hands and devolve the matter to the states – one of which, Texas, would be delighted. Gov. Greg Abbott, himself foiled by Democrats walking out and thus killing his voting access bill, vowed to confiscate the salaries of legislators who opposed him. “No pay for those who abandon their responsibilities,” Abbott tweeted as he pledged to veto the section of the budget that funds the legislative branch.

If Democrats can't destroy the filibuster, can they at least lower the threshold for passing legislation to 55 votes? The idea has been floated by two prominent political columnists in recent days — Greg Sargent, a progressive writer for The Washington Post, and Ross Douthat, a conservative at The New York Times.

Sargent quoted Ira Shapiro, former counsel to the late Sen. Robert Byrd (D-W.Va.), who once supported lowering the filibuster from 67 votes to its current 60-vote threshold that has become standard for most Senate bills. Sen. Joe Manchin (D-W.Va.) could conceivably follow in his predecessor's steps by leading the charge to lower the standard by another five votes.

According to Politico’s Zack Stanton, a number of conservatives would be willing to follow Sargent and Douthat into the wilderness of a weak compromise by lowering the cloture threshold to 55 votes.

The New Republic counseled burying unwanted filisubsters under an avalanche of legal paperwork. And the radical left Jacobin even argued that Democrats are too fond of the filibuster to reform or terminate it because it provides a convenient exsuse for their timidity. (See Attachment Six)

Legal challenges? Even a temporary victory against the filibuster in the lower courts, however fleeting, would rock the Senate at least in the duration of this term, scholars say, before the Trump Court ultimately re-greenlights it. It is a worthy thing to start an argument framed not in political but in constitutional terms—in terms not even of majority rule but of the separation of powers. “It is dangerous to think we will be any better placed to get rid of the filibuster after the midterm 2022 elections,” contends a reporter for the New Republic (See Attachment Seven).

On the other hand, there is the option of a strong solution… heading back to the past glories of Thurmond (and Jimmy Stewart) and forcing the filibuster-ers to actually hold the floor for hours… even days… and trust physical exhaustion to secure a deal where moral appeals go to that place most Washingtonian moral appeals go.

An alternate Politico correspondent, Andie Coller, proposed… a dozen years ago, on the occasion of Sen. Joe Lieberman (D-Ct) joining Republicans to filibuster the Obamacare health measure into an early grave (along with certain Americans who would have been tossed out into the streets had it failed)… a cautious approach (citing Sarah Binder, a (female) fellow at Brookings, who contended: “Democrats want to show they can govern. Their party’s reputation depends on their governing.” (See Attachment Eight)

A Jimmy Stewart-style marathon filibuster is unnecessary, inconvenient, exhausting and, most of all, asserted Coller in 2009, risky. The calls of “bring back the bedrolls” stem from the belief that forcing Republicans and their sympathizers to actively stall the business of the Senate with an old-fashioned gabfest would provoke public outrage at the obstructionists and, perhaps, pressure some senators into backing down. Such games of congressional chicken have backfired in the past, however: In 1998, opponents of a campaign finance bill were allowed to filibuster in the hope that they would back down, but after eight failed cloture votes, the bill was pulled from the floor.

“The argument was, ‘Hold Republicans’ feet to the fire,’” said Sarah Binder, senior fellow at the Brookings Institution and co-author, with Steven Smith, of “Politics or Principle: Filibustering in the United States Senate.”

“But they never gave in,” she said.

“It used to be, the only way to stop anything was that: the all-night, all-day, hold-the-floor filibuster,” one Republican leader told Coller. “Whereas now, you need to produce 41. If you can get 41 senators, you can stop it.”

Even History News Network, albeit a decade ago, called the filibuster an “anachronism” better disposed of than reformed. (See Attachment Nine) But that was then and this is now… the rank odor of partisanship so pearmeating Washington that obstruction of governing has become not only the way for lazy legislators to rile up and rally the base, but a virtue in and of itself. Instead of the spectacular verbal endurance tests for which Louisiana Democratic Sen. Huey Long was famous, senators now use “silent filibusters,” in which the opposition announces its intent to filibuster a bill, thereby forcing the party in power to assemble a 60-40 supermajority in order to move forward — even if no one is actually standing up on the floor to stop them.

Conservatives of the stripe of Ross Douthat, George Will and Charles Krauthammer have voiced at least some support for the plan (even if in a defensive stance)

It’s been a strange week in politics – nothing stranger than the coalition of ultra-liberal, ultra-conservative and Arab parties to dispose of Israel’s Netanyahu. Could a bipartisan sellout motivate liberal Dems and die-hard Red Staters to filibuster any compromise?

“Rather than conspiring to drown government in a bathtub — as they’ve tried, and failed, to do since the Reagan era,” suggests Rampell. “Republicans could seek ways to ensure necessary government functions operate more efficiently.”

But where’s the fun in that? A third of America and two thirds of the Grand Old Party cheered on the mob chanting “Hang Mike Pence!” and are refusing to vax themselves based on this or that conspiracy – a fact which the liberal (if institutional) media have avoided mentioning like… well… the plague.

Back in 1783, a bunch of old white men got together and argued for days and something good… although present day intersectionalists and wokesters recoil at the horror… a Constitution of the United States.

“Progressives for weeks have urged Democrats to move swiftly and ditch Republicans in the hopes of getting the most ambitious package possible,” speculated Politico. A spokesperson for Senate Budget Committee Chair Bernie Sanders (I-Vt.) confirmed he'd oppose a bipartisan package, increasing the number of Republicans needed to sign on. “But as of now, it’s not clear that Biden's party has the votes to proceed along party lines while sidestepping a filibuster through the so-called budget reconciliation process, regardless of what it includes.”

In the hours before the Senate adjourned last week — and lawmakers released their compromise — Senate Majority Leader Charles E. Schumer (D-N.Y.) said he was awaiting further details about the deal now taking shape.

“I’ll look at it,” he said. “But we continue to proceed on two tracks — a bipartisan track and a reconciliation track — and both are moving forward.”

But now there is only one track… or the alternative of stopping the democracy train, shunting it off to a side railway and disembarking – acknowledging a lifetime of bootlicking to kings and dictators.

Why not make the sons of bitches do what they did in Philly – if they really believe in their vision, reading the New Haven (hell, why not Chicago!) telephone directory. Or Hamlet, perhaps, or “The Decline and Fall of the Roman Empire”… cover to cover.

At least they’d be earning their pay!

And now, the week in dictatorship and democracy as President Joe tried to convince former friends and current adversaries that America is back…

	JUNE 11 – 17
Friday, June 11, 2021 Infected: 33,437,746 Dead: 599,180 Dow: 34,479.60	Busy day for Joe: tea with the Queen, friendly talks with G-7 and NATO, unfriendly talks with Mister Putin ahead. The G-7ers propose stopping (or at least stalling) their equality race to the bottom by adhering to a 15% minimum corporate income tax. G-7 agrees to match America’s 500M doses for the poor and meets with QE2, Charles and William. But not Prince Andrew. Trumps old DOJ accused of Nixonian spying and subverting Democratic leadership – particularly Schumer and Schiff (who claims to have been “cudgeled”). Congress calls for yet another investigation of Sessions and BillBarr the Barbarian, who seek lawyers. Pundits call Trump “big brother”, but the details sound more like Fredo. More states open up to post-pandemic revels; more disgruntled Americans open fire on others Americans. A mass shooter clocks 13 in Austin, another kills mother, child and self at a Palm Beach Publix after posting on social media that children should be shot. Authorities declare last week’s San Antonio Airport shooter had “Mental Health issues” and a pervo priest claimed that he was just “body anointing” the kiddies.
Saturday, June 12, 2021 Infected: 33,457,410 Dead: 594,672	New unemployment claims dropping for 6^th straight week. Some states cancel the Federal $300 benefit to get the lazy loafers back to work. Bureau of Labor Statistics report that gas is up 5% of late, but used cars are up 30% due to a shortage of computer chips for new cars. Facebook bans Sen. Ron Johnson (R-Wi) for promoting an “alternative” plague treatment. An Orange County (CA) police chief and self-appointed American Phoenix among latest Capitol rioters hunted down and indicted. The real American Phoenix (the city in Arizona) consuming itself in heat (near 120°) and, like the rest of the West, rampant wildfire danger. The hot, hot heat extends all the way north to Billings, Montana (106°).
Sunday, June 13, 2021 Infected: 33,461,982 Dead: 597,769	Watchmen report that half of the 21m stockpiled J&J does are on the verge of expiration, so the company takes swift and decisive action… it pushes the shelf life forward. No problem! Besides, a lot of the vaxxes will be going to foreign paupers, so who cares? Californians wipe the sweat off their brows and celebrate re-opening, giving Gov. Newsome a leg up in his recall campaign. “It’s going to be like the Roaring 20’s again,” predicts a restaurant owner. Maybe he’s referring to the rampant inequality, weirdo “alternate” investments and tommy-gunnings in the street. Texas justice on display as one Houston judge parses the partisanship (labor v. loyalty) and rules that corporations can fire mask-resisting employees. Gov. Abbott, on the other hand, vows to pick up the POThead flag and build (and pay for) that “beautiful wall” on the border all by himself and a deputy is bodycammed tasing a migrant and calling him “El Stupido”.
Monday, June 14, 2021 Infected: 33,467,624 Dead: 600,172 Dow: 34,252.23	Prepping for Wednesday’s summit with Mad Vlad, President Joe dials back on the soulless killer rap and simply says that the Russian dictator is “a different kind of person.” He also says that QE2 “reminds me of my mother.” Another violent weekend careens to a close; Air Rage incidents (mostly mask related) up 5000 percent since the onset of the plague and the FCC raises fines to $50,000 besides, of course, prison time. Georgia grocery cashier tells customer to wear a mask and gets shot and killed. Race War heats up – Ocean City, Md police beat, tase and arrest black vapers while Black Revenge Matters vigilante guns down random white people in Columbus – Phenix City (Ga/Al) and the usual gang retaliation toll doubles 2020s. 8 shot in Savannah, 5 in Cleveland, 4 in Cincinnati, 4 in Yonkers, NY. 16 injured in NYC bus crash that may or may not have been caused by driver-rage. Cybermurder hackers target defibrillators and pacemakers. Killer protest-protester runs down woman protester in Minneapolis; presumed nonpartisan car runs down crowd at racetrack in Texas.
Tuesday, June 15, 2021 Infected: 33,474,734 Dead: 600,272 Dow: 34,299.33	Joe goes to Brussels to meet with NATO allies who express relief that he’s not like his predecessor; then they plot ways to foil the Chinese. Putin dangles two Americans convicted (perhaps rightly) of spying and proposes a prisoner swap, but Biden holds firm that America does not support hostage taking. The New York Times publishes an expose of Jeff Bezos’ Amazon fulfillment centers – run like Soviet era labor camps in Siberia for dissidents. An unnamed thrill-seeker pays 28 million to go into space with the billionaire. Jeff could afford to run through workers like a rich lady buying shoes during the plague, but workers are getting scarcer, wages are rising – which mean inflation is rising. Crude oil prices reach three year high. A shortage of cars to burn the stuff prompts GM to open its own battery and computer chip factories; lumber prices, however, start falling.
Wednesday, June 16, 2021 Infected: 33,498,468 Dead: 600,653 Dow: 34,033.57	The Big Day arrives… Joe arrives in Geneva (w/Blinken) and, after a speech by the Swiss President, closes the door behind himself and Vlad. What transpires is mysterious, so the media and Don Jones are reduced to speculations about who can deliver what “deliverables”, what they are and whether or not they got delivered. Domestic patriots call the President “weak” for calling Putin “formidable”; liberals assail his “betrayal” of human rights. Tough-talkin’ Joe replies that, while he did not threaten Vlad, he did warn him. At the end of the day, the two purported spies, opposition leader Navalny and thousands of dissidents are still in jail. Biden and the Russians go their separate ways and the networks cut to commercials for hotdogs and doggie treats. Back in the USA, the newly divorced and wealth Mrs. Ex-Bezos donates another 3B to charity making Jeffy wince (that’s a thousand voyages into space!). Harvey Weinstein voyages back to a broiling California to face more sex charges. Congress approves a hi-tech skeptic to head the Federal Trade Commission and makes Juneteenth a new Federal Holiday (day off, hooray!),
Thursday, June 17, 2021 Infected: 34,508,867 Dead: 600,924 Dow: 33,823.45	President Joe gets back to work, signing more papers like that confirming Juneteenth (and setting into motion a ball of confusion as some states and localities hastily shut down some functions, either Friday til Monday or maybe Tuesday? And exchanges ambassadors, not prisoners, with Moscow. Some traditional Catholics want him kicked out of the church… and Nancy, too… for not prosecuting abortion cases; liberals warn against “weaponizing the Eucharist”. SCOTUS rebukes Trump with a 7-2 upholding of Obamacare… his own appointees Barrett and Kavanaugh stab their Maker in the back and then go out for prayers and beer. Porn servers tut-tutted for serving up revenge and kiddie porn; Victoria’s Secret tries out a new image featuring butch lesbians and transgenders. In lingerie. More grist for the grievance mill… three Honolulu cops kill 16 year old, five Savannah officers fired after prisoner suicide, Ohio police shoot a bad guy, then “accidentally” run over and kill him with their cop car. Oops! MLB vows to wage war on the spitball.

