Fixing the Filibuster

Just to clarify things up front, this post isn't about whether the filibuster should be abolished entirely, kept in its present form, or whether some reform should be found that keeps the filibuster in some form, but keeps it from being used as a perpetual supermajority requirement for passing legislation in the Senate.

This one's strictly to present one of those in-between reforms and to make the argument for its utility.

First, a brief wave at the larger debate: many of you here are for abolishing the filibuster altogether.  I can see the logic in that position.  I can also see the value in retaining the filibuster in some form that would enable a determined minority to block a bill, but at sufficient inconvenience to themselves that they wouldn't be inclined to use it very often.

I also deeply doubt that complete abolition of the filibuster is likely to get through the Senate anytime soon (unless the GOP comes out of this election with the Presidency and both houses of Congress in hand, of course). So just as a matter of practicality, I think we need to find a way to preserve the filibuster as a tool that a minority could use to prevent the passage of legislation, while ending its use as a general supermajority requirement.

Here's the properties I'd hope for in a reformed filibuster:

1) Its use would impose sufficient inconvenience on the minority as to prevent its routine use,
2) but not so much inconvenience as to make it impossible for a determined minority to use it to block legislation, and
3) should impose a fairly light burden on the majority in their efforts to maintain a quorum and ultimately invoke cloture successfully.

Before I explain my proposal, we should make sure we understand how things work now, and why the current system doesn't work like that - e.g. why the majority doesn't force the minority to 'actually filibuster,' to talk through the night to block the majority from voting.

The current rules require that, in order to invoke cloture (that is, to bring debate on a bill to an end so that an up-or-down vote can take place), the majority needs the votes of 3/5 of all Senators, present or not.  Barring mid-term deaths and retirements, that means the majority needs 60 votes, period.

All the minority needs to do is maintain one Senator on the floor at all times in order to ensure that debate doesn't simply stop.  (I presume that such an event would mean the majority woudn't need to invoke cloture to bring debate to an end, since debate would have come to an end by itself.  But I'm not sure of this.  Either way, the minority needs at most one Senator on the floor at any given time.)

And that one Senator can periodically demand a quorum call.  In the Senate, a quorum is 50 Senators.  If there is no quorum, then the Senate is adjourned, and neither votes nor debate can take place until it comes back into session.

The upshot is that in order to force the minority to keep talking, the majority needs to keep 50 Senators on the Senate floor, or at least close enough by to respond to a quorum call.  But the minority only need to ensure that they have one Senator present.

The burden of inconvenience, then, falls overwhelmingly - excessively so - on the majority.  And that is why a filibuster is automatic, rather than involving talking: once a cloture vote fails, it just isn't worth the while of 50 Senators to hang around to force one minority Senator to keep talking, since it would be futile and pointless to do so.  So the majority tables the bill and moves on to other business.

So how do we fix this?  Through proxies.  But not just any old proxies.  The key thing is in how the rules allow and circumscribe use of the proxies.

So here's how I'd have them work:

0) The regular Senate rules apply until a cloture vote garners majority support (counting 50 as a majority if the veep is on your side), but fails to get 60 votes.  Then the following set of rules takes over:

1) From that point on, the majority only needs 3/5 of those voting to invoke cloture.

2) Proxies can be used in voting, and for quorum calls.

3) Five to one, baby, five to one: each present Senator voting for cloture can carry the proxies of up to five absent Senators,  but each present Senator voting against cloture can only carry the proxy of at most one absent Senator.  In either case, a Senator and all the proxies s/he carried would have to vote the same way.

This would mean the majority would need only nine Senators present to maintain a quorum, and either nine or ten, depending, to maintain their full voting strength.

The minority, on the other hand, would need 17-20 Senators (depending on the number of votes held by the majority) present at all times, in order to maintain their filibuster.

A couple of examples to flesh this out:

First example (best case): Ted Kennedy's just died, his replacement hasn't been appointed, the Dems have 59 votes and the GOP has only 40.  The initial cloture vote fails 59-40, and (a) 49 of the Dem Senators sign proxies, handing them to the remaining 10, and leave, and (b) 20 of the GOP Senators sign proxies, handing them to the remaining 20, and leave.  Over time, the composition of Senators on each side changes, but (a) if the number of GOP Senators drops below 20, the Dems can win a cloture vote and move on to the up-or-down vote on the bill itself, or (b) if the number of Dem Senators drops below 9, one GOP Senator can demand a quorum call while his GOP colleagues hide in the cloakroom, forcing adjournment.

While the number of Senators each side needs to keep in the room aren't that different, the GOP would have to keep 1/2 of its caucus in there at all times (so each GOP Senator would have to spend 12 hours out of every 24 on the Senate floor until the filibuster ended), while the Dems would only have to keep 1/6 of their Senators on the floor, which means spending only 4 hours of every 24 on the floor. 

This would strain the endurance of the minority to its limit after awhile, but the majority could sustain the burden fairly easily. 

Not only is this the sort of thing the minority would only put in the time to do over something pretty major, but they'd look damned silly doing it just to filibuster the Motion to Proceed on some judicial nomination they didn't give a shit about to begin with.

Second example (worst case): the Dems lose 3 Senate seats, net, this November, but keep the Presidency.  So we've got a 50-50 Senate, with Biden being able to break a tie.  Just to spice it up, let's say the Dems retake the House, and a new American Jobs Act squeaks through the House, and goes to the Senate, where a cloture vote fails 50-50.

