Tuesday, December 28, 2010

Time for Filibuster Reform?

Now that Republicans have a solid House majority, the House in the next Congress won't be sending very many bills to the Senate that Republicans don't like.  Republicans also have visions dancing in their heads of capturing the Senate in two years, at which time they would no doubt deem it highly unfair of Democrats to employ the same obstructionist tactics they have employed the last few years.  As for the other side of the aisle, there is now unanimous support from Democratic Senators for filibuster reform.   The stars may therefore finally be aligned this January to consider reforming Senate rules to limit use of the filibuster.  The chart below (from Think Progress) illustrates the size of the problem:

What is so unfair about the filibuster, aside from its obvious violation of the democratic principle of majority rule, is that the public tends to blame the majority for not being able to get legislation passed, even when a minority are obstructing it.  A lot of the administration's supposed supporters, who should know better, have blamed the president or the Senate leadership for being unable to pass, or for being forced to compromise, on key legislative battles, all caused by the opposition's unprecedented abuse of the filibuster.  People also may not realize how much delay is caused by current rules, when requests for cloture votes have become routine.  Now, even one Senator can hold up legislation for days before a cloture vote can be held, even where the minority may not have the necessary 40 votes to prevent a vote on the actual bill.  Most of the proposals floating around would at least streamline the process to reduce those delays, and some would go further.

It may not be important to learn all the different ideas that have been suggested for reforming the process, because only Harry Reid's idea, which will be some version of one of the following, is probably going to matter.  Here are some anyway.  Senator Bayh suggested reducing the number of votes required for cloture from 60 to 55.  It should be remembered however, that the cloture vote requirement used to be two-thirds.  When it was reduced to 60, which was intended to speed debate, the use of the filibuster paradoxically started to increase, to the point where it now seems to take a 60 vote super-majority to get anything done in the Senate.  So reducing the number to 55 might just force all significant Senate business to get a still-obnoxious 55 votes.  (Remember that the Senate starts out being somewhat anti-democratic, because the voting power of Senators from states with small populations is equal to that of Senators from states with much larger populations.  Therefore any super-majority requirement has the potential for increasing the power of Senators who don't represent large numbers of actual people, even further.  I realize of course that this arrangement seems more unfair to me as someone living in California, than it might if I lived in Wyoming or Vermont.  That unfairness is in the Constitution, however, while the filibuster is not.)  More interesting were Bayh's proposals to increase the number of Senators required to petition to continue debate, which might reduce the number of filibusters.  Senator Harkin has been talking for years about a plan to drop the number of votes required for closure day by day, allowing the minority to delay a vote but only for a set number of days before majority rule prevailed.  Senator Udall favors simply eliminating the 60 vote requirement for procedural votes, but there may be too many Senators still attached to some form of the filibuster to allow that idea to pass.

Senator Merkley has outlined a plan that would make filibustering more similar to what the public imagines a filibuster to require.  It would also force the minority to muster a certain number of Senators in support of continued debate, and force them to hold the floor.  That way people would at least know who is responsible for obstructing the business of the Senate.  (See Ezra Klein's interview with Senator Merkley about this plan, which also explains that filibustering has never required Senators to hold the floor, despite popular images of Mr. Smith and Mr. Thurmond.  That is only the mythology of the filibuster.)  Senator Merkley's idea has a lot of appeal, but perhaps would not end the filibuster so much as it would restore some of its romanticism.   If those kinds of rules made the filibuster less frequent, however, they would still serve their purpose.

The most important goal should be to reduce the frequency of cloture votes, whatever number of votes is going to be required to end debate.  Everyone understands that the Senate is supposed to be a more deliberative body than the House, and that Senate minorities should have power to slow down debate, and possibly even to block some bills from being voted upon.  But the minority should not have the power to delay every single appointment and every single bill, and there is no reason to require a separate procedural and a substantive vote for every important bill.  Yet that is the point we have nearly reached, and that kind of minority power is destructive of democracy.

For more information on curbing the filibuster, go to Fixthesenatenow.org.

UPDATE (12/30/10):  A report on TPM suggests that reform of the filibuster could be more modest than many Democrats would probably prefer.  Harry Reid is apparently in negotiations with the Republican leadership on this issue.  Republicans will resist changes to procedures that currently allow even one Senator to delay a vote to proceed with a bill.  My sense is that Reid himself is frustrated enough with the delays caused by these procedures that he would prefer significant reform.  But Reid's bargaining power to achieve that depends on how strongly the bare Democratic majority favors going to the mat on that issue.  Even though there was unanimous support among the Democrats for some kind of reform (except for Chris Dodd, who is leaving), what is not clear is how strong that support is, and for what kind of reform. If very weak reforms are instituted in January, that should be seen as a sign that some Democrats in the Senate don't want to change the rules all that much.  My guess is that there are enough Democrats who want only a tiny bit of change, such that we will only see modest reforms of the filibuster.  Then we will probably see the usual suspects on the left complaining about how weak Harry Reid is, forgetting once again that he only has as much power as is given to him by the cats in the Senate that he must herd.

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