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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.

Originally posted to ultraviolet uk on Sun Dec 27, 2009 at 03:25 AM PST.

Poll

How should the filibuster be reformed?

19%10 votes
11%6 votes
9%5 votes
9%5 votes
1%1 votes
1%1 votes
28%15 votes
17%9 votes

| 52 votes | Vote | Results

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Comment Preferences

  •  Tip Jar (6+ / 0-)

    Chill the f*** out. I got this.

    by ultraviolet uk on Sun Dec 27, 2009 at 03:25:41 AM PST

  •  40 nay votes (5+ / 0-)

    One simple reform you haven't listed:  Instead of requiring 60 "aye" votes to achieve cloture, require 40 "nay" votes to prevent cloture.  The obstructing party would then be forced to keep their 40 naysayers on the Senate floor throughout the attempted filibuster, which would make the process highly inconvenient for the obstructing party -- as it should be.

  •  How about (4+ / 0-)

    a combination of the ideas.

    Reduce the required votes to override a filibuster to 55.

    Force them to you know actually filibuster.

    Restrict them to one or two filibusters per member per legislative session.  In other words, Tom Coburn can only filibuster once or twice between 2008-2010 so he'll have to choose wisely.

    Although I like the idea of tying the filibuster to the number of Senators present, I could easily see it being abused by the GOP if they regain the majority by having one Senator coming in at 4am and holding a vote with he being the only one present to vote.  Also, I could easily see the GOP hold a vote to end debate at 3am when the opposition only has 10 votes present as a way to override.

    I think if you reduce the number to 55, allow each senator 1 or two opportunities and force him or her to actually work those filibusters you will see the number of filibusters go down immediately.

    This is your world These are your people You can live for yourself today Or help build tomorrow for everyone -8.75, -8.00

    by DisNoir36 on Sun Dec 27, 2009 at 04:56:45 AM PST

    •  Present and voting (2+ / 0-)
      Recommended by:
      david78209, ultraviolet uk

      First, your example of 1 Senator at 4 a.m. ignores the requirement that a quorum be present to do business. That's a non-starter.

      Second, going back to 'present and voting' gives Senators a third option. This year, the only way Snowe could 'help' the bill was to stand and declare on the record 'Aye'; 'present and voting' would allow someone like her to 'help' by just being quiet, which is a lot easier to defend in the next election than that 'Aye' vote.  IIRC, this is how LBJ got the 1957 Civil Rights Bill through the Senate; southern Senators did not have to cast any vote at all.

      Deoliver47 was right and deserves some apologies

      by Clem Yeobright on Sun Dec 27, 2009 at 06:23:12 AM PST

      [ Parent ]

  •  I like your conclusions, though (1+ / 0-)
    Recommended by:
    ultraviolet uk

    I'd add forcing them to actually do a filibuster.  In fact, I might be persuaded that they should go back to the old way of doing it where nothing else got done until the filibuster was broken.  By making it so painless, with all other business going on as usual, we've taken away both the pressure to compromise and the downside for the recalcitrant ones.  By all means, a filibuster should never be what it is now, an assumed and rather easily accomplished non-event.  The fact that it has been allowed to be a routine part of doing business in the Senate is just silly and wrong.

    -7.62, -7.28 "Hold fast to dreams, for if dreams die, life is a broken winged bird that cannot fly." -Langston Hughes

    by luckylizard on Sun Dec 27, 2009 at 06:07:04 AM PST

  •  Let the herd be heard (1+ / 0-)
    Recommended by:
    ultraviolet uk

    Make them do it has another consequence. As they talk, they will be forced to publicly use actual words. This puts the party of Lincoln in opposition to a quotation often attributed to Lincoln:

    It is better to remain silent and be thought a fool than to open one's mouth and remove all doubt.

    During a filibuster, the most idiotic sound bytes of each day will make the national news.

  •  Another option (1+ / 0-)
    Recommended by:
    ultraviolet uk

    Historically, the filibuster was only used on average on a certain percentage of votes. I can't remember what the percentage was but it was relatively low.

    It is obvious that this Congress is overusing and abusing the privilege. For the new session, restrict the number of filibusters that could be called and that would include the holds that individual Senators put on nominations, etc.

    It would force the opposition to carefully think about just what they wanted to filibuster as opposed to using it for everything.

  •  The filibuster is not meant to be a veto. (2+ / 0-)
    Recommended by:
    Triscula, ultraviolet uk

    I realize that can work against us in other sessions, but definitely it needs a combination of the suggestions.  First and foremost, they should make them do it.  Just like we had to give up the amendment to the HCR that would have given us Medicare for all before it was even voted on, because one of the Republicans required it be read in its entirety first (600 pages, alas).

    The minority is given too much power, power that the Dems did far too little with in Bush's time.  I guess that Dems just don't have enough 'dick' in them though...which is why (for the most part) we like to vote for 'em, huh?

    Also, it should be a more tactical decision, whether to filibuster -- so clearly, one can't filibuster everything.

    The filibuster was meant to add more time to discuss something that wasn't being discussed properly.  Any filibuster should be comprised of the party requesting the filibuster as well as his peers, and they must talk ABOUT the bill, or at least germaine topics.  I think that a sliding scale of how many votes it takes to overpower one should be used, with that percentage growing smaller and smaller as time goes on.

    I also like the idea of making 40 senators vote 'no', rather than 60 voting 'yes', or better still, make everyone vote yea or nay on cloture, make them show their colors.

    The work goes on, the cause endures, the hope still lives and the dreams shall never die. - Sen. Edward M. Kennedy

    by Stymnus on Sun Dec 27, 2009 at 07:34:50 AM PST

  •  Lots of great suggestions here (1+ / 0-)
    Recommended by:
    ultraviolet uk

    I would love to find a way to push a discussion/debate about this into the mainstream.  I think it's really important.  How likely are we to see much support for changing these rules from our Democratic senators?  Anyone know?

    "You must be the change you wish to see in the world." -Gandhi

    by Triscula on Sun Dec 27, 2009 at 09:07:10 AM PST

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