Want To Filibuster? Sure, But Keep It Real

Huffington Post:

Use of the filibuster to stall legislation — when the minority party refuses to end debate on a bill unless 60 senators vote to do so — has escalated in recent years, rising from a rarity to the norm. Senate Majority Leader Harry Reid (D-Nev.) has been signaling his readiness to curb the tactic, often noting that he has faced 385 filibusters during his leadership while Lyndon Johnson had to deal with only one when he ran the Senate.

A number of proposals are under consideration, including a bill sponsored by Sen. Jeff Merkley (D-Ore.) and others that would essentially require an old-fashioned “Mr. Smith Goes to Washington”-style filibuster: Minority opponents of a measure would actually have to take the floor and hold forth for hours, rather than simply signal their intent to obstruct.

Making such a rule change in the Senate would normally require a 67-vote majority. But when the Senate comes back into session in January, Democrats could use a set of procedural rules often called the “nuclear option” and pass the changes with a simple 51-vote majority.

Two years ago, a similar proposal for reforming the filibuster from Colorado Sens. Mark Udall and Michael Bennet was defeated. Under that proposal, like the one from Sen. Jeff Merkley described above, would not ban filibusters, but would require that Senators engaging in a filibuster to actually occupy the podium in the Senate–not merely threaten to do so.

The partisan posturing you’re seeing around this debate is no accident, as the Washington Post’s Greg Sargent writes:

The extent of GOP filibustering is unprecedented. This chart shows that cloture motions (a rough measure of filibustering) suddenly spiked during the Obama years. Yes, they also spiked in 2007-2008, but according to Congressional scholar Norman Ornstein, the vast majority of those filibusters were mounted by Republicans, presumably to block legislation designed to embarrass George W. Bush. (Indeed, the motions to end filibusters during that period were filed mostly by Dems.)

The nature of GOP filibustering is unprecedented. Ornstein says this is true in two ways: First, in the extensive blockading of what used to be considered routine Senate business. And second, much of the filibustering is part of a concerted party strategy. “You’re not just looking at filibusters done by rogue senators or factions, like southern Democrats in the 1950s,” says Ornstein. “It’s the first time we’ve had a wide range of filibustering by a whole party.”

Desire by Democrats to reform the filibuster, to break the logjam caused by a GOP minority determined to obstruct, is of course tempered by the knowledge that Democrats will themselves someday find themselves in the minority. When that happens, they will surely want minority rights preserved. With that said, there’s an objective case to be made that Senate Republicans have taken the filibuster to an extreme Democrats have never even considered; which has resulted in a serious breakdown in the ability of that chamber to function.

Since it’s politically not easy to defend the current filibuster practice in the Senate, which requires only the threat of a filibuster to stall legislation, Republicans are expected to fight the use of Senate procedure to pass filibuster reform without the usually required two-thirds in favor. Democrats objected when a Republican-controlled Senate considered this option, the story goes, so to employ it now would be hypocrisy. Talking about this battle over Senate procedure and rules is preferable to explaining why Republicans are unwilling to filibuster in the manner the public expects them to, by actually holding the floor and speaking.

Democrats will win this battle if they can make it about Republicans’ unwillingness to make simple and sensible changes to reduce gridlock in the Senate. The debate shouldn’t be about the “nuclear option,” but rather why it’s necessary. If Mitch McConnell is upset about rule changes made by simple majority, he should be made to explain why there aren’t 60 votes to pass them. There is no proposal we know of that would “end” the filibuster, and the compromise measure likely to be introduced in January is certain to fall well short of the hyperbole coming from the GOP. As we said, Democrats are mindful of their own future as they look at this.

Are we wrong? Is there a poll we missed that says gridlock is cool by voters now?

12 Community Comments, Facebook Comments

  1. No filibusters on procedural floor motions, no secret holds, and return to something similar to (but not even as restrictive as) the pre-1973 read-from-the-phonebook filibuster. Republicans are just butt-hurt that they won’t be able to delay without effort or putting their names on the newscast.

    Also IIRC, Democrats in favor of the reform measure aren’t relying on exactly the same nuclear option rules that Republicans considered back in the 2000s; they argue that at the start of the session, the Senate is technically “new” and that the old rules don’t apply. The effect is the same, though – after it runs through all the procedural steps of the challenge, it will probably come down to a majority vote on adherence to the rules. The only difference is that Democrats won’t have completely blown the 2/3 rules change rule out of the water…

  2. MADCO says:

    American voters have deluded themselves. (gasp.)

    First they have convinced themselves that gridlock is good because gov’t and governing is bad.  The less the gov’t does, the less problems it can cause.