That the economy, as well as the public health of America is recovering could be gleaned from the import/export data. While Americans were getting back to work and factories getting back to producing stuff to sell to a world still enmired in the plague, there is a risk of inflation (which will manifest next week or the week after), debt and the gridlock in Washington preventing a solution. The Republican club of a filibuster has led ten Senators: five RINO Republicans and the five most conservative Democrats to propose a much sliced and diced infrastructure package which will reveal much about President Joe. We’ll probably have more on that next Lesson.

THE DON JONES INDEX

CHART of CATEGORIES w/VALUE ADDED to EQUAL BASELINE of 15,000

(REFLECTING… approximately… DOW JONES INDEX of June 27, 2013)

See a further explanation of categories here…

ECONOMIC INDICES (60%)

DON JONES’ PERSONAL ECONOMIC INDEX

(45% of TOTAL INDEX POINTS)

CATEGORY	VALUE	BASE	RESULTS			SCORE	SCORE	OUR SOURCES and COMENTS
INCOME	24%	6/17/13	LAST	CHANGE	NEXT	6/11/21	6/18/21	SOURCE
Wages (hourly, per capita)	9%	1350 points	6/11/21	+0.06%	6/25/21	1,444.80	1,444.80	https://tradingeconomics.com/united-states/wages  25.60
Median Income (yearly)	4%	600	6/11/21	+0.03%	6/25/21	670.52	670.73	http://www.usdebtclock.org/   35,504 515
*Unempl. (BLS – in millions	4%	600	6/11/21	+5.17%	6/25/21	345.75	345.75	http://data.bls.gov/timeseries/LNS14000000/  5.8%
*Official (DC – in millions)	2%	300	6/11/21	+0.04%	6/25/21	398.84	399.00	http://www.usdebtclock.org/      9,796 793 789
*Unofficl. (DC – in millions)	2%	300	6/11/21	+0.19%	6/25/21	330.30	330.92	http://www.usdebtclock.org/    17,596 566 533
Workforce Participtn. Number   Percent	2%	300	6/11/21	+0.044% +0.146%	6/25/21	314.77	315.20	In 151,469 528 595 Out 100,078 071 063 Total: 251,599 http://www.usdebtclock.org/ 60.143
WP % (ycharts)*	1%	150	6/11/21	+0.16%	6/25/21	152.23	152.23	https://ycharts.com/indicators/labor_force_participation_rate   61.60
OUTGO	(15%)
Total Inflation	7%	1050	5/21/21	+0.8%	6/25/21	1,000.09	1,000.09	http://www.bls.gov/news.release/cpi.nr0.htm     +0.8
Food	2%	300	5/21/21	+0.4%	6/25/21	281.46	281.46	http://www.bls.gov/news.release/cpi.nr0.htm     +0.4
Gasoline	2%	300	5/21/21	-1.4%	6/25/21	273.77	273.77	http://www.bls.gov/news.release/cpi.nr0.htm      -1.4
Medical Costs	2%	300	5/21/21	nc	6/25/21	286.77	286.77	http://www.bls.gov/news.release/cpi.nr0.htm     +0.0
Shelter	2%	300	5/21/21	+0.4%	6/25/21	292.27	292.27	http://www.bls.gov/news.release/cpi.nr0.htm     +0.4
WEALTH	(6%)
Dow Jones Index	2%	300	6/11/21	+1.81%	6/25/21	377.41	370.59	https://www.wsj.com/market-data/quotes/index/DJIA 33,823.45
Home (Sales) (Valuation)	1% 1%	150 150	5/21/21	- 2.66% +3.80%	6/25/21	170.00 171.95	170.00 171.95	https://www.nar.realtor/research-and-statistics      Sales (M):  5.85 Valuations (K):  341.6 nc
Debt (Personal)	2%	300	6/11/21	+0.09%	6/25/21	273.33	273.08	http://www.usdebtclock.org/    64,482 542
	AMERICAN ECONOMIC INDEX (15% of TOTAL INDEX POINTS)
NATIONAL	(10%)
Revenue (trilns.)	2%	300	6/11/21	+0.007%	6/25/21	293.31	293.33	debtclock.org/       3,429.75 430
Expenditures (tr.)	2%	300	6/11/21	-0.08%	6/25/21	221.20	221.03	debtclock.org/       6,709.80 715
National Debt tr.)	3%	450	6/11/21	+0.11%	6/25/21	323.67	323.30	http://www.usdebtclock.org/    28,390 421
Aggregate Debt (tr.)	3%	450	6/11/21	+0.15%	6/25/21	363.99	363.45	http://www.usdebtclock.org/    86,873 87,001
GLOBAL	(5%)
Foreign Debt (tr.)	2%	300	6/11/21	+0.03%	6/25/21	294.36	294.44	http://www.usdebtclock.org/   7,044 046
Exports (in billions)	1%	150	6/11/21	+2.50%	6/25/21	182.08	182.08	https://www.census.gov/foreign-trade/index.html 205.0
Imports (bl.)	1%	150	6/11/21	- 0.22%	6/25/21	120.61	120.61	https://www.census.gov/foreign-trade/index.html 273.9
Trade Deficit (bl.)	1%	150	6/11/21	- 7.98%	6/25/21	100.39	100.39	https://www.census.gov/foreign-trade/index.html   68.9
	SOCIAL INDICES (40%)
ACTS of MAN	(12%)
World Peace	3%	450	6/11/21	+0.4%	6/25/21	393.03	394.60	Tired of being ignored and overshadowed, NoKo’s Kim promises strange damage to be inflicted upon his enemies – everybody. EU and NATO and G7 welcome America back to reality with a real President who speaks and understands English.
Terrorism	2%	300	6/11/21	-0.2%	6/25/21	238.10	237.62	Pro-Palestinian demonstrators block Israeli ship in Oakland and launch arson balloons over Tel Aviv, drawing retaliatory rockets and ending the truce.
Politics	3%	450	6/11/21	+0.4%	6/25/21	434.69	436.43	Joe does London… and Brussels… Geneva. Keystone pipeline killed, environmentalists rejoice.
Economics	3%	450	6/11/21	+0.2%	6/25/21	403.39	404.20	Americans quitting their jobs at 30 year high. Hiring (if they can) Uber and Lyft short on drivers, so they raise prices to achieve short-on-customer parity. Not hiring: nail salons in San Francisco trumping Bezos by are replacing people with robots.
Crime	1%	150	6/11/21	+0.3%	6/25/21	248.76	248.01	Make-a-Wish CEO busted for embezzlement. With 6000% spike in air rage incidents, FAA raises fines to $50,000. America has a post-plague epidemic of murders (see above).
ACTS of GOD	(6%)	(WITH, IN SOME INSTANCES, A LITTLE… OR LOTS… OF HELP FROM MEN, (AND A FEW WOMEN)
Environment/Weather	3%	450	6/11/21	-0.1%	6/25/21	411.01	410.60	More schools opening up. Illinois chemical plant fire spreads clouds of toxic smoke. Then the heat moves east… There are also cicadas… but some Americans have a remedy: they eat them.
Natural/Unnatural Disaster	3%	450	6/11/21	+0.1%	6/25/21	409.37	409.78	Dozens escape as NY/NJ ferry sinks. Icelandic drone captures sensational volcano footage, but is martyred in the process. Lightning kills Jersey golfer and cicadas, flying into Cincinnati car, cause it to crash and kill the driver.
LIFESTYLE and JUSTICE INDEX			(15%)
Science, Tech, Education	4%	600	6/11/21	-0.2%	6/25/21	666.67	665.34	Chinese astronauts fly up to their very own space station. Pfizer promises to back-to-back vaxx back-to-school kids… in September. (Meanwhile, millions of doses are due to expire!) Amazon’s “Alexa” exposed as a snitch, disseminating client dirt to neighbors… the company says it’s to recover lost pets??!!?
Equality (econ/social)	4%	600	6/11/21	-0.2%	6/25/21	565.54	564.41	Deliberate protester-rammin’ in Minnesota, accidental crowd crash car in Texas.
Health Plague	4%	600	6/11/21	-0.2% +0.1%	6/25/21	504.76 - 101.49	503.75 - 101.39	Philips’ carcinogenic sleep apnea cleaning units and respirators recalled as are many toxic cosmetics. With elective surgeries surging post-plague, Red Cross reporting blood shortages. NovoVax struggles to gain approval to be Number Four. Plague reaches and crosses 600K death barrier. Two cruisers on Swiss vessel get it and are dumped in Sicily, after which the ship sails on.
Freedom and Justice	3%	450	6/11/21	+0.3%	6/25/21	457.28	458.65	“Get Out of Jail” cards passed round! Socialite cleared of killing police chief in Belize. Brother of gymnast Simone Biles acquitted of triple murder. Trump cleared of accusations he ordered clearing of DC park for his photo op with the Bible.
	MISCELLANEOUS and TRANSIENT INDEX (7%)
Cultural incidents	3%	450	6/11/21	+0.2%	6/25/21	513.32	514.35	“In the Heights” hits the depths with an $11M opening. With Osaka dropping out (mean journalists) and Serena dropping out (ie losing), French Open victors are Djokovich and Kraj-something (hell, the real losers are tongue-twisted broadcasters). Danish soccer star drops out (dead) onfield with heart attack, but survives. Armie Hammer drops into rehab to deal with his cannibalism issue. Essential Quality wins the Belmont; Wasabi, the Pekinese, best in show at Westminster. RIP former NY Giants’ coach Jim Fassell,
Miscellaneous incidents	4%	450	6/11/21	+0.3%	6/25/21	479.23	480.67	Anti-social media posts banned by You Tube – no ads for alcohol, tobacco and gambling. Firearms OK. RIP Clarence “Mod Squad” Williams, “Network” and “Deliverance” actor Ned Beatty. Welcome Aboard: Harry and Meghan’s Baby Lilibet.

