Time to Fix the Filibuster

The Senate easily overcame a filibuster yesterday to pass a major package of tax cuts supported by the president and both parties. For a moment, it was possible to imagine that this troubled institution could function effectively. But the tax deal is an exception, and a rare one, to the culture of obstruction that has long plagued the Senate, especially for the last two years. Use of the filibuster -- debating indefinitely as a means of preventing a vote or other action -- has skyrocketed, slowing business to a crawl. Were it not for the Democrats' decisive majorities in both houses, it's hard to see how anything would have been accomplished. That advantage will disappear when Republicans take over the House in January.

A trio of young Democratic senators is hoping to limit this chronic power to obstruct by reforming Senate rules. Tom Udall of New Mexico, Jeff Merkley of Oregon, and Michael Bennet of Colorado each have put forward thoughtful improvements intended to increase transparency, encourage bipartisanship, and focus the Senate's attention on legislating.

There is ample reason for change. The filibuster is something of an historical accident. Until 1917, the Senate tended to operate by informal majoritarian rule. Senators could filibuster, but did so sparingly and with a different strategic objective than they do today: to gauge the intensity of the majority's commitment to a bill, which, if it was strong enough, usually meant the bill could pass. But as the Senate's workload increased, it became necessary to develop a way to end a filibuster. This led, in 1917, to the cloture rule for cutting off debate so the Senate could proceed to other business. Today, the rules require "three-fifths of the Senators duly chosen and sworn'' -- usually 60 of 100 -- to invoke cloture, which means that as few as 41 senators can bring the process to a stop.

For the past two years, the Republican minority leader, Mitch McConnell of Kentucky, has used the filibuster more often, and more effectively, than any of his predecessors. He has compiled a remarkable track record -- Democrats would call it shameful -- of holding together the 41 Republican senators, and thereby thwarting or delaying nearly every Democratic initiative. And that's not all: last year, an extension of unemployment benefits that eventually passed 98-0 was forced to surmount three filibusters over the course of five weeks. Republicans have even blocked votes on judicial nominees offered up by fellow Republicans. All of this serves as a way to paralyze the Senate and frustrate the Democratic majority. For historical context, Lyndon Johnson presided over a single cloture vote in his three terms as Senate majority leader. This Congress has so far required 87.

This is not how the Senate should work. But the rules are difficult to change -- to do so requires 67 votes -- and by custom roll over with each new Congress. (The crowning irony is that any effort to reform the filibuster can itself be filibustered.) Thus has the 60-vote requirement for cloture endured since 1975.

On the first day of the new Congress in January, Udall plans to introduce a deceptively simple bill, stipulating that the Senate consider its rules anew every two years, as does the House, and establish them by a simple majority. This would make it easier to lower the cloture requirement, which in turn would make obstruction by filibuster more difficult. Merkley would ban the filibuster on motions to begin debate and take up amendments, on the sensible grounds that this would foster engagement and new ideas. Bennet would require the minority party actually to show up and launch a filibuster -- currently, the mere threat is sufficient -- and also add a series of escalating requirements to sustain one, so it couldn't be employed simply to delay.

Each of these ideas is a model of thoughtful, nonpartisan reform that would still preserve the power to filibuster. But the prospect of any of them being enacted looks disappointingly slim.

There are two major obstacles, one process-oriented, the other political. Opponents in both parties worry that revising the rules every two years will prove a slippery slope, and that changes will not be limited to the filibuster. The majority would constantly be tempted to eliminate the minority's powers, eventually rendering the Senate a smaller version of the House. The bigger objection is that abusing the filibuster has proved highly effective -- just look at how quickly frustrated voters returned Republicans to power. That may be an ignoble reason. But even frustrated Democrats know they'll someday be the minority party -- maybe soon.

Joshua Green writes a weekly column for the Boston Globe.

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Joshua Green is a former senior editor at The Atlantic.

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