    They have convinced themselves this is so because  things were good or even great once when the parties split control of the thing.

    What they forget was that when  things were good because the partisan split was on – there was cooperation, not obstruction.

    How many filibusters did Reagan get? How many secret holds? (secret hold should be illegal)

    People are stupid – and the Senate’s only real mistake here is thinking most people care what they do at all.

  3. caroman says:

    Volunteer participation in the Obama campaign was significantly (like 80%) lower this year compared to 2008 based on my experience.  I believe it is in part due to the Senate gridlock.  Potential volunteers must have felt, “Why bother?” since nothing seemed to pass Congress.  

    Sensible filibuster reform is desperately needed.

  4. JeffcoBlueJeffcoBlue says:

    Apart from the reasonableness of the reforms, it’s good to have a response to the charge that Democrats objected to Frist.

  5. AndyjunctionAndyjunction says:

    This proposed change is not at all like the “nuclear option” Republicans discussed in the past. That would have ended the filibuster completely for presidential appointments, judges etc. They would have been subjected to a simple majority vote after a set period of debate.

    The change proposed by Democrats now only returns the filibuster to its historical form where a Senator is required to physically stand and speak in order to filibuster a nominee or legislation. They will still be able to block any legislation it will just require a little effort. That’s my understanding anyway.

  6. JeffcoBlueJeffcoBlue says:

    Did end anonymous holds IIRC. I agree that needs to go.

    Overall, Republicans are the ones who play games with the rules. It’s true with Mitch McConnell and it was true for Frank McNulty. If you mourn the loss of gentlemen’s agreements, I really believe there is one party to thank for that.

  7. JeffcoBlueJeffcoBlue says:

    Obama didn’t create Senate gridlock. If that was those volunteers’ rationale for not volunteering again, they were essentially punishing the victim.

  8. The biggest difference between this action and the Republican version is the last bit I pointed out: this is a “new session” rules vote. Under the Constitution, each house of Congress may determine its own rules, and the Supreme Court has ruled that no Congress can limit a future Congress via the rules of proceeding. In the House, the first act of a new session is to adopt new rules. In the Senate, it has been tradition to leave the current rules in place without a vote – essentially accepting them by proceeding to normal business. Some people argue that this is because the Senate is never really “new” – 2/3 of its members return from the previous session. However, that’s never been spelled out in any court ruling, and what rulings and past actions do exist seem to support the reformers’ position – that as the first act of a Senate session, the rules can be changed by majority.

    Where this starts looking like the “nuclear option” is that the Republicans will challenge this interpretation, saying that the Senate rules are persistent. They will challenge this and ask for a ruling, which will be referred to the Senate Parliamentarian. The Parliamentarian will respond with his interpretation, and that too will be challenged by whoever he rules against. In the end, a declaration by the Senate President Pro-Tempore backed by a majority vote will probably determine how the rules are interpreted. That ending is, essentially, the “nuclear option” for a rules change. The best scenario for Dems is that the Parliamentarian (who is theoretically non-partisan, but is appointed by the majority leadership) will rule in favor of the “new session” theory, giving them an extra level of legitimacy.

  9. Diogenesdemar says:

    of this country, i.e., the Constitution, has provisions for changes. The rules of the Senate are even less immutable, and should be allowed to change to allow necessary governance if there comes a time they no longer allow that body to properly perform its functions.  The current filibuster/cloture rules of the Senate (carved into stone and immutable since 1974. . .) no longer allow proper functioning.  

  10. AndyjunctionAndyjunction says:

    I understood the term “nuclear option” to mean the results of the rule change more than the process of the rule change. When the term was coined Republicans were proposing completely ending the filibuster in certain cases. But this change would not do that. The filibuster would still exist, just in the form it did previously. Most Americans think that’s the way it still works and have no idea that speaking on the floor is no longer required.  

  11. MADCO says:

    Yeah! And that never happens. Ever.

    Certainly never by the winning candidates own party. Never ever.

  12. The “nuclear option” – also sometimes called the “Constitutional option” or the “Byrd option” (Sen. Byrd was the first to note the parliamentary maneuver, apparently) – is about the procedure for changing the rules without following the rules for changing rules.  (FYI, the rules of the Senate state that the rules can only be changed by 2/3 super-majority vote.) The process I describe above covers the basics of it.

    So far the term has been limited to discussing changing the filibuster rules, because they’re the most obstructive and broken. But the same procedure could be applied to any rule…

Leave a Reply

Comment from your Facebook account


You may comment with your Colorado Pols account above (click here to register), or via Facebook below.