Friday, November 9, 2012

Get Filibuster Reform Right

It's looking more and more as if something will happen on filibuster reform. Greg has a total of 50 Members of the new Senate on record as supporting at least some kind of reform. That includes the Majority Leader, which makes some action at least somewhat likely.

The key to filibuster reform, however, is getting it right. And that's not easy.

There's a lot of bunk on filibusters, including in proposals from Senators, who should know better. For examples, there's been a flap for some time about trying to prevent "secret" holds. The problem is that making holds public wasn't likely to, and didn't, change anything. Much of the discussion seemed totally oblivious to why holds exist in the first place, and why a majority party might find it a useful part of Senate procedures. That's not to say that one can't oppose holds, but only to say that it's worth understanding this stuff before, not after, you propose specific reforms.

So for example Ezra Klein (who I'm pretty sure I disagree with about exactly what should happen) is exactly correct about this:
The problem with the filibuster isn’t that senators don’t have to stand and talk, or that they can filibuster the motion to debate as well as the vote itself. It’s that the Senate has become, with no discussion or debate, an effective 60-vote institution. If you don’t change that, you haven’t solved the problem.

Here's the deal. The Senate needs to decide whether it's going to be a chamber run by party majority; by 60 votes; or by some combination or other compromise.

If it's to continue to be a 60 vote chamber, then changing the aesthetics of it or marginally inconveniencing the minority (perhaps at more of a cost to the majority) is pointless.

If it's to be a majority-party-rule chamber, more or less the way that the House of Representatives has been for the last few decades, then there's no real point in hiding it with mumbo-jumbo.

I'm against both of those, however. I like the idea of retaining the current possibilities for individual Senators and small groups of Senators to have considerable clout. I also like the idea of preserving some protection for intense minorities, especially when they are opposing relatively indifferent minorities. What's more, while I'm very much in favor of strong parties, the current political system rewards partisanship almost everywhere; I'd like to see at procedures which at least open up possibilities for cross-partisan alliances. I also believe that different rules are appropriate for the different functions of the Senate: legislating, confirming executive branch nominations, confirming judges, and perhaps appropriating.

Now, if you want the 60 vote Senate, that's easy. If you want a majority-party-rule chamber, that's pretty easy, too. But if you have more complicated goals, then you have to be awfully careful about how you go about it.

Forcing a "talking" filibuster has virtually nothing to do with that. Changing the number of votes has little or nothing to do with it.

I've made my proposals. I'll be pressing them again. But the real key to all of this, again, is to figure out exactly what you want, and then design procedures to achieve it. Simply being frustrated at the status quo is very understandable (and a good prod to action), but we outsiders -- and Senators themselves -- can, and should, do better. Here's hoping for reform. And here's hoping for an intelligent debate about reform, and well-thought-out solutions.


  1. My thoughts:

    -it should take an affirmative vote of 2/5ths of senators present to continue debate, rather than the vote of 3/5ths chosen and sworn to end it.

    -Once they've voted to end the debate they should have the vote, instead of taking two more days.

    -Get rid of motions to proceed entirely.

    -Set time limits on debates for executive branch nominees.

    -No supermajority for amendments, and get rid of the filling the tree business. Minorities should be able to offer amendments from the floor and at least get a vote.

  2. "the idea of retaining the current possibilities for individual Senators and small groups of Senators to have considerable clout"

    There is only power to *stop* things from happening, no power for any group of any size to do anything. That's an unstable equilibrium.

  3. The burden needs to be reversed. If two-fifths of the sworn Senators need to affirm it, and the acting Senate leader can call for a snap vote at any time, then 40 obstructing Senators need to remain present continuously. This retains the filibuster for critical situations, but makes it much harder to use frivolously.

    The rest of Greg's suggestions, above, are also worth pursuing. (I just prefer this harsher proposal to his first bullet point.)

    1. That's always been my assertion as well. The forty-need-only-hide option seems lazy.

  4. I fail to understand why Your "Superbill" proposal ( 1 bill a year that can't be filibustered ) would lead to any kind of reform ore improvement whatever.

    How is it defined? What restrictions will there be on saying X is the Superbill this week, then saying Y is the Superbill next week?