The Don Jones Index for the week of February 19th through February 25th, 2021 was DOWN 3.27 points.

The Don Jones Index is sponsored by the Coalition for a New Consensus: retired Congressman and Independent Presidential candidate Jack “Catfish” Parnell, Chairman; Brian Doohan, Administrator. The CNC denies, emphatically, allegations that the organization, as well as any of its officers (including former Congressman Parnell, environmentalist/America-Firster Austin Tillerman and cosmetics CEO Rayna Finch) and references to Parnell’s works, “Entropy and Renaissance” and “The Coming Kill-Off” are fictitious or, at best, mere pawns in the web-serial “Black Helicopters” – and promise swift, effective legal action against parties promulgating this and/or other such slanders.

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ATTACHMENT ONE (A) – From the Washington Post

HOW REPUBLICANS COULD ACTUALLY IMPROVE BIDEN’S INFRASTRUCTURE PROPOSAL

Opinion by Catherine Rampell, Columnist June 14, 2021 at 6:09 p.m. EDT

Americans spend too much and get too little.

The U.S. government spends way more on health care than most other industrialized countries do and has little to show for it. (U.S. life expectancies are shorter than those in most other developed economies.) Likewise, we spend a lot on education and on public safety per capita, yet have outcomes that are either no better, or in some respects considerably worse, than those abroad.

On infrastructure, the United States fares especially poorly compared to its peers — a fact that has received curiously short shrift in Washington’s ongoing negotiations. So far, White House offers and Republican counteroffers have primarily focused on how much to spend, rather than how to make sure that money is spent well.

The price tag matters, yes. So does getting a good bang for our buck.

The United States is notoriously bad at this. We pay much more per unit of subway track or road tunnel, for instance, than other developed countries. Five of the world’s six most expensive subway lines are in New York City, according to the Transit Costs Project database maintained by New York University’s Marron Institute of Urban Management.

Likewise, a new tunnel in Seattle cost around $1.6 billion per mile, more than three times the per-mile cost of a recent tunnel in Paris and more than seven times that of one in Madrid, according to institute fellow Alon Levy.

Construction costs for the U.S. interstate highway system have also risen dramatically since the mid-20th century, according to a study from scholars at George Washington University and Yale. These patterns are not readily explained by labor or materials prices.

Analyses suggest no correlation between a country’s gross domestic product per capita and subway construction costs. Nor does it seem likely that European countries are keeping costs down because they care less about labor or environmental standards than we do. Rather, for reasons that have proven difficult to untangle — including poor planning, complicated procurement processes, our multilayered federalist system, NIMBYism and risks of litigation — we’re just worse at this than other countries.

The United States also funds projects that add little value, perhaps because of political pressures to distribute infrastructure dollars to every constituency, regardless of need or population density.

“Historically, since the Obama administration, we’ve seen a proliferation of pretty dubious projects on the transit side,” says Eric Goldwyn, a program director and professor at the Marron Institute. “So it’s a bit of a double whammy, where you’re building bad projects, but you’re also paying a lot to build bad projects.”

Asked about infrastructure cost issues, Biden administration officials have acknowledged the problem. But they haven’t really explained how they plan to deal with it as part of the president’s proposed American Jobs Plan, whose very name shows the emphasis on maximizing new employment, rather than wringing maximum productivity from every penny. One official told me that the plan was not intended to be a “make-work” proposal, but that the administration was willing to tolerate a little more expense if it helped created more meaningful jobs. (Of course, because infrastructure projects are capital-intensive, higher costs don’t necessarily mean extra spending goes to workers.)

Transportation Secretary Pete Buttigieg said recently that the cost issue does matter, that it’s a bit of a “head-scratcher,” and that he wants to “stand up more capabilities” to assess how our dollars could go further. Which sounds promising, but it doesn’t seem like a priority based on administration proposals so far.

In fact, some White House policies would make federally funded infrastructure projects more costly.

These include more stringent requirements for goods and materials to be “made in America and shipped on U.S.-flag, U.S.-crewed vessels” (that is, even if American suppliers are not pricing competitively). So far, President Biden has also maintained President Donald Trump’s steel and aluminum tariffs, and officials appear poised to raise existing lumber tariffs.

Republicans have long branded themselves as the government-skeptic party, casting themselves in opposition to Democrats’ supposed love of bloated bureaucracy. Well, here’s an opportunity for GOP lawmakers to prove their mettle, by actually adding value to the ongoing infrastructure negotiations.

Rather than conspiring to drown government in a bathtub — as they’ve tried, and failed, to do since the Reagan era — Republicans could seek ways to ensure necessary government functions operate more efficiently.

That might mean pressuring the White House to change its cost-benefit analysis of prospective infrastructure priorities. Or attaching more strings to project grants to incentivize states to streamline land-use and environmental review regulations. Or demanding more waivers for buy-American provisions and a repeal of tariffs.

Of course, Biden could make such changes on his own (and he’s shown openness to some of them). But if Republicans want to prove their fiscal-responsibility bona fides, focusing on efficiency — rather than haggling over the price tag — would be a good place to start.

ATTACHMENT ONE (B) – From the Washington Post

THE TAX SYSTEM IS WORKING AS INTENDED. SO IF WE WANT TO TAX THE RICH, HERE ARE SOME ALTERNATIVE OPTIONS.

Opinion by Catherine Rampell, Columnist June 10, 2021 At 5:59 P.M. Edt

ProPublica’s bombshell report on leaked tax returns of the ultrawealthy has made people mad. They seem mad mostly at the rich, who paid little in income taxes as a share of just their income and virtually nothing as a share of their net worth. In some cases, actually nothing. Some billionaires — reportedly including the owner of this newspaper! — paid zero dollars in income taxes during a handful of years.

All as their fortunes swelled.

Fume all you want, but the tax system is working exactly how it was designed to. We’ve chosen not to tax “unrealized gains” as income — that is, we tax the increases on most assets only when and if those assets get sold.

And sometimes, not even then, if those stock holdings or gold bars or whatever get passed along to heirs first.

As a society, we could make different choices. There’s a long menu of options to wring more money out of the very rich, including some good proposals from President Biden.

The Treasury Department asked law enforcement authorities to investigate the disclosure of tax records cited in a media report on June 8. (Reuters)

Let’s start with options that are popular but somewhat problematic. Many on the left love wealth taxes, such as those promoted by Sen. Elizabeth Warren (D-Mass). She has proposed taking 2 percent annually of fortunes greater than $50 million (3 percent for wealth above $1 billion). While the idea polls extremely well, its constitutionality is questionable. The Supreme Court has struck down wealth taxes before; given the court’s composition today, a different result seems unlikely.

There’s also the thorny problem of assessing the value of very rich people’s assets every year. That’s easy for publicly traded securities (such as Tesla stock), but for more illiquid assets (a closely held business, art collection, intellectual-property rights to Taylor Swift’s song catalogue), valuation can be easily manipulated if no recent transaction has taken place.

Implementing an annual wealth tax is therefore likely to be an enormous boondoggle for professional appraisers, and to leave the Internal Revenue Service vastly outgunned.

Similar administrative headaches would occur if we annually “mark to market” the value of assets, another frequently proposed idea. This involves taxing not people’s wealth, per se, but taxing their capital gains according to how much their assets grew (or shrank) each year, even if those assets never got sold.

In addition to appraisal challenges, this policy would likely present political problems. New research suggests that Americans really don’t like the idea of taxing capital gains before a sale, viewing it as unfair. And what happens when rich people’s assets decline in value? If there’s a giant recession, and Facebook stock tanks, does Uncle Sam cut Mark Zuckerberg a check?

So let’s talk about some more promising ideas.

One, which Biden has endorsed, is raising the corporate income tax rate. If corporate income taxes are primarily paid by shareholders — as economists generally believe — that means raising corporate rates would effectively increase the tax burden on the Warren Buffetts of the world.

We could also impose a national consumption tax. Right now, billionaires can fund lavish lifestyles by borrowing at low interest rates against their stock holdings and use this untaxed money to fund things such as mansions or yachts. A consumption tax would hit such purchases.

Consumption taxes tend to be regressive, though, so other policy changes would be required to prevent hurting the poor.

Then there’s Biden’s proposal to raise the top tax rate on capital gains, and more important, to change when such taxes get triggered.

Right now, rich people can bequeath enormous estates to their heirs tax-free (up to a certain amount), and any gains their stocks or other assets have accrued over their lifetimes get wiped out at death as though they’d never happened, at least for tax purposes. Under Biden’s plan, however, the tax code would treat gains above a certain threshold as “realized” whenever the owner dies or otherwise transfers the asset to someone else. When either event happens, capital gains taxes would be due.

Biden’s scheme would leave in place current incentives to hold on to assets as long as possible, which creates some distortions. But this “deferral benefit” could be addressed by basically charging interest for all the years a person held on to stock before dying, or either selling or gifting it. This idea, sometimes called a retrospective capital tax, was proposed some 80 years ago by Nobel laureate William Vickrey and has been developed further since.

These kinds of changes would go a long way toward making sure those who live off their wealth pay their “fair share," just as regular wage-earners do. They wouldn’t guarantee that every billionaire’s fortune gets taxed, particularly if we’re unwilling to eliminate tax benefits for charitable giving. There are other ways for the well-heeled to legally duck the Tax Man, too. That’s why adding a few different policy changes would be helpful, if the goal is to get the richest Americans to pony up.

“The tax code is sort of a Swiss cheese approach,” says University of Chicago tax law professor Daniel Hemel. “So, let’s add some more layers of cheese.”

ATTACHMENT TWO – From National Geographic

THE ORIGINS OF THE FILIBUSTER—AND HOW IT CAME TO EXASPERATE THE U.S. SENATE

BY AMY MCKEEVER FEBRUARY 2, 2021

The concept of making marathon speeches to block legislation has been around since ancient Rome. But U.S. lawmakers have made this tactic notorious—and created a new form of "stealth" filibusters.

Appropriately, its name comes from a Dutch word for “pirate”—because the filibuster is, in essence, a hijacking of debate in the U.S. Senate. It’s also one of the most controversial traditions in American politics.

To win approval in the Senate, most legislation requires only a simple majority, or 51 votes. But to bring an end to the debate over a piece of legislation, the threshold is higher: the votes of three-fifths of the members present, or 60 senators, are required to cut off debate. If there aren’t enough votes for cloture, a single senator who refuses to yield the floor during a debate, or delays it with unnecessary parliamentary motions, can prevent the end of debate—and thus, the passage or defeat of the legislation.

Defenders of the filibuster argue that it protects the rights of the minority party and encourages consensus. Opponents complain that it subverts majority rule and creates gridlock. Both sides in the argument claim to have history—and the U.S. Constitution—on their side.

What’s there to know about the origins of the filibuster? Here’s a look at how it became so prevalent, why its use exploded during the civil rights era, and how it evolved into the present day’s so-called “stealth” filibuster.

