Monday, January 3, 2011

Filibuster Reform Week

I've spent much of last week talking about Senate rules over at Greg Sargent's place...and again, thanks to Greg for the opportunity.  Still, I guess I can look forward to another filibuster week over here, as the Senate prepares to consider procedural reform at the beginning of the new Congress.  So, here's a reset of how I see the issues.

1.  In the historic 111th Congress, we finally saw the triumph of the complete 60 vote Senate.  Nothing passed without 60 votes (and, because minority Senators often fully exerted their rights under Senate rules, many things did not pass despite having more than 60 votes because Senate floor time is scarce).  It's important to realize the context for this development: the filibuster is not Constitutionally mandated, and it has not been employed on most routine legislation and nominations until very recently.

2.  I believe that the current situation is unstable.  There simply is no way that majorities, over the long run, will put up with the full 60 vote Senate.  I agree with Walter Mondale and others that current Senates can change Senate rules by majority vote, but in particular I disagree with those, such as the New York Times today, who claim this can only be done on the first day of a new Congress.   Near as I can tell, there's a consensus among political scientists who are students of Congress that, one way or another, the only real obstacles to changing the rules by majority vote are political, not legal or Constitutional. 

3.  I think there are good reasons in both the construction of the Senate and in democratic theory to expect, and to justify, something beyond simply majority party rule in the Senate.  So I'd like to see careful reforms to return the Senate to what it had traditionally been -- a place where individual Senators retained considerable influence, but without an absolute 60 vote requirement to do anything.  My guess is that without careful reform, we'll eventually get a blunt elimination of the filibuster, and the Senate will then look a lot like the House does now.  I believe that would be a loss.

4.  From that perspective, I think that the Udall/Merkley proposals that the Senate will probably consider this week are underwhelming at best.  The emphasis on sunshine -- eliminating secrecy in holds, trying to devise a way to force filibusterers to act publicly -- is, in my view, unlikely to really change anything.  (Eliminating one procedural step -- the possible filibuster on the motion to proceed -- is probably a minor gain).

5.  On balance, I do think the reform package as I understand it wouldn't hurt, and might help a little, even though it wouldn't be the way I would go.  So I suppose I hope it passes.  However, the real key here is that Democrats should think of this as a first round of reform, and spend the next couple of years being ready to go with a more comprehensive package should the 2012 elections go their way.  Republicans, too, should be ready if they wind up with unified control of Congress and the presidency in 2013, although things being as they are it's somewhat more likely that the GOP will be slow to act because they will have spent six years defending the filibuster.

6.  Democrats should also be ready to threaten drastic actions if Republicans insist on 60 votes for nominations in the 112th Congress, and then have the party unity to block numerous confirmations.  I don't want the Democrats to actually go full nuclear and unilaterally eliminate minority party rights -- but that's the only meaningful weapon they have to prevent chaos.  Remember, we've never had the combination of a true 60 vote Senate along with a minority party that can easily produce 41 votes for almost everything.  In legislation, it's always possible to find compromises (and given the Democrat in the White House and Republican control of the House, we're going to get compromises whatever the Senate does with its rules).  But there's a fair chance that Republicans are simply going to shut judicial nominations down, and play havoc with executive branch nominations, and the majority Democrats need to be prepared to fight back by threatening to use their ultimate weapon.

OK, I think that's enough to start with.  I suppose I'll finish up by referring those who are interested and new around here to what I think rules reform in the Senate should look like.


  1. "(Eliminating one procedural step -- the possible filibuster on the motion to proceed -- is probably a minor gain)."

    what percentage of the floor time loss does this eliminate?

    Why didn't Reid extend the Senate hours, particularly during the lame duck session?

    Why didn't Obama/Reid insist that all outstanding nominations that had been approved by Ctee be voted on before they went home?

  2. The motion to proceed is already non-debatable (and so can't be filibustered) on nominations, so it's irrelevant to that.

    My guess is that in the lame duck, Reid did in fact threaten to extend hours (and keep them in until post-Jan 1), and that he won some cooperation in exchange for dropping that. (Well, we know he made the threat, since he did it publicly).

    On legislation, it's hard to know what percentage of time it would eliminate because it's only one of several possible filibusters/cloture clocks. We've also seen cases where cloture on the motion to proceed is used as a test vote, and if it passes then the minority doesn't actually use all it's possible time. So it's really hard to generalized about that stuff.

    I do think that Reid could have been more aggressive about scheduling prior to the lame duck, but it's hard to tell from where we sit whether it was him, or the Dem caucus.

  3. On #2, I liked saying "we can and should reform rules on the first day", noting the precedent for that, without referring to later days. You've convinced me that Democrats should more explicitly state that they can reform the rules at any time.

    On #4, the "sunshine" will also require 41 active votes to sustain the fiilbuster, rather than the requirement on the 60 votes to overcome it now. Senatorial vacancies and hospitalizations and dental work are common enough that this may be significant.

  4. ".....things being as they are it's somewhat more likely that the GOP will be slow to act because they will have spent six years defending the filibuster."

    You lost me here. The moment they decide it's in their short-term political interests, it will take the current GOP/Fox axis all of 48 hours, max, to turn the filibuster into some kind of Kenyan Marxist plot against all that is good and holy and American. (I'm especially looking forward to future majority leader Jim DeMint's big speech blasting the filibuster as a onetime tool of racists, and explaining that it was an accidental development that the Founders never intended anyway.)

  5. Jeff,

    Could be. I would note, however, that Republicans didn't eliminate the filibuster in 2003-2006. Now, I know it's not quite the same -- the Democrats didn't impose a full 60 vote Senate, and they did threaten it on judicial nominations. And perhaps they would do it in the future. But I do point out that certainty that the GOP will eliminate it as soon as they have unified control does leave unexplained why they didn't do it last time it would have helped them.

  6. Jonathan-

    Why would low-population states go along with filibuster reform? Although I disagree with the absurd level of power senators from Maine, Vermont, Wyoming, Alaska, the Dakotas, etc., have, I can't imagine that any of them would get behind real proposals to reform the filibuster, even if it helped their party. I just don't the Senate as a sustainable body long-term, given demographic trends and the growth of the east/west/south coastal states.

  7. ".....certainty that the GOP will eliminate it as soon as they have unified control does leave unexplained why they didn't do it last time it would have helped them."

    The difference is that the GOP / Tea Party base has been further radicalized since then. I just have trouble imagining them accepting the reverse of the situation we've seen in this last Congress, where their party loses or gives up on things despite big 50+ majorities, or constantly has to find ways to please the least ideologically pure members of the caucus. Imagine that Mitch McConnell or whomever tries to tell them that he's got 58 votes for some bill or appointment they really want, but they're not going to get it anyway, or it all has to be hollowed out to please the 40th and 41st most liberal Senators. I think there would be armed crowds surrounding the Capitol at that point.


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