A consensus seems to be developing that "something needs to be done" about the filibuster. There is no doubt at all that the Republicans' ability to use the filibuster has had a damaging impact on health care reform. It is likely to be a similar story next year on immigration reform, climate change legislation and financial sector regulation.
However, there appears to be no consensus emerging on what that something should be.
Follow me after the jump for a discussion of possible options.
A common cry at the moment is to abolish it. The Founding Fathers wanted a situation where the three co-equal branches of Government balanced each other, and therefore ensured each had tools to do that job. But they did not intend to create a situation where one could easily block the others. The filibuster was supposed to be a tool to prevent the "tyranny of the majority" from imposing unconscionable burdens on a minority. However, the filibuster depends on having legislators who are responsible enough only to use it on absolutely crucial issues, not as a standard tool to be wheeled out to stop a President from governing. The Founding Fathers could never have imagined a Senate in which 40% of its members put their own self-interest and party interest ahead of the interests of the country.
Against that, however, there is the concern that sooner or later, the Republicans will take back power, and the Dems will want that filibuster. History shows that they have not used it often, but they have used it from time to time to block some of the worst excesses of the Right. In the long run, does the filibuster do more harm than good, or are the current problems just a consequence of the irresponsible minority we have at the moment?
A less extreme approach would be to increase the numbers required to filibuster. The way the country is balanced, it is actually quite rare to get a 60 seat majority, which means that in practice, the minority party will almost always be able to stop any piece of legislation. As others have pointed out, the effect of having two Senators per state regardless of population is that a piece of legislation could be stopped by Senators representing barely a quarter of the country. That is an impediment to democracy. If the number required to filibuster was increased to 45, that would reduce the scope for doing so, particularly in normal times when you could expect to find moderates on both sides of the fence who would hold their own side to account if it was acting unreasonably. It would also carry less risk of denying the Dems a tool they might want to use in future.
A variant on this would be to tie the filibuster to the number of Senators present and voting, rather than having an absolute number. If the filibuster required 45% of those present to oppose, then legislation could be passed by 80 Senators voting 45-35; or looked at another way, if there were 55 Senators present who wanted to pass a bill, opponents would need to maintain a presence of 45 at all times to block the legislation. This would put a much greater onus on a minority that wanted to block legislation, rather than putting all the burden onto a significant majority that wanted to pass it.
Others have suggested changing the consequences of a filibuster, so it only delays rather than stopping legislation. A suggested mechanism for this was to allow 40 Senators to block legislation on a first cloture vote, then allow a second vote to be tabled a set time afterwards, which would require 45 to block, and so on until after, perhaps, a couple of weeks, a simple majority would pass the bill. One significant drawback of this approach is that it gives the majority no incentive to take account of the legitimate concerns of the minority. They just need to hold firm in order to ram their legislation through. But it does mean that legislation could be passed on the basis of what the majority party has been elected to deliver.
A different approach that I have not seen suggested anywhere would be to limit it to certain issues. In the UK, the House of Lords, which is a revising chamber rather than a co-equal branch, has a self-denying ordinance. It will not block any legislation that was in the governing party's election manifesto, or any budget measure. Would it be possible to draw up rules as to the type of legislation which could or could not be filibustered? If so, what should the parameters be? If you ban a filibuster for legislation with significant budgetary consequences, you may create a loophole whereby if you put a budgetary provision into a routine bill, you make it filibuster-proof. You may also leave Republicans free to filibuster social measures such as DADT and DOMA, where they will be at their most vitriolic and obstructionist. (I hesitate to introduce policy arguments into a debate on principle about how the Senate should conduct itself, but I fear in the current environment that is necessary.) Are there other rules that could be drawn up to limit the type of legislation for which a filibuster could be used?
Another possible change might be to require cross-party support for any filibuster. This depends on the theory that if legislation is bad enough to deserve to be blocked, it should be possible to find people in both parties who agree. Unfortunately, given the tendency of conservadems to be prepared to oppose their party line, and of Republicans never to do so, I doubt that this on its own would be sufficient. It might however be worth considering as one check on abuses of the filibuster along with other reforms.
Finally, another idea that has been talked about a lot is to make them do it. Go back to the old days, when rather than just having a procedural vote, they had to actually stand on the floor of the Senate and keep talking for days on end. Making them actually work for the filibuster would, it is argued, help to ensure that it is only used for those very few measures of such importance that it is justified, and would help to demonstrate the obstructionist tactics of those using it.
My personal view at the moment is that a combination of reducing the number required, and putting the onus on the blockers to keep their numbers up at all times by tying the number to the number of Senators present and voting, would deliver the reform that is needed without risking depriving the Dems of a tool they will need in the future. But this is not a strongly held view, and I am very much open to persuasion that another route would be better.