Everything You Always Wanted to Know About Filibuster Reform (but Were Afraid to Ask)
Democratic senators want to radically rewrite the rules to make it easier to vote on bills and nominees.
So Senate Democrats just want to do away with the filibuster, huh?
Not quite. But some Senate Democrats, including Majority Leader Harry Reid, say they'd like to change the rules in an attempt to speed up the flow of business in the Senate. Many liberals have taken to decrying a tyranny of the minority, and after two years of resisting serious changes, Reid is now talking them up.
Why are they so upset about this, anyway?
There are many long versions, and James Fallows has indefatigably catalogued the increasing dysfunction of Congress' upper house. For the shortest explanation, take a look at this chart, various versions of which have circulated:
That shows how frequently the Senate has been gummed up in recent years. Reid calculates that he's faced nearly 400 filibusters in his six years as majority leader. The problem, as critics see it, is that ever more matters are put to filibuster. It's not just bills -- it's even the question of whether to open debate on bills. In effect, a supermajority of 60 votes is now required to pass any bill that's all controversial; that's led to mindbending headlines like "Senate defeats Democrats' measure to kill off 'Big Oil' tax breaks, 51-47." Reformers say it's patently absurd; if the Framers had intended for all legislation to require a supermajority, they would have indicated it.
And the result isn't just gridlock on bills. It also means that key posts subject to Senate confirmation go unfilled. Many Obama judicial nominees have been blocked from up-or-down votes -- not because there are specific objections to them, but because Senate Republicans refuse to allow votes or even debate on the nominations. Democrats did the same to nominees during the Bush Administration. Naturally enough, both parties are upset because they want their own nominees confirmed to lifetime appointments on the federal bench, but the hold-ups are leading to overworked judges, dependence on judges in their ninth and tenth decades, and a failure to provide speedy trials. Outside of the judicial system, the board of governors of the Federal Reserve has been short members for much of the time it has grappled with the worst financial crisis since the Great Depression.
How do the reformers want to fix it if they're not going to get rid of the filibuster altogether?
There are a range of proposals. The most extreme, put forward by Iowa Senator Tom Harkin, would effectively end the filibuster, allowing a simple majority to pass legislation -- although no one, including Harkin, seems to think that has much chance of happening. Senators Tom Udall and Jeff Merkley have been ringleaders for senators who prefer more modest reforms. Here are a few of the major possibilities:
- Banning Filibusters on the Motion to Proceed: Before a bill can be opened to debate and then voted on, it has to be brought to debate through a motion to proceed. Currently, that vote, along with the eventual ballot, is subject to filibuster. Reformers want to end that. Republicans blame their reliance on the tactic on Reid's refusal to allow them to offer amendments to bills. As a result, a compromise deal might make it easier for the minority to offer amendments while making it harder for them to filibuster.
- Bringing Back the Talking Filibuster: Filibuster wonks often lament that the common man's image of the filibuster is the one from Mr. Smith Goes to Washington, of a man talking at length to defend deeply held principles. That actually never happens anymore; in practice, the minority announces that it intends to filibuster and that's the end of the matter. In at least one case, a senator allegedly "phoned in" a filibuster while out Washington. (Occasionally, a senator reenacts the old method; Vermont independent Bernie Sanders won plaudits, but lost the battle, with a December 2010 filibuster.) Reformers want to force anyone who wants to filibuster to actually speak for hours in the grand phonebook-reading tradition of Fighting Bob LaFollette, Strom Thurmond, and Robert Byrd.
- Banning Filibusters on House-Senate Conferences: Another case of a filibuster where you don't expect it: Senators can block the start of House-Senate conferences to reconcile versions of bills. That could be done away with.
- Shift the Burden on Cloture: Currently, the Senate requires 60 votes for cloture on a bill. Minnesota's Al Franken wants to see the burden reversed, so that any minority that wishes to block cloture would have to produce 41 votes.
Who's behind the reform push?
The loudest proponents have been the Merkley-Udall group. Senate veterans, who have spent more time in the minority, tend to be more skeptical of any changes to the rules. But Majority Leader Harry Reid, who had long been reluctant to take action, is now on board, although he's been notably vague about the specifics of what he'd like to see. In a major boost for the reformers, President Obama, himself a former senator, said through a spokesman last week that he backed changes.
Aren't Democrats worried about being in the minority soon?
That's certainly how some Democrats feel, and what Republicans have cited as a reason for caution. Senate graybeards have stepped forward to complain about the whippersnappers who don't know what it's like to be in the opposition (neither Merkley nor Udall has ever been in the minority); Minority Leader Mitch McConnell, who railed against "this cohort of short-sighted Senate sophomores." The reformers say that the need for a functioning legislature outweighs their own benefit, and argue that if something is worth filibustering, it's worth a talking filibuster. They may have an opportunity to find out soon. Even though Dems improbably managed to not only hold but add to their advantage this year, they have to defend 20 seats to the GOP's 13 in 2014, and many of those will be tough to keep. The New Republic's Nate Cohn lays out the liberal's case against reform, while several Democrats told The New York Times they were leery of changes. A Democratic staffer familiar with the matter told me the resistance is overstated, saying that some of the senators publicly worrying have privately indicated they're open to voting for reforms.
This seems pretty hypocritical, though. Didn't Democrats do the same when they were in the minority?
Certainly. As Alex Seitz-Wald explains, there's plenty of hypocrisy to go around. You may recall that back in 2005, Republicans, exasperated with Democratic filibusters of George W. Bush nominees, threatened the "nuclear option" to allow a simple majority to overcome a filibuster. Democrats, including Reid and Vice President Biden, strongly objected. (A compromise was eventually worked out that didn't involve the nuclear option.) Of course, the Republicans have switched their views just as easily as the Democrats.
How would these changes be enacted?
There's some debate about that. The standard precedent requires not just a supermajority but a two-thirds vote to change the filibuster rules. Reformers tried and failed to get changes through in January 2011, when the current Congress convened. If Reid can't get the 60 votes needed to override filibusters now, he obviously can't get 67 to make it harder to filibuster in the first place. As a result, Udall has been calling for what he calls the "constitutional option," which is the same name that Republicans gave to the "nuclear option" seven years ago. Udall and his backers want to change the rules by a simple majority at the start of the Senate session in January. Even many Democrats who want to see reforms enacted are skittish about that, but what's new is that Reid now seems open to it. The trick from here is whipping enough votes to pass.