Posted by: JanF | December 7, 2010

Filibusted

Today’s post is what I hope is the last sputtering gasp of one of the most destructive rules in the United States Congress: the Senate filibuster.

Calls to change the Senate rules as they relate to filibusters are probably as old as the filibuster itself. And is it any surprise that the word filibuster derives from a word that means “pirate” or “freebooter”, or, to update it a bit: “hijacker”? Make no mistake … the intent of the current filibusterers has nothing to do with debate and everything to do with hijacking the people’s business.

Josh Marshall nailed the current situation in his post from a few days ago where
he explains how 1 Senator holds the majority hostage:

Here’s the thing that people tend not to realize about the modern filibuster: it places all the onus on the majority and almost literally none on the minority, thus creating a massive incentive for endless filibusters. Let me explain.

How many Senators do you need to get on the floor to break a filibuster? 60.

How many do you need on the floor to sustain one? 1.

Here’s another part of the equation. Everyone knows you need 60 votes to break a filibuster. But it’s not 3/5 of the votes, it’s an absolute 60. That’s why you’ll note that when a filibuster is a broken it’s usually by a vote of 60 to 30-something. In other words, the folks in the minority, the folks filibustering, don’t even need to show up. I’d like to say they can just dial it in. But actually they don’t even need to do that.

Most sentient humans (this excludes soon-to-be-retired-thank-goodness Senator Christopher Dodd) agree that the filibuster is a problem when you have pressing legislative needs that include “passing important bills” and “keeping the government running”.

The recent ratcheting up of the Republican Politics of No has made the Democratic caucus even more anxious to get something done:

At a closed-door meeting on Thursday, members pointed to a letter written by Minority Leader Mitch McConnell (R-KY) to block any bills prior to dealing with tax cuts and budgets.

“Several Senators got up and said the way the McConnell letter came down and the way Republicans have been blockading everything should be used as a case to make rule changes,” a top Senate Democratic aide told the Huffington Post.

The likelihood of changing the rules of the chamber still comes down to whether or not Senate Majority Leader Harry Reid (D-Nev.) sees a reasonable path for getting reform done with just 50 votes. A smaller Democratic majority in the next Congress makes that less likely. On the other hand, the party is losing one of most outspoken filibuster reform critics: Sen. Chris Dodd (D-Conn.).

Here are a few of the proposals being considered.

The Tom Harkin Proposal
A bill proposed by Senator Tom Harkin (D-IA) when Democrats were in a minority in 1995 was both sensible and simple…which probably explains why it was not implemented. It tried to respect the rights of the minority to debate a bill while still allowing for bills to be passed:

On the first cloture vote, 60 votes would be needed to end debate. If one did not get 60 votes, one could file another cloture motion and 2 days later have another vote. That vote would require 57 votes to end debate. If cloture was not obtained, one could file another cloture motion and wait 2 more days. In that vote, one would need 54 votes to end debate. If one did not get that, one could file one more cloture motion, wait 2 more days, and 51 votes would be needed to move to the merits of the bill.

 

The Tom Udall Proposal
Tom Udall (D-NM) has a proposal he calls “Returning Power to the American People”:

At the start of the 112th Congress, I will make a motion on the floor of the Senate to take up and adopt its rules by a simple majority vote.

Obstruction in the Senate is a symptom of an institution that is too easily manipulated by special interests. Well-connected lobbyists can persuade a single senator to halt progress on a bill or nominee with a secret hold. Reforming the Senate isn’t a power grab for one party or another. It gives power back to the American people by bringing senators out of the backrooms to do their jobs.

The Constitutional Option is bipartisan, and has been championed by Republicans as well as Democrats:

Senator Cornyn (R-Texas) in 2003: “…One Senate cannot enact a rule that a subsequent Senate could not amend by majority vote.”
Senator Hatch (R-Utah) in 2005: “…A simple majority can change Senate rules at the beginning of a new Congress.”

 
The Jeff Merkley Proposal
Just recently, Senator Jeff Merkley (D-OR) proposed changing Senate rules for the 112th Congress citing that a rule changing window exists at the beginning of each Congress which allows for the rules to be altered for the next Congress by a simple majority (50 plus 1).

Here is Merkley’s proposal:

…he would “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 would be required even during quorum calls. At any point, a member could call for a count of the senators on the floor who stand in opposition to the regular order, and if the count falls below the required level, the regular order prevails and a majority vote is held.

 

The Jimmy Stewart Proposal

Okay, I made that up … Jimmy Stewart did not propose this. But I have to admit that seeing Jim DeMint looking rumpled and frayed and sweating on the Senate floor as he struggles to stop legislation from being voted on has a certain pleasing element.

Lost Cause?
Jimmy Stewart’s famous filibuster scene is titled “Lost Causes”. I would like to think that this cause is not lost because we really have to fix the Senate if we are to have any hope of a functioning government.

We can’t fix America without the Senate and right now the Senate does not work. We wasted 2 years because we not only had to compromise with Republicans but with LIEberdems and Blue Dogs. 50 plus 1 would have given us the chance to pass some of the over 400 bills that were sent from the House to the Senate to die.

Remember … the other side wants government to fail. They want judges blocked and administrative positions (our regulators) to go unfilled.

We don’t need heroes to fix this. We need one Senate Majority Leader with a spine and 50 plus 1 votes.

(A version of this was originally posted on 12/07/2010 at BPI Campus)

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