Merkley's proposal doesn't seem to call for the actual elimination of the filibuster, but there's plenty to it that goes a long way toward curtailing its abuse, and bringing it back to the widely-held public conception of what the filibuster is (or ought to be), which is to say a difficult test of endurance that you'd only undertake on strong principle, as opposed to just putting holds on things, and then walking away, returning occasionally only to insist on another useless quorum call.
So keeping in mind that these are proposals that contemplate the continuance of the filibuster's existence, I'm just going to offer a quick run-down on the elements of the proposal, and tell you what I think:
#1) Narrow the Scope:
Eliminate the use of the filibuster on motions to proceed. Blocking deliberation has little place in a legislative body. If a Senator believes a bill is so deeply flawed that debate should be suspended, the senator still has the right to move to table the bill.
Good idea, and certainly one I've thought belonged in any package of reforms. The only thing I'd add is that it might need a safety valve. For example, I'd perhaps make the motion to proceed non-debatable only if offered by the Majority Leader (and maybe Assistant Majority Leader, too) or his designee. Otherwise, if I'm Jim DeMint or Tom Coburn, I'd just make motions to proceed to my own bills all day long and force votes on them. Even if I don't have any bills, I'd just make them up just to kill a whole day voting down motions to proceed on bills as quickly as I could make them up. Presumably at some point the Majority Leader shows up and gets preferential recognition from the chair so that they don't get the floor anymore to make their motions, but then the Majority Leader has to spend all day on the floor, and that'd be a problem.
#2) Further Narrow the Scope:
We should consider further narrowing the scope. For example, it is worth debating banning filibusters on amendments since members would still have the right to filibuster the final vote. It is also worth examining the value of limiting filibusters on appointing conferees.
Good idea, but it could present a little more difficultly to implement. This would require a rule either time limiting consideration of all amendments, or allowing a different threshold for cloture (if the cloture rule is retained) for amendments. You can't just "ban filibusters," since they have the negative existence problem. That is, they don't exist independently, but are the outgrowth of a rules loophole -- that being the lack of a mechanism for limiting debate other than the cloture procedure. So banning or limiting them requires cobbling together a new rule, rather than just flipping a switch on an old one.
#3) Create an Expedited Path for Nominations:
The Senate is failing in its responsibility to “advise and consent” on nominations, doing extensive damage to the other branches of government. This is an abuse of its responsibility.
We should consider, therefore, an expedited regular order for nominations. The regular order for each nominee might still be subject to a filibuster, but only under the revised filibuster requirements discussed below.
Good idea in general, and theoretically should have Republican support, since this was their original nuclear option aim. Another worthy suggestion I've heard: eliminate post-cloture time on nominations. Apparently, the reason they allow post-cloture debate is so that further amendments might be considered. But you can't amend a nomination, so once you've invoked cloture on it, you should just get right to the vote.
#4) Require a filibuster petition:
Require a substantial number of senators, perhaps 10, to file a filibuster petition to block a simple majority vote on an amendment or a bill. By creating a public record, senators have to take responsibility for obstructing the process. This also prevents a single senator from blocking the regular order.
This one I'd need more explanation on. I don't see it doing anything that a roll call vote doesn't do, in terms of putting people on the record as to whether they want to insist on a delay. It also seems hard to enforce independently. Suppose only nine Senators sign the petition, but yet Senators continue to object to unanimous consent requests to proceed on the matter, make long speeches, refuse to yield, and ultimately vote against cloture? What good has the petition requirement done you, even if they haven't complied with it? If you still retain a cloture rule with a threshold higher than a simple majority, what difference does it make if a Senator refuses or neglects to sign the petition, but fully intends to vote no on cloture anyway? I don't think I get that one.
#5) Require filibustering senators to hold the floor:
The public believes that filibustering senators have to hold the floor. Indeed, the public perceives the filibuster as an act of principled public courage and sacrifice. Let’s make it so.
Require a specific number of Senators -- I suggest five for the first 24 hours, 10 for the second 24 hours, and 20 thereafter -- to be on the floor to sustain the filibuster. This would be required even during quorum calls. At any point, a member could call for a count of the senators on the floor who stand in opposition to the regular order, and if the count falls below the required level, the regular order prevails and a majority vote is held.
Several folks have asked how this would work in practice. So here is an example.
Upon request by a member, the Senate President would make the following announcement.
“The Sergeant-at-Arms will bar the doors and the Clerk will take count of all who stand in opposition to the regular order.”
The clerk would then announce:
“All senators who stand in opposition to the regular order will declare their opposition.”
The President would then report one of the following:
“[#] senators stand in opposition. This fails to meet the number required to continue the suspension of the regular order. The regular order is restored and a vote on this [bill/amendment] will be held, according to the rules, at [time stated].”
“[#] senators stand in opposition. This meets the number required to continue the suspension of the regular order. Debate will continue.”