This time, 9 Dem Senators preserve both the quorum and the caucus' full voting strength.  Since the Dems can only muster 50 votes, the GOP needs only 34 votes to maintain their denial of cloture.  But that still means 17 Senators out of 50 on the floor.  So due to the reduced Dem majority, the Dems need essentially 1/5 rather than 1/6 of their caucus to remain present (still not too bad), while the GOP needs only 1/3 rather than 1/2 of their caucus, which makes things a bit easier on them. 

It's still going to be easier for the Dems to force the GOP to maintain their filibuster than it will be for the GOP to maintain its filibuster, but not by as much; who wants it how badly is a factor, but the Dems don't have to want the win quite as badly as the GOP does in order to prevail. 

But even in this worst-case scenario, the minority couldn't filibuster every little thing that came along; they'd have to pick and choose, so they could get back to their fundraising calls. :D

Comments

[Prup (aka Jim Benton)]

l-tc: I agree with you that the filibuster should be preserved in a better format, and have my own suggestion which I'll get to -- and have mentioned repeatedly. But before I get to that, I should say that i think you overestimate the quorum calls as the reason for the 'silent filibuster.' They may be important, but the key was the change that was made when the number for cloture was dropped from 2/3 to 3/5.

Previously, the key to a filibuster was that it would bring the Senate to a halt, making any business impossible while it was going on. There could be only one subject on the floor at any given time, and thus nothing else could go on when the Senator or Senators were talking. It was, deliberately, both an endurance test and a test of which side wanted its result more.

But now, the Senate can and does, hold votes on motions stating that 'the first two hours will be spent on [the filibustered bill] and then it will be put aside and the Senate will take up other business.' At this point there is no real need to make the Senators go through the motions of talking, just hold the cloture vote.

That's not gonna be reversed, so I don't see the quorum call bit being that important -- Senators have dealt with this type of quorum call daily, even just as a way of stalling to finish negotiations, back when negotiations were possible.

So I again suggest the Lieberman-Harkin proposal. The first vote should requore 60 votes, but then, after a stated period, there would be a second vote, requiring 57, then a third requiring 54, then any after that requiring 51. (I'd add the proviso that if, at any time, cloture fails to receive 50 votes, it would kill the bill. And I wonder if there would be someway to allow the 'classic filibuster' as well, with the old rules, but I haven't thought about this long enough to know if a scheme would be possible.)

Anyway, I do worry about events stampeding a Congress into rash decisions -- Gulf of Tonkin, anyone -- and think that a measure forcing delay but not requiring a super majority to pass anything, like we have now, is worth keeping. Sometimes giving a Senatior a chance to hear from his constituents or to wait till things settle can save some bad mistakes.

[Sir Charles]

I think I would like to see 55 votes be sufficient for cloture and for all presidential appointees to get an up or down vote. (I know the latter will cause some concern on our side -- after all it has been used to stop people like Bolton from being confirmed, but I am generally of the view that presidents should for the most part get to pick their personnel.)

Not sure what I think on the Supreme Court picks. I am generally anti-filibuster there as well -- but I could imagine circumstances when I might change my mind.

[nancy]

ltc -- Ouch. This is beyond my wonk-grade.

I must and will try again later though.

[nancy]

Heh. Captcha. unnecessefarry

[low-tech cyclist]

Prup - Lieberman-Harkin is basically the mirror image of my proposal, because under that set of rules, the majority could get anything to an up-or-down vote if it wanted it badly enough; the problem is that in getting there, the minority can basically eat up a lot of Senate clock - so what the majority can't do under L-H is fill subcabinet positions and District Court judgeships, and pass legislation that's needed but not particularly earthshaking.

We experienced a similar problem to this in 2010 with the Senate rule that allows either side to force 30 hours of debate on a bill after cloture is passed, but before the up-and-down vote on the bill itself. (Another rule that desperately needs to be deep-sixed, whether or not filibuster reform itself ever happens.) Rules that allow for every little thing to be turned into a major bit of stallball aren't reasonable.

I still don't see how you're saying the quorum requirement doesn't play into the existence of the 'silent filibuster.' It's true that the Senate leadership can now move on to other business while a filibuster is in effect on one or more bills, but they could keep the filibustered bill on the floor. But if they did, they'd still need 50 Senators close enough at hand to respond to a quorum call,, and the minority would only need to keep one Senator on the floor.

And I think in an era where the minority is perfectly happy to see the Senate grind to a halt, having the old rule that would make that happen anytime you had a filibuster would result in the Senate grinding to a halt even more so than it already does.

That old rule helped reduce filibusters in the days when the minority had things they hoped to gain from legislation, and they wanted bills to pass that had sufficient goodies for their states, favored interests, etc. so they couldn't just gum up the works forever. That was your father's GOP (and the Dems, then and now). But it's definitely not the GOP we have now.

[low-tech cyclist]

SC - I'm not crazy about deciding by category what can and can't be filibustered. I think filibusters of judicial nominations are warranted when the President nominates candidates who clearly don't belong on the Federal bench - as was true of some of the Bush nominees that the Dems filibustered. And I think Executive Branch positions that include representing the U.S. to the world (ambassadorships, State Department) as part of the fundamental job description deserve Senate advice and consent. I'm not sure I could draw a set of lines that I'd be happy with.

That's why I think the goal should be to preserve the filibuster, but in a fashion that makes it fundamentally difficult to use more than sparingly. If it's constructed that way, then that construction itself will limit filibuster abuse to a handful of cases. You want to filibuster a Supreme Court nominee? Knock yourself out, if you're ready to put in the time.

But you'll just have to do it again with the next nominee, and the one after that - and ultimately, it'll just be more time than you're willing to part with.