    And how does it improve anything? All the lobbyist and insider pressure would then go into getting lobbyist-demanded provisions A, B, and C into the Superbill, and getting craven senators 1, 2, and 3 to say they won't vote for the Superbill unless A, B and C are in it.

  5. To be honest, I'd like a majority-based body. Our system already has a huge pile of checks and balances, we don't need to throw an extra-constitutional one into the mix.

    But if you have the (perfectly coherent!) view that filibusters can protect a minority but can also be abused, and right now they're being abused too often and should be employed less frequently, then it makes sense to target the things that you seem to be dismissing--the convenience and number of votes required to sustain a filibuster.

    I do wonder, though, if having a position that indifferent majorities should not overrule intense minorities just encourages all factions to up the intensity level and make every debate a "Hell no!" drag out fight.

  6. I rather thought that public holds would help, but the news seems unwilling to name specific lawmakers until much later in the cycle. There's no light, just the potential for light. And generally, the ones doing the holds don't care.

  7. I don't understand this: "Changing the number of votes has little or nothing to do with it." If you cut the threshold to 55, doesn't that reduce the ability of the minority to block stuff with a filibuster, because they have to get 45 people together rather than 40?

    1. Sorry, I wasn't clear at all. I mean the number of times that you vote per bill, not the number of Senators.

      Dropping the extra vote on the motion to proceed won't make much difference. Changing the number for cloture to 55 certainly will.

    2. Cool, that makes a lot more sense.

  8. Our country survived into the late 1990s (or really until 2009) without a routine 60 vote requirement in the Senate. Let's go back to majority rule in the Senate. It works and makes sense. Elections should mean something. If a party wins a majority in the Senate, they should be able to pass legislation. If the voters don't like what they do, it should be the voters' responsibility to throw the bums out and give the minority party power again.

    The only place where I could understand having a higher vote requirement is for lifetime judicial appointments. But I'd rather deal with that with term limits or requiring periodic reappointment than having "get 60 votes then you're there for life."

    With 2 branches in Congress, a separately elected President, an independent judiciary, and numerous lower levels of government, power is already sufficiently or even excessively diffused in our country. Allowing a 40 vote Senate minority the power to block all nominations and bills is unnecessary and contrary to the Founders' intent.

  9. The NFL Replay Challenge Rule could become the *Senate Filibuster Challenge Rule.*

    As an example, 6 challenges/filibusters a session. The rights of the Minority would be protected, but they would have to use the filibuster judiciously instead of gratuitously. They would have to save filibuster challenges for something that mattered rather than just throwing the Sands of Stall into every gear.

    The number could be negotiated.

    The nature of *How* you filibuster (like having to actually talk instead of just breezing by the Leader's office and calling in thru the doorway, "Hey Harr, we're on the way to Ruth's Steak House -- we're filibustering this bill too, tra la la.") could be part B of filibuster reform.

    1. Then you just add more items to the calendar, enough so they have to use up their filibusters. It's pretty simple. You load up your Borks so that you can get later Borks in without an argument.

    2. Worse, what's to stop the majority from simply offering exactly the same bill seven times, then doing whatever it pleases?

      IMO the key is forcing the minority to be physically uncomfortable during the process. Preserves it for serious issues while retaining flexibility.

  10. "I'd like to see procedures which at least open up possibilities for cross-partisan alliances"


    I'm not trying to be a jerk, I just really don't understand why this is important.

  11. Well, if the filibuster is to remain because it is a good rule I would like to see it expanded to ALL voting matters. No budget reconciliation, which favors Republicans most of the time.

    If the filibuster is good, lets have more of them.

    1. Have you seen California? This is where you can vote in a tax-credit on a majority-vote and can't remove it without a 2/3rds vote...

  12. I hope the current efforts at filibuster reform are successful, for the sake of our democracy...explained better (in cartoon form) here:

  13. I don't see what's so great about the filibuster in the first place that it should just be reformed rather than scrapped. Historically it's been used mostly by Southern Senators to stop civil rights, not by businesses or anything like that. The kinds of intense minorities Bernstein is talking about have no troubling influencing majorities in the Senate during the amendment process; they don't need the filibuster.

    1. Personally, my main fear is if it's scrapped, 30 years down the road we'll run in to some horrible christianist monstrosity and be S.O.L.


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