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I am far from the proponent of "destroy the fillibuster" (I think it is a significant protection on the potential for a slim majority to pass legislation in a hasty or potentially discriminatory/retaliatory manner)but as it has been abused in recent years, it has turned the Senate from the "world's greatest deliberative body" into a mess.  Having thought about it, I want to suggest a simple solution.

Under current rules, there must be 60 "yay" votes in order to close debate, no matter how many folks abstain or are otherwise not present.  This means folks can weasel and not appear on the floor and don't count.  My suggestion is quite simple--we don't change the percentage required, but simply change how we count it.  As long as there are 40+ "nay" votes on the cloture motion, debate/fillibuster continues--if there are fewer than 40 nay votes, the process moves forward.  Why do I like this better than the "just get rid of it?"  Let's talk after the fold.

  1.  Preserves the sometimes significant function of the fillibuster.  Realistically, no one party is going to be in the majority for all eternity.  The preservation of some rights and ability of the minority to shape debate is significant.
  1.  Forces those who wish to continue debate/inaction to be on record as doing so, rather than letting people abstain and function as a silent fillibuster.  Example--on the cloture vote on the original Obama tax plan (extend cuts for those making under 250K, eliminate cuts above),the margin was 53-37, with 10 GOP not voting--they didn't have to because their votes weren't needed.  Under my proposal, cloture would be invoked because there were not 40 "no" votes.
  1.  Consistent with prior practice and use of the fillibuster.  All too often, our position on the fillibuster varies largely based on who's using it.  We (rightfully) found the "nuclear option" wrongheaded when the GOP considered using it to move forward with judicial nominees under Bush despite a fillibuster from the Democrats.  However, we now scream and yell that the fillibuster is unconstitutional.

Is this going to prevent every fillibuster?  No, particularly since the GOP has placed an ever-increasing premium on party discipline and the margins are tighter in the next Congress.  But it means fillibustering has a cost, and places the onus on those who want debate/a fillibuster to continue indefinitely to come up with the votes, rather than placing the onus on those who want to move a legislative agenda forward.  It seems to me that's a much more sensible place to start.

Originally posted to profmatt on Thu Dec 16, 2010 at 12:12 PM PST.

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Comment Preferences

  •  this is better (3+ / 0-)
    Recommended by:
    happy camper, m4gill4, HylasBrook

    than the status quo, but ultimately I don't support it.  Majority rule is the way to go, any form of filibuster rule that allows the minority to block legislation or nominations wanted by the majority should be considered unconstitutional.

    That's the moral argument.  The practical one is that you're kidding yourself if you think the Republicans won't override any form of filibuster on a simple 50+VP vote if they ever really want something and 41 Democrats are blocking it.  That's the lesson of the "nuclear option" fracas of 2005.  It really only takes 50+the VP to declare any senate rule "unconstitutional" and proceed on majority vote.  There's no appeal to the Supreme Court, and the public gives less than a rats ass about senate rules.

    So you may as well do away with the fig leaf and let the majority rule and be held accountable for their decisions to the voters.  That's how democracy is supposed to work.  Giving the minority power to do anything but voice dissent and offer amendments dilutes the public's ability to figure out who is at fault when they don't like how their government behaves.

  •  Not a bad idea. (1+ / 0-)
    Recommended by:
    HylasBrook

    But personally, I don't see any evidence that even with NO fillibuster, and majority vote on all bills, that the Dems will be any less filled with excuses for not being able to pass progressive legislation.  

  •  This would be a step in the right direction (0+ / 0-)

    to make the opposition have to at least show up to vote 'No'.