The origins of the filibuster

The concept of the filibuster has been around since ancient Rome. The Roman senate didn’t limit how long its members could speak—a fact that historians believe was first exploited in 60 B.C. by Cato the Younger in a debate over contracts with private tax collectors. Cato also used the filibuster to thwart the agenda of his political enemy, Julius Caesar. His tactics would prove enduring, emerging more than two millennia later in the governing of a new republic.

The U.S. Constitution doesn’t specifically address the filibuster. Although some of the framers made clear that they supported majority rule—including Alexander Hamilton, who described the minority veto as “a poison” in the Federalist Papers—the Constitution left it up to lawmakers to set the rules that would govern their chambers.

The original rulebooks of both the Senate and the U.S. House of Representatives included a rule—known as the “previous question” motion—that allows a simple majority of voting members to end debate. It’s not entirely clear how the rule was understood at the time, as it was also used to postpone debates. But today the motion is understood as one that prevents the minority party from overruling the majority.

Though the lack of early records leaves much unknown about filibuster efforts, lawmakers clearly understood the power of speech as a dilatory strategy. In 1789, Pennsylvania Senator William Maclay decried Southern senators’ attempt to delay a vote establishing Philadelphia as the nation’s capital. As he noted in his journal, “the design of the Virginians and the Carolina gentlemen was to talk away the time, so that we could not get the bill passed.” 

Still, early filibusters are thought to have been infrequent. By 1806, the Senate had invoked its “previous question” motion so rarely that the body deleted it in an effort to streamline its rulebook. But in the House, things took a different turn. In 1811, Barent Gardenier, a representative from New York, tried to filibuster a proposed trade embargo against Great Britain. His colleagues weren’t having it: They invoked the “previous question” rule—which they had only ever used to pause debate—to end his remarks. That precedent now prevents filibusters in the House.

Some political scientists argue that the Senate intentionally did away with the rule because they wanted to create the opportunity for unlimited debate. Others believe that legislators simply didn’t see the need for a specific tool to end debate since it had rarely been an issue. Either way, however, the absence of the “previous question” rule paved the way for the rise of an unchecked filibuster.

A need for cloture

One of the earliest coordinated attempts to block legislation occurred in 1837, when allies of Democratic President Andrew Jackson sought to expunge the Senate’s earlier censure of him. Members of the opposing Whig party mounted a filibuster to prevent the expungement, yet were unsuccessful.

By the 1850s, the practice became popular enough to earn its name, which was inspired by the mercenary sailors called “filibusters” who attempted to overthrow governments in South and Central America. In the decades that followed, senators on both sides of the aisle filibustered bills concerning economic issues as well as slavery and civil rights.

The frequency of filibusters was starting to become a problem. Things came to a head on March 3, 1917, when the Senate was considering arming merchant ships to protect them from German attacks during World War I. Fearing the bill would lead the U.S. into the war, Republican Senator Robert La Follette launched a filibuster with only 26 hours to go until the Senate’s term ended.

Fed up with the Senate’s successful filibuster, President Woodrow Wilson demanded that the body adopt a rule to prevent “[a] little group of willful men, representing no opinion but their own” from hijacking future legislation. After intense negotiations, on March 8 the Senate adopted a “cloture” rule that would allow a two-thirds majority of lawmakers to cut off debate.

It was a high bar, however. The Senate would successfully invoke cloture only five times in the next 46 years—including in 1919 to defeat the ratification of the Treaty of Versailles, which Wilson had negotiated to end World War I.

Filibustering the civil rights movement

Rather than die out, however, filibusters ballooned in the 20th century—and were used more systematically than ever before to block civil rights legislation. As Columbia University political science professor Gregory Wawro testified in a 2010 Senate hearing, “it is undeniable that such reforms became the first type of legislation where filibusters were perennially anticipated.”

Intent on keeping the white supremacist status quo of the Jim Crow era, Southern senators formed a minority faction powerful enough to prevent cloture. They successfully filibustered several bills that would have made lynching a federal crime as well as those that would have outlawed the poll taxes that kept Black people from voting.

In 1957, South Carolina Senator Strom Thurmond set the current record for the longest continuous filibuster: He talked for 24 hours and 18 minutes to try to prevent passage of the Civil Rights Act of 1957. Thurmond’s efforts failed, however, and the bill became law, creating a federal commission on civil rights and some voting rights protections.

Seven years later, a coalition of Southern senators filibustered for 60 working days against the landmark Civil Rights Act of 1964, which offered more robust voting rights protections and banned racial discrimination in public places and in the workplace. Ultimately, the Senate majority cobbled together 71 votes to invoke cloture and pass the bill.

As the use of filibusters grew, so did a movement to reform cloture. Wawro notes that “numerous proposals” were introduced throughout the 1960s to make it easier to end debate. In 1975, after an intense battle, reformers finally succeeded in reducing the cloture threshold to three-fifths—a slightly smaller supermajority that remains the standard today.

The ‘stealth’ filibuster of the modern era

The turmoil of the civil rights filibusters opened the floodgates for all types of legislation to become subject to filibuster. But with an increasing workload, the Senate began to look for a way to handle filibusters that wouldn’t tie up other legislation. Rather than the stemwinders of the past, the Senate is now plagued by the “stealth” filibuster.

Today, senators can delay or block a bill simply by signaling their intent to filibuster, write legal scholars Catherine Fisk and Erwin Chemerinsky: “A credible threat that 41 senators will refuse to vote for cloture on a bill is enough to keep that bill off the floor.” Instead of risking a protracted debate, the Senate majority often waits to introduce legislation until it has enough support for cloture.

As a result, modern presidents have struggled to pass legislation. Former President Bill Clinton reportedly hoped to eliminate filibusters after they stymied his healthcare initiative. Filibusters have also often held up political appointments—leading both parties to take action. In 2013, Democrats used a procedural tactic called the “nuclear option” to lower the cloture threshold to 51 for confirming lower-level nominees. Although Republicans decried it at the time, four years later they went nuclear too by reducing the confirmation threshold for Supreme Court nominees. (Here's why the Supreme Court has nine justices—and how that could change.)

Calls for reform have grown alongside the “stealth” filibuster. Some suggest rewriting the Senate’s rules to lower the cloture threshold; others suggest requiring lawmakers to conduct old-school “talking” filibusters instead of merely threatening them. (These have occasionally occurred in recent years. In 2010, independent Bernie Sanders filibustered a bipartisan tax deal for eight and a half hours. A few years later, Republicans Ted Cruz and Rand Paul each mounted lengthy filibusters against Obama Administration priorities.)

It’s unclear if the push to reform the filibuster will have any effect. After all, the filibuster still has its supporters—particularly among lawmakers who find themselves in the minority party after an election swings the Senate’s balance of power.

ATTACHMENT THREE – From US senate.gov

ABOUT FILIBUSTERS AND CLOTURE | HISTORICAL OVERVIEW

Whether praised as the protector of political minorities from the tyranny of the majority, or attacked as a tool of partisan obstruction, the right of unlimited debate in the Senate, including the filibuster, has been a key component of the Senate’s unique role in the American political system.

The tactic of using long speeches to delay action on legislation appeared in the very first session of the Senate. On September 22, 1789, Pennsylvania Senator William Maclay wrote in his diary that the “design of the Virginians . . . was to talk away the time, so that we could not get the bill passed.” As the number of filibusters grew in the 19th century, the Senate had no formal process to allow a majority to end debate and force a vote on legislation or nominations.

While there were relatively few examples of the practice before the 1830s, the strategy of “talking a bill to death” was common enough by mid-century to gain a colorful label—the filibuster. Derived from a Dutch word for “freebooter” and the Spanish “filibusteros”—to describe the pirates then raiding Caribbean islands—the term began appearing in American legislative debates in the 1850s. “I saw my friend standing on the other side of the House filibustering,” commented Mississippi’s Albert Brown on January 3, 1853. A month later, North Carolina senator George Badger complained of “filibustering speeches," and the term became a permanent part of our political lexicon.

The earliest filibusters also led to the first demands for what we now call “cloture,” a method for ending debate and bringing a question to a vote. In 1841 the Democratic minority attempted to run out the clock on a bill to establish a national bank. Frustrated, Whig senator Henry Clay threatened to change Senate rules to limit debate. Clay’s proposal prompted others to warn of even longer filibusters to prevent any change to the rules. “I tell the Senator,” proclaimed a defiant William King of Alabama, “he may make his arrangements at his boarding house for the [entire] winter.” While some senators found filibusters to be objectionable, others exalted the right of unlimited debate as a key tradition of the Senate, vital to tempering the power of political majorities.

Filibusters became more frequent in the late 19th and early 20th centuries, leading to serious debate about changing Senate rules to curtail the practice. At that point the Senate had grown larger and busier, and the sheer amount of work to be done in each session meant that a filibustering senator could disrupt the progress of the body and gain concessions from senators who wanted to get their bills passed.

In 1917, with frustration mounting and at the urging of President Woodrow Wilson, senators adopted a rule (Senate Rule 22) that allowed the Senate to invoke cloture and limit debate with a two-thirds majority vote. This rule was first put to the test in 1919, when the Senate invoked cloture to end a filibuster against the Treaty of Versailles. Even with the new cloture rule, however, filibusters remained an effective means to block legislation, since a two-thirds vote was difficult to obtain. Over the next four decades, the Senate managed to invoke cloture only five times. Filibusters proved to be particularly useful to southern senators who sought to block civil rights legislation, including anti-lynching bills. Not until 1964 did the Senate successfully overcome a filibuster to pass a major civil rights bill. Nevertheless, a growing group of senators continued to be frustrated with the filibuster and pushed to change the cloture threshold. In 1975, the Senate reduced the number of votes required for cloture from two-thirds of senators voting to three-fifths of all senators duly chosen and sworn, or 60 of the current 100 senators. Today, filibusters remain a part of Senate practice, although only on legislation. The Senate adopted new precedents in the 2010s to allow a simple majority to end debate on nominations.

The type of filibuster most familiar to Americans is the marathon speech by a small group of senators, or even a single senator, such as the filibuster staged by fictional senator Jefferson Smith in Frank Capra’s 1939 film Mr. Smith Goes to Washington. There have been some famous filibusters in the real-life Senate as well. In 1917, for example, Wisconsin senator Robert La Follette used the filibuster to demand free speech during wartime. During the 1930s, Senator Huey P. Long effectively used the filibuster against bills that he thought favored the rich over the poor. In the 1950s Oregon senator Wayne Morse famously used the filibuster to educate the public on issues he considered to be of national interest. The record for the longest individual speech goes to South Carolina's Strom Thurmond, who filibustered for 24 hours and 18 minutes against the Civil Rights Act of 1957.

(That) filibuster drew to a close after 24 hours and 18 minutes at 9:12 p.m. on August 29, making it the longest filibuster ever conducted in the Senate to this day. Thurmond was congratulated by Wayne Morse, the previous record holder, who spoke for 22 hours and 26 minutes in 1953.

ATTACHMENT FOUR - From brookings.edu

SEPTEMBER 9, 2020 Molly E. Reynolds

The Senate cloture rule—which requires 60 members to end debate on most topics and move to a vote—could pose a steep barrier to any incoming president’s policy agenda. Voices on both sides have called for reform in the face of partisan gridlock, and while change may be possible now that Democrats control Congress and the White House, complicated dynamics in the Senate would make it an uphill battle.

The Senate has a number of options for curtailing the use of the filibuster, including by setting a new precedent, changing the rule itself, or placing restrictions on its use.

