Monday, December 3, 2012

Today in Filibuster Debate 1

The NYT's "Room for Debate" feature today is about the filibuster. Especially good are the pieces by Senate scholars Greg Koger and Barbara Sinclair.

The main thing that Koger, Sinclair, and (in another piece) filibuster defender Richard Arenberg all have in common, and in common with most or all of the reformers inside the Senate, is that they're looking for a middle ground. Sinclair has a strong call for reform, and supports the elimination of filibusters on the motion to proceed to a bill and on the motions to go to conference along with "Some version of a proposal..." to "require filibusterers be able to muster 41 votes at any time during a filibuster." Greg agrees on beginning debate and going to conference, and adds executive branch nominations and appropriations bills to his list, and also supports the "41 affirmative" reform, perhaps with a "talking filibuster" feature (although see more on his thoughts about that one here). He would also like to see expedited procedures for measures with overwhelming support.

I agree with all of this. I haven't mentioned appropriation bills for some time, but I should: I agree that they shouldn't require a supermajority. Actually, the reason that I don't talk about it is that it requires a more detailed rules knowledge than I have....the trick is to make sure that if you do that, appropriations bills don't become a back-door way to pass legislation (I believe there's a point of  order against legislating on appropriations bills, but I don't know whether you would need to play with the rules to make them work properly in a situation in which appropriations bill get an automatic simple majority vote but other bills can be filibustered).

At any rate: the 41 affirmative vs. 60 negative issue is not, in my view, likely to be enough to really derail easy filibusters. I'm basically for it, but I suspect in practice it would essentially just be an easy (and perfectly good) way of very slightly reducing the real number needed to defeat filibusters. I'm also definitely for getting rid of any obstruction on going to conference and at least not opposed to eliminating obstruction on the motion to proceed, although in both cases I don't know that it will really make much of a difference. Of course, regular readers know that I'm extremely skeptical that "talking filibuster" reforms, even with the burden shifted to the minority, will do any good at all.

The big ones here are appropriations bills and exec branch nominations. I'd probably be for eliminating any obstruction at all on appropriations; as I've said, my preference on exec branch nominations would be to retain the debate/cloture mechanism, but with a simple majority required to overcome those filibusters, thus preserving individual or small group temporary holds.

Unfortunately, those big, meaningful, reforms are ones that no one in the Senate seems to be talking about right now.

Look, what most of us what to do is actually pretty difficult -- even if everyone agreed on the goal of retaining some protections for minorities and the ability of individual Senators to wield influence while at the same time ending the automatic, across-the-board 60 vote Senate, figuring out just how to do that by rule would be extremely tough. Add to it the need to get the votes in the actual Senate to effect change, and the job gets close to impossible. I'm not optimistic. But also not giving up yet.

At any rate, do read Sinclair and Koger -- they're among the very best on the subject.

1 comment:

  1. What about enforcing a talking filibuster that was meant to be exhausting? Like the other side can say, great - filibuster! From 5pm to 8am, and all day+night on weekends. And each senator has a five minute time limit, and you can't speak again until after a cloture vote. You need 41 to sustain. Oh, you want to sleep? Sounds like the filibuster just isn't that important to you.

    Or less extreme, just allow cloture votes to be held at any time - say, 3am. You want to sustain 41? They need to physically be there 7x24.


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