    There should never be a tax benefit for companies that screw over American workers.

    by bear83 on Thu Dec 16, 2010 at 12:55:17 PM PST

  •  Actually (1+ / 0-)
    Recommended by:
    profmatt

    This is exactly what those pushing for Senate rules reform are focusing on right now, as I wrote yesterday:

    Instead of lowering the threshold, here is a list of the changes to Senate rules that are on the table, as proposed by a list of advocacy organizations taking part in this campaign (Daily Kos is one of those organizations). Numbers 2-7 are the changes to focus on, since #1 is a reiteration of The Constitutional Option and #8, as I noted, isn’t going to happen. I have notes explaining the changes to each:

    1. On the first legislative day of a new Congress, the Senate may, by majority vote, end a filibuster on a rules change and adopt new rules. [The Constitutional Option.]
    2. There should only be one opportunity to filibuster any given measure or nomination, so motions to proceed and motions to refer to conference should not be subject to filibuster. [Currently, 60 votes must be achieved just to get to floor debates and amendments, as well as ending floor debates and amendments.]
    3. Secret "holds" should be eliminated. [A non-controversial change with broad, bipartisan support. If a Senator is going to deny unanimous consent on the motion to bring a bill to the floor, thus forcing a cloture vote, they must do so publicly.]
    4. The amount of delay time after cloture is invoked on a bill should be reduced.[This delay time is currently 30 hours, and is one of the main reasons why legislation moves so slowly in the Senate.]
    5. There should be no post-cloture debate on nominations.[This is currently 30 hours of debate on a nomination that has already been secured.]
    6. Instead of requiring that those seeking to break a filibuster muster a specified number of votes, the burden should be shifted to require those filibustering to produce a specified number of votes to continue the filibuster. [41 votes to maintain a filibuster, rather than 60 to end one.]
    7. Those waging a filibuster should be required to continuously hold the floor and debate.[Senators have to show up to filibuster, and can’t do it while raising money, talking to lobbyists, or drinking martinis.]
    8. Once all Senators have had a reasonable opportunity to express their views, every measure or nomination should be brought to a yes or no vote in a timely manner. [Basically, eliminate the 60-vote requirement, which isn’t going to happen in this round of reforms.]

    Combined, #6 and #7 would make the filibuster a "real" filibuster. Those wishing to block a bill have to stay on the Senate floor and give a talk-a-thon, something which is not currently required under Senate rules. This is a proposed reform that I believe unites the Daily Kos community, whereas the call to lower the cloture threshold does not.

    Also, combined, #4 and #5 would reduce the amount of dead time in the Senate. Implementing these changes would significantly cut back on delay for the sake of delay. As such, this would have a big impact on judicial and executive branch nominations, both in 2011-2012 and beyond. These thousands of nominations could now be confirmed or defeated at a far, far greater speed than before. No more nomination limbo clogging up the Senate calendar. No more gaping absences in our executive and judicial branches of government.

    The 60-vote threshold isn't going anywhere. Many people seem to conflate the idea of Senate rules reform as having entirely to do with the 60-vote requirement, but it isn't. Basically, we are pushing to make filibusters "real filibusters," and to reduce dead time in the Senate.

  •  The GOP is using pure party-line filibusters (0+ / 0-)

    to cause the President of the United States to appear to be a failure, to the detriment of the nation.  That is abuse of the filibuster rule, just as the four-corners offense in basketball was an abuse of the no-shot-clock rule.  I'd like to see a filibuster reform where, if exactly 41 members vote against cloture, at least three of the 41 must be from each major party (i.e. 38 R and 3 D would be OK).  Pure party-line filibusters would require 44 members from that party.

    Barack Obama in the Oval Office: There's a black man who knows his place.

    by Greasy Grant on Thu Dec 16, 2010 at 01:10:11 PM PST

  •  Tipped and Rec'd (0+ / 0-)

    Filibuster Reform is long overdue.

    Demand Filibuster Reform call your Senators at (202) 224-3121 -AND KEEP CALLING

    by Lefty Coaster on Thu Dec 16, 2010 at 01:40:36 PM PST

  •  The killing of democracy (0+ / 0-)

    Republican Senators are hell-bent on killing democracy.  Never before ahs there been such a need to reform the Senate.  For some interesting rule change suggestions, go to the following link:

    http://www.centerleftprogressive.blo...

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