President Joe Biden has expressed some openness to the idea, depending on how obstructive congressional Republicans become, but it’s ultimately up to the Senate to set the process in motion.

Use of the Senate cloture rule has become far more common in the 21st century. More cloture motions have been filed in the last two decades than in the 80 years prior.

Just weeks into Joe Biden’s presidency, it is clear that he faces considerable obstacles in pursuing his agenda in Congress. The Senate cloture rule—which requires 60 votes to cut off debate on most measures—is probably the highest hurdle. Democrats’ Senate majority rests on the tie-breaking vote of Vice President Kamala Harris, and even the process of organizing the Senate’s committees got bogged down by a debate over whether Democrats would attempt to eliminate the legislative filibuster in the opening weeks of the 117^th Congress. While Democrats have some procedural options for circumventing the filibuster—discussed in greater detail below—the debate over whether to retain the procedure is likely to remain center stage as legislators work to address the range of challenges facing the country.

Where did the filibuster come from?

While our understanding of the Senate as a slower-moving, more deliberative body than the House of Representatives dates to the Constitutional Convention, the filibuster was not part of the founders’ original vision of the Senate. Rather, its emergence was made possible in 1806 when the Senate—at the advice of Vice President Aaron Burr—removed from its rules a provision (formally known as the previous question motion) allowing a simple majority to force a vote on the underlying question being debated. This decision was not a strategic or political one—it was a simple housekeeping matter, as the Senate was using the motion infrequently and had other motions available to it that did the same thing.

Filibusters then became a regular feature of Senate activity, both in the run-up to and aftermath of the Civil War. Senate leaders from both parties sought, but failed, to ban the filibuster throughout the 19th century. Opponents would simply filibuster the motion to ban the filibuster. In 1917, as part of a debate over a proposal to arm American merchant ships as the U.S. prepared to enter World War I, the chamber adopted the first version of its cloture rule: It allowed two-thirds of all senators present and voting to end debate on “any pending measure.” Several changes to the rule followed in the coming decades. More recently, in 1975, the number of votes needed to invoke cloture on legislative matters was reduced to three-fifths (or 60, if the Senate is at full strength). In 1979 and 1986, the Senate further limited debate once the Senate had imposed cloture on the pending business.

Consequently, for many matters in the Senate, debate can only be cut off if at least 60 senators support doing so. (This is not universally true, however, and we will see several consequential counterexamples below.) While Senate rules still require just a simple majority to actually pass a bill, several procedural steps along the way require a supermajority of 60 votes to end debate on bills.

How has the use of the filibuster changed over time?

There’s no perfect way to measure the frequency with which the filibuster has been used over time. Senators are not required to formally register their objection to ending debate until a cloture motion actually comes up for a vote. If Senate leaders know that at least 41 senators plan to oppose a cloture motion on a given measure or motion, they often choose not to schedule it for floor consideration. But the number of cloture motions filed is a useful proxy for measuring filibusters, and as we see below, the number of such motions has increased significantly during the 20th and 21st centuries.

How does the Senate get around the filibuster now?

Senators have two options when they seek to vote on a measure or motion. Most often, the majority leader (or another senator) seeks “unanimous consent,” asking if any of the 100 senators objects to ending debate and moving to a vote. If no objection is heard, the Senate proceeds to a vote. If the majority leader can’t secure the consent of all 100 senators, the leader (or another senator) typically files a cloture motion, which then requires 60 votes to adopt. If fewer than 60 senators—a supermajority of the chamber—support cloture, that’s when we often say that a measure has been filibustered.

While much of the Senate’s business now requires the filing of cloture motions, there are some important exceptions. One involves nominations to executive branch positions and federal judgeships on which, thanks to two procedural changes adopted in 2013 and 2017, only a simple majority is required to end debate. A second includes certain types of legislation for which Congress has previously written into law special procedures that limit the amount time for debate. Because there is a specified amount of time for debate in these cases, there is no need to use cloture to cut off debate. Perhaps the best known and most consequential example of these are special budget rules, known as the budget reconciliation process, that allow a simple majority to adopt certain bills addressing entitlement spending and revenue provisions, thereby prohibiting a filibuster.

How would eliminating the filibuster actually work?

The most straightforward way to eliminate the filibuster would be to formally change the text of Senate Rule 22, the cloture rule that requires 60 votes to end debate on legislation. Here’s the catch: Ending debate on a resolution to change the Senate’s standing rules requires the support of two-thirds of the members present and voting. Absent a large, bipartisan Senate majority that favors curtailing the right to debate, a formal change in Rule 22 is extremely unlikely.

A more complicated, but more likely, way to ban the filibuster would be to create a new Senate precedent. The chamber’s precedents exist alongside its formal rules to provide additional insight into how and when its rules have been applied in particular ways. Importantly, this approach to curtailing the filibuster—colloquially known as the “nuclear option” and more formally as “reform by ruling”—can, in certain circumstances, be employed with support from only a simple majority of senators.

The nuclear option leverages the fact that a new precedent can be created by a senator raising a point of order, or claiming that a Senate rule is being violated. If the presiding officer (typically a member of the Senate) agrees, that ruling establishes a new precedent. If the presiding officer disagrees, another senator can appeal the ruling of the chair. If a majority of the Senate votes to reverse the decision of the chair, then the opposite of the chair’s ruling becomes the new precedent.

In both 2013 and 2017, the Senate used this approach to reduce the number of votes needed to end debate on nominations. The majority leader used two non-debatable motions to bring up the relevant nominations, and then raised a point of order that the vote on cloture is by majority vote. The presiding officer ruled against the point of order, but his ruling was overturned on appeal—which, again, required only a majority in support. In sum, by following the right steps in a particular parliamentary circumstance, a simple majority of senators can establish a new interpretation of a Senate rule.

What are some ways to modify the filibuster without eliminating it entirely?

The Senate could also move to weaken the filibuster without eliminating it entirely. A Senate majority could detonate a “mini-nuke” that bans filibusters on particular motions but otherwise leaves the 60-vote rule intact. For example, a Senate majority could prevent senators from filibustering the motion used to call up a bill to start (known as the motion to proceed). This would preserve senators’ rights to obstruct the bill or amendment at hand, but would eliminate the supermajority hurdle for starting debate on a legislative measure.

A second option targets the so-called Byrd Rule, a feature of the budget reconciliation process. These bills have been critical to the enactment of major policy changes including, recently, the Affordable Care Act in 2010 and the Tax Cuts and Jobs Act in 2017. To guard against a majority stuffing a reconciliation measure with non-budgetary provisions, the Byrd Rule limits the contents of the bill and requires 60 votes to set aside. Because the Senate’s non-partisan parliamentarian plays a significant role in advising whether provisions comply with the Byrd Rule, some senators have proposed diluting the power of the Byrd Rule by targeting the parliamentarian. This approach would weaken the filibuster by making it easier for a majority party to squeeze more of its priorities into a reconciliation bill (which then only requires a simple majority to pass). For instance, the majority party could select a parliamentarian who is more willing to advise weaker enforcement of the Byrd Rule, and, indeed, there is some history of the parliamentarian’s application of the Byrd Rule affecting his or her appointment. Alternatively, the senator presiding over the chamber (or the vice president, if he or she is performing that function) could disregard the advice provided to him or her by the parliamentarian, undercutting the efficacy of the Byrd Rule.

In addition, discussions among Democratic senators, led by Senator Jeff Merkley (D-Ore.), have surfaced other ideas that aim to reduce the frequency of filibusters by making it more difficult for senators to use the tactic, including requiring senators who oppose a measure to be physically present in the chamber to prevent an end to debate.

How likely are we to see a change to the filibuster in 2021?

By winning majorities in both houses of Congress and the White House, Democrats have achieved one necessary condition for filibuster reform: unified party control of Washington. Under divided party government, a Senate majority gains little from banning the filibuster if the House or president of the other party will just block a bill’s progress.

But the filibuster could still survive unified party control. Senators often speak about their principled support for the filibuster. But senators’ views about the rules are more often shaped by their views about policy. There would likely need to be a specific measure that majority party senators both agreed upon and cared enough about to make banning the filibuster worth it. As Republicans’ experience in the first two years of the Trump administration suggest, such proposals may be easier imagined than achieved.

In addition, individual senators may find the filibuster useful to their own personal power and policy goals, as it allows them to take measures hostage with the hopes of securing concessions. For majority party leaders, meanwhile, the need to secure 60 votes to end debate helps them to shift blame to the minority party for inaction on issues that are popular with some, but not all, elements of their own party. Finally, senators may be concerned about the future; in an era of frequent shifts in control of the chamber, legislators may worry that a rule change now will put them at a disadvantage in the near future.

ATTACHMENT FIVE - From Politifact

THE HISTORY OF THE FILIBUSTER AS 'JIM CROW RELIC'

By Louis Jacobson August 4, 2020

The filibuster’s emergence had nothing to do with racial legislation, and it has been used against a wide variety of bills. However, historians agree that the filibuster was closely intertwined with anti-civil-rights efforts in the Senate for more than a century, thanks to repeated efforts by southern senators to filibuster civil rights bills.

Former President Barack Obama made some news when he delivered a eulogy for John Lewis, the civil rights activist and congressman from Georgia who died on July 17 after battling cancer. In his eulogy, Obama said he was open to ending the filibuster, the longstanding rule in the U.S. Senate that allows a minority of 41 senators to block action on a bill.

Obama’s declaration during the July 30 church service in Atlanta came as he argued that Lewis’ top issue – the right to vote – was under attack. 

"You want to honor John? Let’s honor him by revitalizing the law that he was willing to die for," the Voting Rights Act. Obama said he supported such policies as automatic voter registration, additional polling places and early voting, making Election Day a national holiday, statehood for Washington, D.C., and Puerto Rico, and an end to partisan gerrymandering.

"And if all this takes eliminating the filibuster – another Jim Crow relic – in order to secure the God-given rights of every American, then that’s what we should do" Obama said.

A former Obama speechwriter, David Litt, had used almost identical language more than a month earlier when writing in the Atlantic, calling the filibuster "another relic of the Jim Crow era."

We wanted to know more about the history of the filibuster and its role in the Jim Crow era.

Historians told PolitiFact that the filibuster did not emerge from debates over slavery or segregation. However, they agreed that the parliamentary tactic was closely affiliated with opposition to civil rights for more than a century.

"The histories of the filibuster, civil and voting rights, and race in America are intertwined," said Steven S. Smith, a political scientist and Senate specialist at Washington University in St. Louis.

Where did the filibuster come from?

The filibuster was never "established" by a specific act; it emerged essentially by accident.

In her book, "Minority Rights, Majority Rule: Partisanship and the Development of Congress," Sarah Binder pegs the origins of the filibuster to a revision of Senate rules in the first decade of the 19th century, when senators mistakenly deleted a rule empowering a majority to cut off debate.

"Bereft of a rule to limit debate by majority vote in the 19th century, senators learned to exploit the rules to obstruct, delay, and take measures hostage for action on favored bills," said Binder, a political scientist at George Washington University and a senior fellow at the Brookings Institution.

It took until 1917 for the Senate to enact a "cloture" rule that disempowered a single senator, or small group of senators, from stopping debate on their own. The 1917 rule empowered a two-thirds majority of senators to cut off debate and proceed to the business being blocked. That fraction was lowered to three-fifths in 1975, where it remains today. (More recently, both parties have moved to eliminate the filibuster for appointments, but it remains in place for legislation.)

