The new Senate will face one of its most momentous decisions
in its opening hours on Wednesday: a vote on whether to change its rules to
prohibit the widespread abuse of the filibuster. Americans are fed up with
Washington gridlock. The Senate should seize the opportunity.
A filibuster — the catchall term for delaying or blocking a majority vote on a
bill by lengthy debate or other procedures — remains a valuable tool for
ensuring that a minority of senators cannot be steamrollered into silence. No
one is talking about ending the practice.
Every returning Democratic senator, though, has signed a letter demanding an end
to the almost automatic way the filibuster has been used in recent years. By
simply raising an anonymous objection, senators can trigger a 60-vote
supermajority for virtually every piece of legislation. The time has come to
make senators work for their filibusters, and justify them to the public.
Critics will say that it is self-serving for Democrats to propose these reforms
now, when they face a larger and more restive Republican minority. The facts of
the growing procedural abuse are clearly on their side. In the last two
Congressional terms, Republicans have brought 275 filibusters that Democrats
have been forced to try to break. That is by far the highest number in
Congressional history, and more than twice the amount in the previous two terms.
These filibusters are the reason there was no budget passed this year, and why
as many as 125 nominees to executive branch positions and 48 judicial
nominations were never brought to a vote. They have produced public policy that
we strongly opposed, most recently preserving the tax cuts for the rich, but
even bipartisan measures like the food safety bill are routinely filibustered
and delayed.
The key is to find a way to ensure that any minority party — and the Democrats
could find themselves there again — has leverage in the Senate without grinding
every bill to an automatic halt. The most thoughtful proposal to do so was
developed by Senator Jeff Merkley of Oregon, along with Tom Udall of New Mexico
and a few other freshmen. It would make these major changes:
NO LAZY FILIBUSTERS At least 10 senators would have to file a filibuster
petition, and members would have to speak continuously on the floor to keep the
filibuster going. To ensure the seriousness of the attempt, the requirements
would grow each day: five senators would have to hold the floor for the first
day, 10 the second day, etc. Those conducting the filibuster would thus have to
make their case on camera. (A cloture vote of 60 senators would still be
required to break the blockade.)
FEWER BITES OF THE APPLE Republicans now routinely filibuster not only the final
vote on a bill, but the initial motion to even debate it, as well as amendments
and votes on conference committees. Breaking each of these filibusters adds days
or weeks to every bill. The plan would limit filibusters to the actual passage
of a bill.
MINORITY AMENDMENTS Harry Reid, the majority leader, frequently prevents
Republicans from offering amendments because he fears they will lead to more
opportunities to filibuster. Republicans say they mount filibusters because they
are precluded from offering amendments. This situation would be resolved by
allowing a fixed number of amendments from each side on a bill, followed by a
fixed amount of debate on each one.
Changing these rules could be done by a simple majority of senators, but only on
the first day of the session. Republicans have said that ramming through such a
measure would reduce what little comity remains in the chamber.
Nonetheless, the fear of such a vote has led Republican leaders to negotiate
privately with Democrats in search of a compromise, possibly on amendments. Any
plan that does not require filibustering senators to hold the floor and make
their case to the public would fall short. The Senate has been crippled long
enough.
August 27,
2010
The New York Times
By NORMAN ORNSTEIN
Washington
AFTER months of debate, Senate Democrats this summer broke a Republican
filibuster against a bill to extend unemployment benefits. But the Republicans
insisted on applying a technicality in the Senate rules that allowed for 30 more
hours of floor time after a successful vote to end debate. As a result, the bill
— with its desperately needed and overdue benefits for more than 2 million
unemployed Americans — was pointlessly delayed a few days more.
The Senate, once the place for slow and careful deliberation, has been overtaken
by a culture of obstructionism. The filibuster, once rare, is now so common that
it has inverted majority rule, allowing the minority party to block, or at least
delay, whatever legislation it wants to oppose. Without reform, the filibuster
threatens to bring the Senate to a halt.
It is easy to forget that the widespread use of the filibuster is a recent
development. From the 1920s to the 1950s, the average was about one vote to end
debate, also known as a cloture motion, a year; even in the 1960s, at the height
of the civil rights debates, there were only about three a year.
The number of cloture motions jumped to three a month during the partisan
battles of the 1990s. But it is the last decade that has seen the filibuster
become a regular part of Senate life: there was about one cloture motion a week
between 2000 and 2008, and in the current Congress there have been 117 — more
than two a week.
Even though there might be several motions for cloture for each filibuster,
there clearly has been a remarkable increase in the use of what is meant to be
the Congressional equivalent of a nuclear weapon.
Filibusters aren’t just more numerous; they’re more mundane, too. Consider an
earlier bill to extend unemployment benefits, passed in late 2009. It faced two
filibusters — despite bipartisan backing and its eventual passage by a 98-0
margin. A bill that should have zipped through in a few days took four weeks,
including seven days of floor debate. Or take the nomination of Judge Barbara
Milano Keenan to the United States Court of Appeals for the Fourth Circuit: she,
too, faced a filibuster, even though she was later confirmed 99 to 0.
Part of the problem lies with today’s partisan culture, in which blocking the
other party takes priority over passing legislation or confirming candidates to
key positions. And part of the problem lies with changes in Senate practices
during the 1970s, which allowed the minority to filibuster a piece of
legislation without holding up other items of business.
But the biggest factor is the nature of the filibuster itself. Senate rules put
the onus on the majority for ending a debate, regardless of how frivolous the
filibuster might be.
If the majority leader wants to end a debate, he or she first calls for
unanimous consent for cloture, basically a voice vote from all the senators
present in the chamber. But if even one member of the filibustering minority is
present to object to the motion, the majority leader has to hold a roll call
vote. If the majority leader can’t round up the necessary 60 votes, the debate
continues.
Getting at least 60 senators on the floor several times a week is no mean feat
given travel schedules, illnesses and campaign obligations. The most recent
debate over extending unemployment benefits, for example, took so long in part
because the death of Senator Robert Byrd, a Democrat from West Virginia, left
the majority with only 59 votes for cloture. The filibuster was brought to an
end only after West Virginia’s governor appointed a replacement.
True, the filibuster has its benefits: it gives the minority party the power to
block hasty legislation and force a debate on what it considers matters of
national significance. So how can the Senate reform the filibuster to preserve
its usefulness but prevent its abuse?
For starters, the Senate could replace the majority’s responsibility to end
debate with the minority’s responsibility to keep it going. It would work like
this: for the first four weeks of debate, the Senate would operate under the old
rules, in which the majority has to find enough senators to vote for cloture.
Once that time has elapsed, the debate would automatically end unless the
minority could assemble 40 senators to continue it.
An even better step would be to return to the old “Mr. Smith Goes to Washington”
model — in which a filibuster means that the Senate has to stop everything and
debate around the clock — by allowing a motion requiring 40 votes to continue
debate every three hours while the chamber is in continuous session. That way it
is the minority that has to grab cots and mattresses and be prepared to take to
the floor night and day to keep their filibuster alive.
Under such a rule, a sufficiently passionate minority could still preserve the
Senate’s traditions and force an extended debate on legislation. But frivolous
and obstructionist misuse of the filibuster would be a thing of the past.
