The filibuster, part 5: Proposals for change

This post is part of a multi-post series on the filibuster in the U.S. Senate. An index to all other posts in the series, as well as a list of main sources that have informed this series, is included in the first post.

I’ll go out on a limb and suggest that most bloggers who devote more than a post to the filibuster find something they’d like to change about it. I’m no exception. But at least one (actual) scholar of the subject has written a defense of the filibuster, Gregor Koger. He notes that a 51-vote majority in the senate can represent just 17.7% of the nation’s population. Thus, a check on the majority is justified to minimize chances it “tries to pass legislation that lacks public support and/or is a payoff to some organized group. …”

In a second post in defense of the filibuster Koger emphasizes its positive role in fostering debate.

[F]ilibustering empowers the minority party to insist on a fair chance to debate major bills—and this is a good thing. Not only is it fair to the minority party—and good for the electoral process—to allow real debate on major legislation, it also enhances the legitimacy of the majority party and its actions.

Of course “empowering the minority” and “allowing real debate” are qualities of a process, but don’t themselves define it. Contrary to popular perception, the Senate’s terms and procedures of debate are open to redefinition and revision. Rule reform can occur at any time with 67-vote support. At the start of a new Congress (i.e., in January of each odd-numbered year) rule reform requires only a 51-vote majority, provided the Vice President declares a new session. The cloture rule has been modified in just this way in the past. For instance in 1975 the number of votes required to achieve cloture was reduced from two-thirds (67) to three-fifths (60) of Senators.

There is also a 60-vote route to filibuster reform, as explained in a post by Jim Hufford. In other posts, Hufford goes deep into the weeds on the 51-vote (two posts) and 67-vote mechanisms.

With Harry Reid signaling an interest in revising Senate rules and Joe Biden as President of the Senate, it appears that at least discussion, if not action, toward curbing minority obstruction of the Senate is likely. What options might they consider? The following is a list of the broad categories of ideas I’ve seen so far, along with my thoughts about which are or are not sensible and why. Many of the links and some of the ideas were harvested from Koger’s excellent post that summarizes some specific Senators’ proposals. See also Jonathan Bernstein’s two posts that review various reform ideas.

Reducing Cloture Threshold. Cloture puts a date certain on conclusion of debate (30 more hours). Changing the cloture threshold for success from a three-fifths (60 vote) majority to something less would certainly make achievement easier. Tom Harkin has proposed to allow the cloture threshold to drop by three votes with each successive attempt. I agree with Koger that Harkin’s idea is the wrong way to go as it will decrease the cost of obstruction while further delaying the process. Evan Bayh has proposed a 55-vote cloture.

Michael Bennet’s ideas kick in after the third failed cloture vote. One is to force the minority to find bipartisan support or the cloture threshold reduces from 60 to 56. The same reduction would occur if the majority finds three minority members to vote for cloture. These strike me as both needlessly complicated and suffering from the same problem as Harkin’s idea. But I do like the notion of getting something for bipartisanship (more below).

Limit Holds. By objecting to unanimous consent a single senator can initiate a “hold” and require a cloture vote, not just on bills but on nominations, whether executive or judicial. Senators can even do so anonymously. Bennet has proposed to eliminate anonymous holds on nominations and to insert an expiration date on them (30 days if bipartisan, two otherwise).  Ruth Marcus of the Washington Post also suggests that executive (but not judicial) branch nominees be immune from holds, i.e. affirmed with a simple majority vote. Since one can imagine a check on executive appointments being wise and necessary, I favor Bennet’s ideas over Marcus’s: require bipartisan support for executive nomination holds to last longer than is necessary for a senator to have time to collect his thoughts (which is a reasonable justification for a brief delay of a deliberative body).

Reverse Bias of Cloture Vote. Bennet has another intriguing cloture idea: to require the 41 senators who wish to block cloture to appear for the vote, as opposed to the current arrangement which puts the onus on the 60 senators who wish it to pass. Koger gives credit to Jonathan Krasno and Gregory Robinson for this idea, and he points to the likely result were it implemented.

[I]f the rule was adopted the majority could make a habit of filing for cloture on Thursday or Friday and keeping the Senate open on Saturday and Sunday, so that obstructionists would have to stay in D.C. to vote against cloture. For today’s “Tuesday to Thursday” Senate (on a busy week) this would be a real change, and could quite possibly swing the outcome of some cloture votes.

Reduce Scope of Filibuster Applicability. Bennet and Marcus both suggest removing the right to filibuster the “motion to proceed” (the motion to bring the bill to the floor). Requiring multiple cloture votes on the same bill, whether to end debate on bringing it to the floor or on the bill itself, has only one purpose: delay. I agree with ending this unnecessary facilitation of gridlock.

Make ‘Em Talk. The idea of returning to the good-old-fashioned, Mr. Smith Goes to Washington, talk-a-thon type filibusters is very popular, probably out of a false sense of nostalgia, though it was considered by Robert Byrd and Richard Durbin, among others, during the health reform debate and threatened during the debate over financial regulation reform. I’m not a fan, neither are Marcus and Koger, nor would be most senators. Though requiring such a filibuster would reduce its allure by increasing its cost to the minority (good), senators have far better things to do than to waste time reading the phone book on the Senate floor. We ought to be able to come up with reforms that solve the filibuster’s problems without wasting everyone’s time.

Speed it Up. As of the writing of a 2003 Congressional Research Service report on the filibuster, the 30 hours of debate that successful cloture allows had never been fully used. It has been used since then, most recently during the health reform debate in December 2009. The infrequent use of the full 30 hours is justification for reducing it. Marcus also points to the two-day delay between the filing of the petition for cloture and the start of the 30-hour clock. But that delay actually has a purpose, to which I’ll return in my next post.

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