How the filibuster has been used against civil rights legislation

"Exploitation of the filibuster repeatedly undermined adoption of measures supported by majorities to protect and advance the rights of African Americans for much of Senate history," Binder said. 

The first period when this happened was in the pre-Civil War era, when filibusters were used against the admission of states depending on their slavery status, including California in 1850 and Kansas beginning in 1857, said Gregory Koger, a political scientist and congressional specialist at the University of Miami.

Then, during the Reconstruction and post-Reconstruction eras, senators launched filibusters against civil rights bills, deployment of federal troops in southern states, and repayment of income taxes from the Civil War, Koger said. 

"The last gasp of Republican efforts to ensure the political rights of southern blacks was the 1890-91 elections bill, which died in a Senate filibuster," Koger said. "The Republicans were chastened after this last effort. They were surprised by the vehemence of Southern opposition to the bill, and found that northern interest in civil rights was low."

Civil rights largely faded from the congressional agenda between the 1890s and the 1930s, but even then, the filibuster was used to block anti-lynching bills in 1922 and 1935. (Efforts to belatedly enact an anti-lynching law have been under way during the current Congress, but no law has been sent to the president yet.)

"It wasn’t until the 1950s that weak civil rights legislation was passed, and it wasn’t until 1964 and 1965 that legislation with real teeth was enacted," Smith said.

Generally speaking, pro-civil rights senators did not resort to filibustering, Koger said. One exception came in 1937, when pro-civil rights senators threatened to filibuster the resolution to adjourn for the year until Senate Majority Leader Alben Barkley promised to bring an anti-lynching bill up for a vote. Barkley relented, but the bill that came to the floor died due a filibuster. 

Pro-civil-rights senators could have used filibusters to hold hostage bills valued by southerners, Koger said. But they didn't, he said, in part because northern senators had a much smaller proportion of African American constituents at the time, making the issue seem less immediately salient.

By contrast, "once southern states had imposed a vast array of voting and election advantages for white citizens, there were few politicians in the South whose careers depended on representing southern Blacks, including restoring their political equality," Koger said. With whites strongly in favor of the Jim Crow status quo, southern senators went all in on blocking civil rights legislation, including the use of the filibuster, he said.

Even the Civil Rights Act of 1965, the landmark bill that finally broke the logjam, was almost blocked by the filibuster. The bill’s proponents were able to win passage only after securing 71 votes, including 27 Republicans, to end a filibuster.

Other targets of the filibuster

Civil rights legislation has not been the only type of Senate action to become subject to a filibuster.

The very first Senate filibuster was over a bridge across the Potomac River, Koger said, and trade, tariffs, and monetary policy inspired some 19th and early 20th century filibusters.

"During the 1920s and 1930s, many filibusters were waged by progressives against perceived government handouts to big business, and for neutrality in foreign affairs," Koger said. "The 1939 movie 'Mr. Smith Goes to Washington,' in which a simple prairie patriot filibusters against a corrupt political machine, embodies this progressive image of filibustering."

For most of congressional history, Koger said, "legislators have had to invest effort and pay political costs to filibuster, so the set of issues being obstructed at any time is a record of what politicians and voters really cared about. This included race, slavery, and civil rights, but also trade, foreign affairs, monetary policy, and internal parliamentary rights."

Who favors the filibuster?

On balance, Smith said, conservatives tend to like the filibuster more than liberals do, since the filibuster makes it harder to create new federal programs, which is a fundamental goal of small-government conservatism. Liberals, by contrast, are more likely to feel constrained by the filibuster in their efforts to expand the government’s role.

Even so, "situational ethics" also play a role, Smith said.

One argument in support of continuing the filibuster is that any majority is eventually going to be back in the minority and will rue the day it made life harder for its future self. Another argument against eliminating the filibuster is that it gives any single senator greater power within the chamber. Getting rid of the filibuster would require a tradeoff of each senator’s individual leverage. 

That said, historians say that the filibuster’s decades of use in opposition to civil rights has bequeathed it a historical stain.

"The repeated filibusters against civil rights legislation provide clear examples of how filibustering can be used to defend horrendous status quo policies," Koger said.

ATTACHMENT SIX – FROM Jacobin

BY ANDREW PEREZ June, 2021

THE FILIBUSTER IS THE ULTIMATE EXCUSE FOR DEMOCRATS

The filibuster saga isn’t simply about Joe Manchin. It’s about the Democratic Party overall, and their continued interest in allowing process to prevent them from governing.

It’s June, and President Joe Biden has only signed one major bill, a $1.9 trillion COVID-19 stimulus package. That’s because a handful of Senate Democrats don’t want to eliminate the filibuster, a rule that requires sixty votes to advance most legislation and allows the minority party to hold up most bills.

The most prominent member of the pro-filibuster group is conservative West Virginia Democrat Joe Manchin — who, it turns out, helped spearhead potential filibuster reforms a decade ago.

But the filibuster saga isn’t simply about Manchin. It’s about the Democratic Party overall, and their continued interest in allowing process to prevent them from governing. It’s a sad, frustrating story no one wants to hear about anymore, but which controls everything that happens in Washington.

Democrats, with their narrow Senate majority, have in their power the ability to end the filibuster. In fact, voting to change the rules and eliminate or reform the filibuster is one of the few things Democrats can actually do on their own with fifty-one votes — and it would allow them to enact President Joe Biden’s agenda at whatever pace they want.

Instead, the party has consistently and deliberately opted for gridlock.

Republicans used the filibuster to stymy Democrats’ agenda for all of Barack Obama’s two terms as president — including from 2009 to 2010, the only point in Obama’s presidency where Democrats controlled both houses of Congress and had the power to pass whatever legislation they wanted. Democrats kept the filibuster in place and let Republicans grind the Senate to a halt, even though they had fifty-nine votes for much of the time (and sixty for four months).

Nearly five months into Biden’s presidency, very little has changed: Democrats are once again choosing not to use their power to remove a general block on the legislative process. They are stalling during what could be the only time during Biden’s presidency that Democrats have the power to pass his agenda. This opportunity might not last for long: Democrats, due to their narrow Senate majority, could lose full control of Congress at any moment.

A Convenient Excuse

On a basic level, the filibuster is wildly antidemocratic. It is designed to make it harder to pass legislation through what is already a fundamentally undemocratic institution by design, where every state has the same representation, no matter its size.

Southern senators deployed the filibuster against civil rights legislation in the 1950s and ’60s, which is why reform advocates are now calling it the “Jim Crow filibuster.”

The filibuster today allows a minority of senators to extend debate on legislation indefinitely, blocking a final majority vote on a bill unless the majority party can find sixty votes to end cloture.

Some Democrats say getting rid of the filibuster would destroy any concept of collegiality between Republicans and Democrats, and prevent the parties from working together. It’s a delusional argument, if they believe it at all — Republicans made it extremely clear during Obama’s presidency that they would not help Democrats pass anything, and they are doing so again now.

“One-hundred percent of our focus is on stopping this new administration,” Senate Minority Leader Mitch McConnell, R-KY, declared in May. As McConnell said last week, “it’s pretty clear the era of bipartisanship is over.”

Other Democrats fear that eliminating the filibuster will allow Republicans to pass any legislation they want when they take back the majority. Of course, Republicans haven’t had much issue enacting their agenda when they have power. But allowing the minority party to block virtually all legislation is hardly a great recipe for Democrats’ legislative or electoral success — just look at the Obama era.

The more obvious reason why Democrats would want to keep the filibuster in place is they don’t want their party to be able to pass real legislation. The filibuster allows Democrats to say they support certain measures while ensuring those measures never become law. It functions as an esoteric, all-purpose excuse for failing — and they get to blame Republicans.

As it stands, Senate Democrats can’t really pass any legislation outside of occasional budget bills — which can pass by simple majority vote under the reconciliation process but can’t involve policy — or pure corporate giveaways. The bulk of the Democratic platform is dead on arrival.

Democrats see the filibuster as a convenient excuse they can use to avoid enacting their halfway progressive campaign promises. Keeping it in place breeds disillusionment and saps all energy out of the left and democracy, more broadly, because it means that most of what Democrats say on a daily basis will never happen and that’s what they want.

It sends the message that no matter how hard voters work to elect Democrats, nothing will fundamentally change, and nothing matters at all.

Going Nuclear

During the Obama years, the filibuster empowered a relatively small minority of senators to block almost everything — including in 2009 and 2010, when Democrats controlled the presidency, the House, and the Senate, where they held a big majority. By March 2010, the Associated Press reported that Republicans were using the filibuster “at a record-setting pace.”

Sen. Jeanne Shaheen, D-NH, who recently said she doesn’t want to fully eliminate the filibuster, led a push in early 2010 to completely gut it, proposing that the sixty-vote threshold to end debate on a bill drop to fifty-one votes after several days of debate.

The idea didn’t go anywhere. At the time, Senate Democrats, including Majority Leader Harry Reid of Nevada, insisted that it would take sixty-seven votes, not fifty-one, to change the rules and eliminate or reform the filibuster.

That was never really true: as Matt Yglesias wrote in 2010, “Senate rules require 67 votes to change the rules of the Senate. However, it’s actually quite possible for 50 Senators  —  if backed by the Vice President  —  to have elements of existing procedural deemed unconstitutional.”

The maneuver is known as the “nuclear option,” a moniker designed to make the idea of passing bills by a simple, fifty-one-vote majority sound radical and frightening.

Meanwhile, Democrats pretended they were powerless and chose to permit total obstruction.

They were roundly crushed at the polls in November 2010, losing control of the House as part of the Tea Party wave.

“Understandably Frustrated With the Way Things Get Done”

Democrats didn’t start seriously start talking about eliminating or reforming the filibuster until early 2011 — when Manchin, of all people, began to push for change.

Manchin, then a freshman senator, supported and cosponsored significant filibuster reforms, although he opposed efforts to eliminate the filibuster entirely.

“West Virginians deserve a government that works for them, and they are understandably frustrated with the way things get done — or don’t — in Washington,” he said.

Both filibuster reform measures failed after several Democrats voted no, including Sen. Mark Pryor, D-AR, who is now a corporate lobbyist. Sen. Dianne Feinstein, D-CA, didn’t vote on the measures, nor did Sen. John Kerry, D-MA, who is now Biden’s climate envoy. (A decade later, Feinstein has said she’s “open” to filibuster reform, but she downplayed the need for it last week.)

The filibuster isn’t unalterable policy, and it doesn’t require sixty-seven votes to reform it, as Democrats themselves have demonstrated.

In October 2011, Reid pushed through a minor filibuster rule change with fifty-one votes. Two years later, Reid enacted a much bigger change — allowing a majority of senators to end debate on all presidential nominees other than Supreme Court nominees — through a simple majority vote, again.

After Donald Trump became president, then-Senate Majority Leader McConnell and Republicans quickly changed the rules, by majority vote, to allow the majority party to end debate on Supreme Court nominations with fifty-one votes. The change helped Republicans confirm Justice Neil Gorsuch — and later Brett Kavanaugh and Amy Barrett.

But now, instead of supporting filibuster reform, Manchin is the one stonewalling his own party’s agenda — including blocking Democrats’ landmark democracy reform bill, the “For the People Act,” legislation Manchin previously cosponsored and even co-introduced in 2019. (That move has even spurred Manchin allies to call on the senator to reconsider.)

