Filibuster Reform

THE FILIBUSTER, long an emblem of the Senate and symbol of American political culture, is not dead. Though some in the majority wish it were. Last Thursday night, the Democratic leadership put forth with bipartisan support (i.e., with drastically reduced impact) their best efforts to vitiate the obstructive tactic, which over the course of two centuries has frustrated the prospects of countless bills.  Sadly, objections to the filibuster stemming from sheer annoyance at its efficacy rather miss the point. (Jefferson said, “we pour legislation into the senatorial saucer to cool it.”) And the supreme irony of last Thursday is that, despite all the noise and the final passage of new rules, the filibuster remains virtually unscathed.

So what was actually accomplished?  The Atlantic puts it in plain English. Formally, the new rules:

  1. Shorten debate following a cloture vote on the motion to proceed from 30 hours to four.
  2. Leave the ability to filibuster that cloture vote essentially intact.
  3. Allow the minority to offer two amendments on every bill.
  4. Shorten confirmation time for judicial nominees once cloture is invoked.

Informally (meaning no changes to the Senate rules):

  1. Senators will have to actually be on the floor to threaten a filibuster.
  2. Time allocated for debate will have to actually be spent on debate.

The question bears repeating: what was actually accomplished? Very little, says Martin Gold, Senate expert par excellence and Senior Counsel at Covington & Burling LLP:

The changes are not as extensive as some internal Senate and private sector reform advocates wanted. And they are more intrusive on minority rights than dissenters could tolerate. The new procedures respond to core complaints on both sides of the aisle. Democrats were irritated about the frequent use of filibusters on motions to proceed. Republicans protested against the preclusion of amendments.

Peter Weber of The Week puts it simply: These changes do not “end the current de facto 60-vote requirement for any bill to pass. That means it doesn’t, in fact, change the filibuster.”

And according to Jon Bernstein of the Washington Post, even if the new rules were more extensive, and did change the filibuster, Senators would still wield enormous power to slow a bill’s passage:

[T]here’s also another kind of obstruction, too. Even when there are 60 votes — sometimes, even when there are 70 or 80 or even more — individual senators and small groups of senators have had many tools to stall and delay. And because Senate floor time is scarce, those delays have raised the cost of bringing even overwhelmingly popular items to the floor.

So the Senate remains little changed from what it was a week ago, which counts as a victory for those who think it works rather well, thank you.  But one is guilty of political myopia if he believes these institutional battles are over, as Ezra Klein’s timeline suggests:

History of filibuster reform

1917: A 23-day filibuster against a proposal to arm merchant ships pushes President Woodrow Wilson over the edge. He calls a special session of the Senate and persuades the members to adopt a cloture rule that allows filibusters to be ended with the agreement of two-thirds of the Senate. Previously, there was no way to close debate. Now there is.

1949: The Senate decides that the cloture rule also applies to procedural motions, such as a motion to proceed. The point, again, was to ensure that there’s a way to end debate.

1959: The two-thirds threshold for invoking cloture is lowered from two-thirds of senators “duly chosen and sworn” to two-thirds of senators “present and voting.”

1974: The Congressional Budget Act fathered the budget reconciliation process, a vehicle through which a bill dealing exclusively with budgetary matters can be protected from a filibuster. Welfare reform, the George W. Bush tax cuts and the health-care law all were passed through this process.

1975: The post-Watergate Senate, disgusted by the way the filibuster was used to preserve segregation in the ’40s and ’50s and ’60s, again changes the threshold for cloture, taking it from two-thirds of senators present and voting to three-fifths of senators duly chosen and sworn.

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