Busting the filibuster

Everybody [at least everybody who wants an effective democracy] talks about ending “filibuster abuse,” but who’s doing something about it? At least one US Senator is. On Thursday, Dec. 2, Sen. Jeff Merkley [D-OR] announced a set of proposals to reform the Senate’s rules on filibustering.

Calling abuse of the filibuster “the heart of the Senate’s dysfunction,” Merkley says that “the Senate’s original commitment to full and open debate has been transformed into an attack designed to paralyze and obstruct the Senate’s ability to function as a legislative body.” Before outlining his specific proposals for reform, Merkley offers a succinct and persuasive summary of how the filibuster has been abused in recent years:

The filibuster can be thought of as the power of a single senator to object to the regular order of Senate deliberations, thereby invoking a special order that requires a supermajority and a week delay for a vote. Historically, this power did not paralyze the Senate because it was invoked upon rare occasions. In recent times, however, minority senators have started objecting to the regular order on nearly a daily basis, paralyzing the Senate.

It is important to observe that a senator who objects to the regular order pays virtually no price in time or energy. At most, one senator must stay near the floor to object to any unanimous consent proposal designed to force a vote. As a “courtesy,” this task can be handled by a member of the objecting senator’s leadership. Contrary to the deeply rooted popular impression, a filibustering senator does not need to speak continuously on the floor to sustain his or her objection.

Indeed, following the initial objection, the responsibility shifts to the majority to assemble a super-majority. And if the majority wants to maintain continuous debate to dramatize an objecting senator’s obstruction, it is the majority that bears the burden of maintaining a quorum on the floor. Without such a quorum, a single senator can shut down debate by asking for a quorum call.

If you had to read that block quote several times to understand it, join the club. Senate rules are complicated and convoluted—a maze of ins and outs that only a serious student of parliamentary procedure could love. [If you’ve ever attended a college-level Model United Nations session, you’ve witnessed how, even when it’s only a simulation, some “players” use procedures as weapons to defeat opponents’ proposals.]

Merkley also outlines the perverse effects that filibuster abuse has had in 2010 on the Senate’s ability to function:

  • Failure to adopt a budget and pass appropriation bills
  • Reduction of floor time for “digestible” bills, resulting in bundling smaller issues into huge legislative packages that are difficult to understand and debate
  • Failure to consider legislation passed by the US House of Representatives
  • Damaging the executive branch by holding up, in 2010, more than 125 nominees
  • Bottling up, in 2010, 48 judicial nominations, leaving crucial federal judgeships unfulfilled and crippling the federal judicial system
  • Paralyzing the US Senate and adding to the frustration between political parties

“These are not the marks of ‘the world’s greatest deliberative body,’” says Merkley.

Merkley’s eight-point proposal does not suggest eliminating the filibuster. Rather, it attempts to address filibuster abuses while also protecting the legitimate right of the minority to express its viewpoint. His ideas are not the only ones out there—just the most recent. Earlier this year, Sen. Charles Schumer, chairman of the Senate Rules and Administration Committee, held hearings on the same subject. Over the summer, Senators Frank Lautenberg [D-NJ] and Michael Bennett [D-CO] offered their own versions.

Here’s a somewhat edited version of Merkley’s proposals. Warning: Once again, a lot of this stuff is “inside baseball,” so don’t be surprised if it seems obscure. For the sake of brevity, I’ve edited out some of the details about how it would work, what specific language Senators would use in motions, etc. You can read all the gory details here.

Personally, I find #5,  #6 and #8 the most intriguing, common-sense based and innovative, from a layperson’s point of view.

And remember, these proposals are offered by an insider for other insiders. For one Congressional observer’s analysis [spoiler alert: he likes most of what he sees and explains why], check out the post by David Waldman, of Daily Kos’ Congress Matters.

#1) Narrow the scope [of the use of the filibuster]: Eliminate the use of the filibuster on motions to proceed. Blocking deliberation has little place in a legislative body. If a Senator believes a bill is so deeply flawed that debate should be suspended, the senator still has the right to move to table the bill.

#2) Further narrow the scope: …it is worth debating banning filibusters on amendments since members would still have the right to filibuster the final vote. […Examine] the value of limiting filibusters on appointing conferees.

#3) Create an expedited path for nominations: ….The regular order for each nominee might still be subject to a filibuster, but only under the revised filibuster requirements discussed below.

#4) Require a filibuster petition: Require a substantial number of senators, perhaps 10, to file a filibuster petition to block a simple majority vote on an amendment or a bill. By creating a public record, senators have to take responsibility for obstructing the process. This also prevents a single senator from blocking the regular order.

Hollywood’s faux filibuster

#5) Require filibustering senators to hold the floor: The public believes that filibustering senators have to hold the floor. Indeed, the public perceives the filibuster as an act of principled public courage and sacrifice. Let’s make it so. Require a specific number of Senators — I suggest five for the first 24 hours, 10 for the second 24 hours, and 20 thereafter — to be on the floor to sustain the filibuster. This accomplishes two important objectives. It makes a filibuster visible to all Americans. And it places the responsibility for maintaining the filibuster squarely upon those objecting to the regular order

#6) Require continuous debate: . ..Under this requirement, if a speaker concludes (arguing either side) and there is no senator who wishes to speak, the regular order is immediately restored, debate is concluded, and a simple majority vote is held according to further details established in the rules. This further expands the visibility of the filibuster. Americans who tune in to observe the filibuster would not see a quorum call, but would see a debate in process.

#7) Establish the right of the minority to offer amendments: The Senate wastes enormous amounts of time trying to work out a structure for the presentation and debate of amendments on any given bill. The Senate needs a regular order for the presentation of amendments so that, in the absence of an agreement between the Majority and Minority leaders, debate will proceed.

#8) Decrease the segregation of members: Members of the Senate are segregated by party. They sit on different sides of the aisle in the Senate chamber. They sit on opposite sides of the room in committees. They caucus separately. Even the pages on the floor are designated as “Democratic” pages or “Republican” pages. These practices may not have been significant in the past when senators lived in Washington and socialized on evenings and weekends. But now senators work evenings and then fly home, greatly diminishing the time for informal interactions with each other.

Will anything change in the 112th Congress, which convenes in January 2011? That, too, is debatable. And here’s the kicker: it’s not even clear whether rules changes are, themselves, subject to a filibuster.

Image credit: Mario Piperni.com