This accomplishes two important objectives. It makes a filibuster visible to all Americans. And it places the responsibility for maintaining the filibuster squarely upon those objecting to the regular order.
This approach creates two specific ways to overcome a filibuster. First, there is still the existing method of following the current rules for deliberation followed by a 60-vote cloture requirement. Second, however, is that a filibuster could collapse at any time if the filibustering senators fail to maintain the required floor presence.
Good idea in general. Interesting approach to ratchet up the number as time passes. That's a good compromise for an idea that's generally well-liked but hard to choose a number for. Increasing the burden as the annoyance and obstruction factor increases is a good weighting option. I like it! (Senators might be a little intimidated by the idea of the Sergeant at Arms barring the door, though! Still, it won't do any good if Senators can hang out in the cloakroom and only come out when they need to boost their numbers for a head count.)
#6) Require continuous debate:
The Senate could also require debate to be continuous. Under this requirement, if a speaker concludes (arguing either side) and there is no senator who wishes to speak, the regular order is immediately restored, debate is concluded, and a simple majority vote is held according to further details established in the rules.
This further expands the visibility of the filibuster. Americans who tune in to observe the filibuster would not see a quorum call, but would see a debate in process.
Good idea in general. Both 5 and 6 are what the public thinks filibusters are and ought to be anyway. Hard to see how you lose by giving them what they want (though there's always a way).
#7) Establish the right of the minority to offer amendments:
The Senate wastes enormous amounts of time trying to work out a structure for the presentation and debate of amendments on any given bill. The Senate needs a regular order for the presentation of amendments so that, in the absence of an agreement between the Majority and Minority leaders, debate will proceed.
This regular order must be defined in the rules, and I suggest a regular order that includes the following:
** Starting five hours after the start of debate, a member of the minority party would present an amendment chosen by the minority leader.
** The amendment would be debated for two hours, with time evenly divided between the majority and minority, followed by a vote. 6
** A member of the majority party would present the next amendment with similar rules.
** After each party has had the opportunity to present five [or some other modest number] amendments each, a final vote will be in order.
This regular order would still be subject to the filibuster on any amendment or final vote, but such a filibuster would have to follow the revised guidelines for filibusters.
This regular order would also be subject to any unanimous consent agreement that modifies it.
For example, leaders might negotiate an agreement to consider specific additional amendments and the body might consent. Or perhaps members of the minority or majority might start a filibuster by filing a petition because they wanted the opportunity to have additional votes on amendments. The leaders might then negotiate such an agreement and the body might consent.
This approach has several points of value:
- This addresses a major grievance of the minority, namely, the absence of an opportunity to have their ideas presented and debated. In that sense, it is a strong compensating factor for making the minority spend more time and energy on filibusters.
- It gives the majority and minority leaders time to attempt to work out a unanimous consent agreement.
- But if that attempt fails, the body can proceed to debate and vote, honoring its responsibilities as a legislative body.
- The majority and minority leaders have an incentive to work out an agreement, since they might not want to be in the uncomfortable position of choosing which amendments to consider.
More than fair. And one other objection that it addresses is the objection of reform opponents who insist that they don't want to "turn the Senate into the House." One of the key differences is preserved, in that the House does not guarantee the right of the minority to amend the bill during regular debate, and preserves only the right to a single motion to recommit. That's a major, major part of what makes the Senate the Senate -- at least according to the Senators who enjoy this power. And it makes a certain amount of sense to have one chamber that works on a strict majority rules basis, and one that guarantees the minority a chance to have its ideas tested against those of the majority. That's the key thing here: test those ideas out with a vote.
#8) Decrease the Segregation of Members
Members of the Senate are segregated by party. They sit on different sides of the aisle in the Senate chamber. They sit on opposite sides of the room in committees. They caucus separately. Even the pages on the floor are designated as “Democratic” pages or “Republican” pages.
These practices may not have been significant in the past when senators lived in Washington and socialized on evenings and weekends. But now senators work evenings and then fly home, greatly diminishing the time for informal interactions with each other.
The segregation of the senators by parties unnecessarily deepens the partisan divide and we should end it. It is worth observing, by the way, that many state legislatures do not practice such segregation, facilitating the forging of informal connections between members of different parties.
Here are three specific suggestions:
- Bolt down the desks in the Senate chamber permanently – fifty on each side -- and allow senators to choose desks anywhere they want on the floor among those available.
- End the segregation of senators in committee meetings. One committee, Homeland Security, has already done this.
- End the designation of pages by party.
Well, interesting. It comes from the right place. The only thing about the pages is that they sometimes have to carry sensitive materials that Senators of one party don't want anyone from the other party to see. But then, you could always send your own staff on those errands, I guess.
So that's it. There are plenty of other proposals out there, too. But this one was the most recent, so I thought I'd react. I've done it a little informally, but I did that in the interest of getting it out there for discussion, rather than spending the day crafting something more put-together.
What do you think?