By now, this much is clear: Democrats have the power to eliminate or substantially reform the filibuster. It’s the only way they’ll be able to even begin to govern, if they want to, before they lose power.

ATTACHMENT SEVEN – FROM the New Republic

LET’S TAKE THE FILIBUSTER TO COURT

By Thomas Geoghegan June 14, 2021

A novel idea for House Democrats to thwart Joe Manchin: Sue the Senate all the way to the Supreme Court.

The failure of Democrats to surmount a Senate filibuster and pass out of that body a bill that might create a bipartisan committee to investigate the events of January 6 is a gut check for Democrats, who should no longer treat the procedural relic as a potential or imaginary threat to their governing agenda. Their inability to unite against the filibuster and end this sorry practice is solely on their shoulders, and they should be moving heaven and earth to dislodge this infernal practice from the upper body. Allies in this mission are, unfortunately, in too short supply in their own caucus.

Perhaps they should instead look to the courts—yes, even the Supreme Court. As implausible as it might seem, a lawsuit to knock out the filibuster might have a chance, even in a high court dominated by conservative justices. The reason being: It is in the institutional interests of the high court to get rid of it. And if those justices truly believe what they claim, they might discover that the best reason to save the Senate is to save themselves.

To begin at the beginning: It is not the old “talking” filibuster from the popular imagination of the public that such a suit would challenge. Under Article I of the Constitution, the Senate is entitled to have its own procedural rules, and cloture—ending debate in a talking filibuster—was procedural. All the majority had to do was simply wait out the talk, and there would sooner or later be a vote. In this way, cloture was understood as a process that provided an efficient way to get to a vote faster.

But it is not possible to wait out today’s perversion of the form: the “silent” filibuster. The silence is both instantaneous and eternal. Moreover, it is neither an alternative procedure nor a time-saving way to get to a majority vote. Rather, a supermajority must agree if there is to be a majority vote at all. There is also no principled rule for when this absolute supermajority requirement applies. It is at the whim of the minority. But the most important thing to remember is that as it is not a procedural rule, but rather a change in the enactment of law by majority vote, the filibuster is neither permitted by Article I, nor is it permitted with the consent of the House, which is the wronged party here.

Had the Framers gotten an inkling that this is what the filibuster would become—and in 1789, nothing like it existed anywhere in the world—they would have taken steps to explicitly ban its implementation. One of the reasons the Constitution even exists is that the Framers wanted to get rid of the dysfunctional supermajority rules laced through the Articles of Confederation. A supermajority rule, Madison wrote in Federalist No. 58, reverses the principle of free government.

The Founding Fathers had a different idea for limiting the power of Congress: Divide it into two chambers. Just last year, in Seila Law v. Consumer Financial Protection Bureau, the court explained this as follows: “The Framers viewed the legislative power as a special threat to individual liberty, so they divided that power to ensure that ‘differences of opinion’ and the ‘jarrings of parties’ would ‘promote deliberation and circumspection’ and ‘check excesses in the majority.’”

The silent filibuster restores the very undemocratic supermajority barriers that the Constitution’s framers went out of their way to reject. Worse, the legislature is now checked by both the supermajority burden and the bicameral check and balance the Framers invented. It is difficult to imagine what would have happened if we had this form of government during the Great Depression. Even with check and balance alone, we ended up with just half of the New Deal that Roosevelt intended.

But why might any of this bother the high court’s justices? The reason: The supermajority rule also inflicts an institutional injury on the Supreme Court.

It is important to understand here just why the Framers divided the Congress into two chambers: to weaken the legislative branch just enough to keep it from invading the function of the judicial and executive branches. But by the same thinking, if the legislative branch is too weak, the danger arises of the judicial or the executive branches invading the lawmaking functions. If Congress is incapable of acting, presidents will make law by executive order. And the Supreme Court will engage in even more de facto lawmaking than it used to when the legislative action was not limited by a supermajority rule but only by the original, constitutional check and balance.

Here is just one example from the last Supreme Court term: In Bostock v. Clayton Co., Georgia, the court held that Title VII of the Civil Rights Act of 1964 also covers discrimination against the LGBTQ community. This form of judicial reasoning is called gap filling, and in this instance, the gap was a big one. Maybe Bostock came out the right way, but in many countries, there would have been no case in the first place. It would have been a parliamentary matter—decided in a flash. Congress would have done its job. Similarly, it is hard to imagine a decision like Roe v. Wade in any country with a legislature capable of acting. Lacking that, the court decided by 5 to 4.

If the filibuster were gone, the court would be better able to perform the limited and truly judicial role that conservatives espouse—or at least pretend to embrace. It would be easier to permit the style of judging known as judicial formalism—the calling of “balls and strikes.” The principle here is that courts exist to apply rules. They exist to carry out “the will of the sovereign.” That is the only judicial role: to separate law from morals, or court-imposed ideals. It is the argument made by H.L.A. Hart in his classic The Concept of the Law, and in such other writings as “Positivism and the Separation of Law and Morals.” It all comes down to enforcing the will of the sovereign, as expressed in law.

But this whole project is doomed if there is no “will of the sovereign” for the judicial branch to carry out. What the judicial right wants depends on a legislative body as capable of acting as the British Parliament. By making it harder for the will of the sovereign to be expressed, the Senate filibuster makes it harder for judges to be judges.

In Seila Law, the court rather flippantly notes that under our 1789 Constitution, “the atom of sovereignty is smashed.” Well, in our time, thanks to the filibuster, that atom has now been smashed into even smaller subatomic particles, and the chain reaction it has set off is melting down the country. As the gaps in the laws become bigger than canyons, even conservative judges are forced into a whole range of gimmicks and stratagems to deny what they must know they are doing. It is judicial activism deemed illegitimate by the very judges who practice it.

But even conservative justices believe that there is a special duty to hear cases involving the separation of powers. As Justice Kennedy once wrote, “policing” the “enduring structure” of constitutional government when the political branches fail to do so is “one of the most vital functions of this Court.” In that same case, in a concurring opinion, Justice Scalia wrote that when the Constitution’s governing structure is at issue, it is the “solemn responsibility” of the judicial branch to say “what the law is.”

No challenge to the filibuster has ever reached the Supreme Court—but several challenges have failed in the lower courts. Each case has been dismissed on technical grounds, but there might be ways around this.

The members of the House of Representatives are best suited to be the plaintiffs in such a complaint. If these House members frame the suit in the right way, the technical grounds that lower courts have used to dismiss these suits in the past will disappear. Does the filibuster cause a true legal injury to the House members bringing suit, either in their official “political” capacity or their private individual capacity? Often in the past when members of Congress have sued the president in their official capacity, they have argued that there is a law or act that infringes on the power of Congress.

In Raines v. Byrd, for example, the late Robert Byrd sued to challenge the Line Item Veto Act, which interfered with Congress’s exclusive power over appropriations. But the court would have none of it—if the Line Item Veto Act infringes on the power of Congress, don’t come to us, the court said. Congress was free to repeal the law if it wanted to do so. There is no injury to members of Congress in their official capacity, or to their political powers, if the injury is one that the Congress can redress.

But the House cannot remedy the injury of the filibuster on its own—it stands as an unconstitutional check on the lower chambers’ ability to be the representative of the majority. The filibuster is a diminishment of the power granted to the House in the Constitution. It is also an injury to House members in their personal or individual capacity as citizens. The voting rights bill, for example, would ban political gerrymandering that rigs a vote against members of Congress, and so be of benefit to them personally. It would protect them as candidates in other ways, enabling them to clean up corruption in campaign fundraising, for example.

In the last legal challenge to the constitutionality of the filibuster, the U.S. Court of Appeals considered a suit by Common Cause, its members, and others, including House members, over the failure of the Senate to pass the Dream Act in 2010, when the Democrats still had a majority. By 2014, when the case reached the U.S. Court of Appeals, the case was pointless. In Common Cause v. Biden—yes, that Biden—the court dismissed it because the vice president himself as chair had not caused any injury. Rather, it was an “absent third party” that had done so: the entire Senate itself. The court noted it would be impossible to sue senators under the Speech and Debate Clause. The vice president and parliamentarian might issue rulings against the filibuster, but the senators could overturn them.

But the vice president has a legal duty to defend the rules of the Senate—and there is a real controversy over whether the rules are constitutional. It is only the vice president, as chair, who can answer whether the cloture is a proper procedural rule in the first instance. If the cloture rule in its current form violates the separation of powers under Article I, the fact that it is a “procedural rule” is not a legitimate cover. As plaintiffs, the House members could seek just a declaration or declaratory judgment binding on the vice president. Under the express language of the Declaratory Judgment Act, a federal court can issue a declaratory judgment even if the court does not or cannot give any further relief, such as an injunction.

The point is, even if the senators choose to participate in unconstitutional conduct, at least the vice president, as chair of the Senate and guardian of its rules, would not be doing so. The declaratory judgment would be meaningful relief, at least, by settling the legal question with the chair itself. It would also be meaningful in another sense: If the filibuster is unconstitutional impairment of the separation of powers, there is no reason for the plaintiffs or the court to assume that a majority of senators sworn to uphold the Constitution would not take guidance from an authoritative ruling. And it would put any Senators who vote to override the vice president’s decision to spike the filibuster on the record. If nothing else, this would enhance their accountability to the voters. It would clarify whether senators like Manchin were defending the foundation of our form of government, as they claim, or acting illegally to undermine it.

It is easy to scoff that the Supreme Court would never block a filibuster that benefits the Republicans. But if the court is conservative, the U.S. Court of Appeals is a different mix, and there is a good argument for revisiting Common Cause v. Biden. This time, the vice president could even join in seeking such a declaration. Even a temporary victory against the filibuster in the lower court, however fleeting, would rock the Senate at least in the duration of this term. It is a worthy thing to start an argument framed not in political but in constitutional terms—in terms not even of majority rule but of the separation of powers. It is dangerous to think we will be any better placed to get rid of the filibuster after the midterm 2022 elections. This may be a long struggle, and the composition of even the Supreme Court may change. We should start trying now to save the republic in every way we can.

Thomas Geoghegan is a Chicago labor lawyer and author of Only One Thing Can Save Us: Why America Needs a New Kind of Labor Movement. His latest book, The History of Democracy Has Yet to Be Written, is arriving in September 2021.

ATTACHMENT EIGHT – FROM Politico

FILIBUSTERS AREN'T WHAT THEY USED TO BE

By ANDIE COLLER, 11/23/2009 04:24 AM EST

If you’ve been hoping to see Sen. Joe Lieberman star in a sequel to “Mr. Smith Goes to Washington” this holiday season, you can put away the microwave popcorn.

Fury over the Connecticut senator’s announcement that he might join Republicans to filibuster a vote on the Senate health care bill has Democrats clamoring for Majority Leader Harry Reid to grab his teddy bear and let ’em talk all night.

But the public isn’t likely to see Lieberman offer a dramatic reading of the New Haven telephone book any time soon — nor catch Democrats cat-napping on the Senate floor to keep the session going round the clock.

Filibusters are far more common than most realize, but they don’t look much like Jimmy Stewart vehicles anymore, said Gregory Wawro, professor of political science at Columbia University and author of “Filibuster: Obstruction and Lawmaking in the United States Senate.”

“There are many more of them than there were prior to the 1970s,” he said. “They’re used for about everything of any significance these days.”

