And after all, in a sane world, there should be something that can get done by agreement, since even many of those dragging their feet on filibuster reform agree that too much time is wasted post-cloture, filibustering the motion to proceed is a joke, and there really only ought to be one motion necessary to get to a conference with the House on bills you've already passed.
And though we're hearing that the push for the "talking filibuster" may be losing steam, there's another alternative on the table that, although it's not something Republicans are likely to want to agree to, is actually a pretty interesting option: flipping the burden of maintaining a filibuster onto the minority insisting on carrying it out.
But as the endgame approaches, even this basic reform may be in trouble. I'll explain what it would do, and whether we're likely to see it happen, below the fold.
Under current rules, a cloture motion needs to garner the votes of 3/5 of the total number of Senators. That's the dreaded 60 vote threshold. The problem with requiring 60 votes to end a filibuster, though, is that the Senators insisting on continuing debate (a filibuster, technically, is called "extended debate") don't even have to show up to vote no on cloture. A 59-0 vote in favor of a cloture motion is a loser under the current rules. Worse, current rules make it the responsibility of those who want to end debate to keep the lights on if they want the minority to talk itself out. Any time those conducting a filibuster have no one ready to speak, they can simply say, "I suggest the absence of a quorum," and the clerk has to start reading that long list of names.
Why does that matter? Well, usually the clerk doesn't get all the way through the list before stopping, because when the next speaker shows up, she can ask unanimous consent to end the quorum call, which is usually granted, and pick up where here colleague left off. Why would she get unanimous consent to end the quorum call? Because under the current rules, if you can't muster a quorum (defined as a majority of the Senate, i.e., 51 Senators) the Senate adjourns, and then just picks up where they left off when they next reconvene. And that's as good as continuing the filibuster, to the people conducting it. Even better, really, since they can take some time off until the Senate is called back into session. In other words, those conducting a filibuster are indifferent as to whether or not a quorum is produced, whereas those who are hoping to force the minority to talk itself out need to keep the Senate in session. And that means the majority has to keep 51 Senators available to make sure the failure to produce a quorum doesn't end up doing the delaying work for the Senators conducting the filibuster.
How did that happen?
Well, long story. But let's cut to the chase: one of the latest proposals made would flip that burden. Instead of requiring 60 votes to end a filibuster, it would require 41 votes against cloture in order to start one and/or keep it going. That way, it'd be the minority that was responsible for keeping its troops close at hand to respond to any motions suggesting that debate be brought to a close and a vote taken on passage of the measure.
Sound good? Well, don't get too attached to it.
Reid appears to have made some concessions. He had proposed to require senators mounting a filibuster to come up with the 41 votes to do so. Current rules require those trying to defeat a filibuster to find 60 votes. Reid appears to have dropped that proposal in his talks with McConnell, sources say.Conceding on both the talking filibuster and requiring 41 votes to keep one going seems to leave a relatively costless filibuster in place for the minority. It might preserve some minor clean-up details that would cut back on the number of opportunities to mount a filibuster during the legislative process, but there doesn't appear to be anything left that would dissuade a minority from launching them during the opportunities that remain. And if you find yourself stymied by a filibuster, I don't think you're going to care very much at which point in the process it was launched.
Are there other alternatives, even to flipping the burden? Sure, although to date no one is talking much about them. But you could, for instance, adopt part of S. Res. 4, the reform proposal put forth by Senators Merkley (D-OR), Udall (D-NM) and Harkin (D-IA) which defines a period of "extended debate" as that period following a vote on a cloture motion which gets majority support, but not 60. Merkley's proposal eliminated the use of dilatory quorum calls during extended debate.
But what if you didn't get rid of quorum calls, but flipped the burden on those instead? What if during periods of extended debate, 41 Senators constituted a quorum instead of 51, with this additional twist: if the Senate adjourns for lack of a quorum during periods of extended debate, the debate is over and when the Senate reconvenes, the pending business would be a vote on whatever was being debated when they were forced to stop? After all, the only reason a rule like this would force the Senate to stop debating is because they were unable to produce enough bodies interested in listening to the debate?
We all know that it won't be hard to get Senators to talk at length. But what about getting them to listen? If a filibuster is really just extended debate, but nobody listens to the debate, it's an obvious sham. Why not make those voting for extended debate put their money where their mouths are, such that any time the absence of a quorum is suggested, if you can't find 41 Senators willing to show up during this "debate," everyone will be able to see on C-SPAN2 that the jig is up, no one really cares about extending the debate, and they ought to close up shop for the day and be ready to vote when they get back.
It may even have the additional benefit of forcing a "talking filibuster" after all, since nobody in the minority will have any incentive to suggest the absence of a quorum to take breaks between speakers. And if you want to see the debate ended, your job is easy, because you no longer have to show up for quorum calls. Only the people who say they want debate to continue would have to be there. And that makes sense.
You can also call Reid's office at 202-224-3542, and encourage him to give up on McConnell and use the constitutional option to flip the burden of the filibuster.