• The filibuster, part 6: Deliberate, not too long, mostly bills

    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.

    When I began this summer project on the filibuster, I didn’t know enough about it to form my own opinion on whether and how to reform it. Now I do. I’m sympathetic to the notion that it is far too easy for the Senate’s minority to obstruct and delay. Scott Lilly makes a good case that the Senate

    fails to complete much of the work for which it is responsible and falls so far behind schedule in completing the work it does do as to seriously undermine the capacity of the entire federal government to respond in an effective and efficient way to the problems facing our country.

    Yet I’m also sympathetic to the notion that debate more deliberative and open than occurs in the House is of some value. Hence, the filibuster should be reformed, but not too much.

    These are two principles at odds. Providing the minority rights to consider and debate, but not to unduly delay and obstruct is a balancing act. But the two principles can be better balanced. The key is to permit reasonable delay so senators can review bills and nominees, but not to allow them to be open ended. The goal should be to strengthen cloture, not weaken filibuster or make it more onerous.

    As explained in the Congressional Research Service report on this topic, cloture has far more value than just ending debate. It is also a means of streamlining the process of amendments. As such, it’s used as an organizing force, to get things done, even when obstructionist motivations are not present. It helps senators with contradicting incentives accomplish the nation’s business. In fact, that’s the purpose of the two-day ripening period between submission of the cloture petition and the cloture debate. Senators need to prepare and submit their amendments. Once the two-day window closes, so does the opportunity to submit an amendment.

    So, cloture has value that can be enhanced and strengthened while providing time for senators (minority and majority alike) to participate. To do so, and in looking over the various proposals I reviewed last week, I suggest the following as one set of possible reforms:

    • If there need be a reduction in the cloture threshold, do it across the board, once and for all, not in steps that lengthen the legislative process, as proposed by Tom Harkin. For example, reduce the cloture threshold from a three-fifths (60 vote) to a four-sevenths (58 vote) majority.
    • Adopt Michael Bennet’s idea and impose expiration dates on nomination holds, executive and legislative alike. A hold in this case should be for purposes of review, not for indefinite obstruction. Extend the expiration date in instances where the hold is bipartisan. Perhaps the length of delay could be proportional to degree of bipartisanship in some fashion.
    • Institute Bennet’s proposal to reverse the bias of the cloture vote. Force the minority to produce 41-votes to continue debate, not the majority to produce 60 to end it.
    • Create a one-filibuster-per-bill rule by eliminating the ability to filibuster a motion to proceed. (Separate filibusters on amendments would be possible.) Forcing the majority to wait out two rounds of cloture for each bill is unnecessarily dilatory (once on the motion to proceed, once on the bill itself).
    • Further limit debate. Thirty hours per cloture vote is unnecessary and rarely fully used (never before 2003, though a few times since). Cut the time to some length that seems binding. Lilly suggests 16 hours.

    Those are just my favorite ideas to date. I’m sure we’ll hear about others. Notice that they mostly focus on making cloture easier, not making filibuster harder. Moreover, they preserve important but reasonable pauses in the legislative process. Readers who can’t get enough of this stuff and want to know what someone more expert than I thinks about it should read Jonathan Berstein’s favorite reform ideas.

    We should all want a more efficient Senate, provided all sides of a debate are heard as much as necessary, but no more, and largely on bills of import (not motions and minor executive nominations). So, my charge to the Senate: deliberate, not too long, mostly bills (h/t Michael Pollan).

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    • I would reduce cloture to 55 votes. No more secret holds. No holds longer than 3 months. Once that time is up, another hold by someone else may not be used. Alternatively, anyone not receiving a hearing within 6 months should receive an automatic recess appointment. The Senate would then still have the right to hold hearings on these appointments and could choose to not confirm the automatic recess appointment.

      Steve

    • Outstanding discussion and analysis of the filibuster Mr. Frakt. Thank you for increasing my knowledge on the subject tremendously.