But instead of the spectacular verbal endurance tests for which Louisiana Democratic Sen. Huey Long was famous, senators now use “silent filibusters,” in which the opposition announces its intent to filibuster a bill, thereby forcing the party in power to assemble a 60-40 supermajority in order to move forward — even if no one is actually standing up on the floor to stop them.

“It used to be, the only way to stop anything was that: the all-night, all-day, hold-the-floor filibuster,” said one Republican leadership aide. “Whereas now, you need to produce 41. If you can get 41 senators, you can stop it.”

The aide acknowledged that an old-school filibuster isn’t likely this time around but also cautioned not to “rule anything out.” He said GOP members are “keyed up” for a national debate, which he predicts will last “for weeks and weeks.” And while it may not take quite that long, Sen. Tom Coburn (R-Okla.) is already demanding that the entire 2,074-page Senate health care bill be read on the floor before a vote.

But that’s a pause and a political point, not an actual filibuster.

The last true old-school filibuster in the Senate is considered to have been conducted in 1986 by then-Sen. Alfonse D’Amato, a Republican from New York who was known as “Sen. Pothole” for his vaunted constituent-services operation. D’Amato spoke for 15 hours and 14 minutes in a failed effort to amend a tax bill to aid a struggling typewriter factory in Cortland, N.Y.

Since then, there have been plenty of silent filibusters, punctuated with periodic threats to haul out the cots, and even an all-night debate in 2007 staged to try to end a Republican filibuster over a bill on withdrawal from Iraq. Senators have also held the floor at length in protest or used filibuster-style techniques to slow down the proceedings. 

Reid himself held the floor for nearly nine straight hours in 2003, without so much as a bathroom break, to protest the majority’s insistence on “wasting” 30 continuous hours of debate over four judges Democrats had refused to confirm. He spoke for hours on the bill itself before commencing to read newspaper clippings and excerpts from his book “Searchlight: The Camp That Didn’t Fail,” as well as offering his musings on an array of subjects that included cactuses, rabbits, rocks and the behavior of buffaloes on a trip he took to Old Faithful.

But a Jimmy Stewart-style marathon filibuster is unnecessary, inconvenient, exhausting and, most of all, risky. The calls of “bring back the bedrolls” stem from the belief that forcing Republicans and their sympathizers to actively stall the business of the Senate with an old-fashioned gabfest would provoke public outrage at the obstructionists and, perhaps, pressure some senators into backing down. Such games of congressional chicken have backfired in the past, however: In 1998, opponents of a campaign finance bill were allowed to filibuster in the hope that they would back down, but after eight failed cloture votes, the bill was pulled from the floor.

“The argument was, ‘Hold Republicans’ feet to the fire,’” said Sarah Binder, senior fellow at the Brookings Institution and co-author, with Steven Smith, of “Politics or Principle: Filibustering in the United States Senate.”

“But they never gave in,” she said.

“There’s all kinds of calls now to bring it to the floor and let them filibuster, wear ’em down, and people making the argument that eventually the Republicans will back down,” said Smith, a political scientist at Washington University in St. Louis. “I don’t think that would work, and, if it failed, I think it would be more of a problem for the Democrats than the Republicans.”

That’s particularly true because the Republicans alone do not have the numbers to block cloture and prevent the majority from ending debate, so in this case members of the Democrats’ caucus would not be “joining” a filibuster so much as creating one, allowing Republicans to argue that the bill was stalled not because of their opposition but because Democrats could not agree with one another. In addition, there are those on both sides of the aisle who see the filibuster threat as a way to strengthen their negotiating positions but who might feel forced to stand pat in a public battle of wills rather than risk looking as if they had traded their principles for a good night’s sleep, Smith said.

“We have to ask ourselves whether extended debate, round-the-clock debate, will increase the likelihood of getting [Nebraska Sen. Ben] Nelson’s vote or [Maine Sen. Olympia] Snowe’s vote. It’s their votes you need,” he said. “You’re never going to get [Mitch] McConnell’s vote or [John] Cornyn’s vote or [Lamar] Alexander’s vote on the basis of round-the-clock sessions — they’re going to be local heroes.”

Even if Reid wanted to force an old-school filibuster, he may not believe it possible: Earlier this year, The Huffington Post obtained a memo from Reid’s office that concluded that a bill’s opponents could technically hold the floor as long as they wanted to simply by repeatedly requesting quorum calls — a profoundly undramatic scenario that would eat up time without unduly taxing any individual senator and could go on indefinitely if the votes for cloture weren’t there.

In the meantime, Binder noted, other important business would be stalled — another risk for the majority.

“Majority leaders don’t really like to have the floor consumed by filibusters. They have other things on their agendas. It doesn’t help them,” she said. In the end, she said, “Democrats want to show they can govern. Their party’s reputation depends on their governing.”

ATTACHMENT NINE - FROM History News Network

WHAT KILLED THE TALKING FILIBUSTER?

by Kris Wood 12-10-12

On August 29, 1957, Senator Strom Thurmond sat in a steam bath, preparing himself for what he knew would be a long evening. Normally an undertaking reserved for post-physical activity, Senator Thurmond’s time in the sweat box was in preparation for an oratory workout that would come later in the evening. While most people make use of steam baths for relaxation, Thurmond had other plans in mind. The senator intended to flush any excess liquids out of his body, forestalling the need to use the washroom, for what would end up being the longest solo filibuster in the history of the U.S. Senate, a filibuster that lasted for 24 hours and 18 minutes.

While Senator Thurmond’s tour de force was no doubt an impressive display of marathon public speaking (although appreciation of the senator’s endurance must be coupled with the fact that Thurmond’s speech was a ploy to delay voting on the Civil Rights Act of 1957, a bill which aimed to protect the voting rights of African Americans), today is almost unheard of for a filibuster of this kind to occur. Rare are the Jimmy Stewart-style rants made famous in Frank Capra’s 1939 film, Mr. Smith Goes to Washington.

So what killed the talking filibuster?

This question requires a bit of historical context to fully explain.

The first use of the filibuster in sessions of the United States Senate occurred on March 5, 1841, when several members of the senate, objecting to the firing of Senate printers, spoke at length to delay legislation. The filibuster lasted until March 11 of that year..

In 1917, the Senate adopted the “cloture” rule which stated that a debate could be ended with a two-thirds majority vote from the Senate.

However, the cloture rule was rarely invoked, as the two-thirds majority proved hard to come by. Between 1927 and 1962 there were eleven instances when the Senate sought to invoke cloture. None succeeded. During this period filibusters were often defeated by negotiation or waiting out the filibustering Senator, hoping they would simply run out of steam.

This all changed by the end of the 1960s as frustrations over the repeated attempts to filibuster the Civil Rights Acts of 1960 and 1964 led many senators to embrace the act of voting for cloture.

There was an added dimension to this frustration: a filibuster prevented other legislation from being debated. By 1971, West Virginia senator Robert Byrd -- then Senate majority whip -- had had enough, and proposed new rules which allowed for other bills to be considered during a filibuster. Partly thanks to the new rules, the number of filibusters subsequently spiked up to thirty-one in the 1973-74 session.

In 1975 the number of votes to stop a filibuster was reduced to three-fifths, or as the rule (Rule XXII), reads: “The Senate may limit consideration of a pending matter to thirty additional hours, but only by vote of three-fifths of the full Senate, normally sixty votes.”

Even so, this process does not come down to the matter of a simple vote. To invoke cloture, along with the essential sixty votes, Senate rules require"

1) A two-day waiting period after a filibuster begins

2) Sixteen signatures of other senators on a motion to invoke cloture

3) A two-day waiting period to vote on cloture

4) An additional thirty hours of debate before the final vote

Since 1975, the act of filibustering has evolved into an action that is carried out far from the Senate floor. Senators who wish to stall a bill now often choose to use the informal procedure of enacting a “hold” on a bill, which allows for a senator to simply inform their party leader that they wish to halt a bills consideration, while remaining anonymous in most cases, ending debates before they even begin. At this point, either the senator’s issues with the bill -- or appointment -- are dealt with ahead of time or the hold goes to the floor for a cloture vote. If the vote to cloture fails, then the bill rarely is brought up again for debate.

Oregon senator Jeff Merkley, one of the key proponents of filibuster reform, explained the history of the silent filibuster in a statement to the floor on December 6, 2012:

In the 1900 to the 1970s, there was an average of one silent filibuster per year, one. Just one. And under the rules, this type of objection consumes a week because once the objection is made to unanimous consent to hold a majority vote, then a petition must be filed. A petition by the majority that wants to proceed. So they go and get sixteen signatures. That takes a little bit of time. And then once that petition has been filed -- that's called a motion, a motion -- a cloture motion to close debate, then it takes two days to get to a vote. The vote has to happen the day after an intervening day. So two days are gone. And then if sixty members say yes, we want to close debate, then you have to have thirty hours of debate time before you can actually get to a final vote. So the whole week is taken up by that process. Well, in the 1970s, the average grew to sixteen per year. Well, that's sixteen weeks wasted per year. The 1980s grew to twenty-one per year average. Now we're getting to well over a third of the number of weeks in the course of the Senate year. Then we go to the 1990s. We're up to thirty-six, thirty-six such silent filibusters taking up thirty-six weeks. We get to the decade 2000-2009 and an average of forty-eight or almost one per week. Starting to squeeze out any ability to address the big issues facing America. And then since I came here in 2009, we have an average of over sixty, over sixty per year. More than one per week. And as a result this last two years was the most dysfunctional legislature in decades. Big issues facing America, this floor, this forum of deliberation paralyzed by the continuous use of the silent filibuster on every issue. Essentially, what this silent filibuster has done is convert this to a supermajority body, and not only that convert it to a body that spends its entire year just trying to get to the vote as to whether we can have a final vote. That's the level of dysfunction that we have reached.

Occasionally, a talking filibuster of the old style will still be held on the floor. As recently as 2010, Vermont Senator Bernie Sanders’s filibuster opposing a Democratic tax cut deal with Republicans became a viral hit on the Internet (though it's doubtful many viewers made it through the whole thing; a full transcript can be found on Senator Sanders's website).

Filibuster reform has recently become a priority for the Democratic Party, frustrated by Republican stalling tactics that have made votes on even the smallest legislation a laborious event.

Senate majority leader Harry Reid, opposed to the idea of filibuster reform as late as 2010, has advanced the idea that the Senate would take up the issue on the first day that the 113th Congress convenes: “We have this crazy idea ... that if we’re going to have a filibuster, you have to stand and say something, not hide in your office someplace.” adding, “We are making simple changes. We’re not changing the Constitution, we’re not getting rid of the filibuster...We’re making three simple rules.”

Senator Mitch McConnell of Kentucky, the Republican minority leader, has expressed his intent to uphold the current rules of the Senate, saying that filibuster reform would “poison” party relations. Consequentially, McConnell laid blame on the Democratic majority, explaining, “This notion that the Senate is dysfunctional is not because of rules. It’s because of behavior.”

However, McConnell has not always been the filibuster’s defender, having fought to try to eliminate the then Democratic minority’s ability to filibuster judicial nominees in 2005, stating at the time, “Even if one strongly disagrees with a nomination, the proper course of action is not to obstruct a potential judge through the filibuster but to vote against him or her.”

Regardless, there is little debate about one thing: the Senate has become a dysfunctional mess. It may be time to assess whether the filibuster has become an anachronism. Even, if only, to prevent future senators from having to listen to one of their fellow members of Congress recite Hamlet for twenty-four hours straight.