Associated Press
In early 2011, there was a concerted Senate Democratic effort to reform institutional rules and curtail Republican filibuster abuses. Six months ago, Senate Majority Leader Harry Reid (D-Nev.), a traditionalist who's resisted changes to way the chamber operates, expressed regret for leaving filibuster rules intact.
With that in mind, in 2013, change appears increasingly inevitable.
Senate Majority Leader Harry Reid (D-Nev.) pledged on Wednesday to change the rules of the Senate so that the minority party has fewer tools to obstruct legislative business.
In his first post-election press conference, the Nevada Democrat said he wouldn't go so far as to eliminate the filibuster, which requires 60 votes for the chamber to enter and exit the amendment and debate process. But in remarks meant to preview a more combative approach during the next session, he warned Republicans that obstructionism as a tactic won't be tolerated -- or as technically feasible.
Reid added, "I think the rules have been abused, and we are going to work to change them. We will not do away with the filibuster, but we will make the Senate a more meaningful place. We are going to make it so we can get things done."
For those who believe the Senate is broken and dysfunctional, and that institutional reforms are absolutely critical, this is certainly encouraging, though it's unclear exactly what kind of reforms Reid has in mind. We also don't yet know whether other Senate Democrats are eager to pursue reforms, though early indications are quite positive, and the fact that the caucus is going to be more progressive in 2013 than 2012 is also a good sign.
That said, there are two broader angles that are worth considering as the process begins to unfold.
The first is that the need for reforming Senate filibuster rules shouldn't even be controversial. Looking at the status quo, the Senate wasn't designed to work this way; it didn't use to work this way; and it's quite obvious that it can't work this way.
Here's a historical tidbit to keep in mind: from 1917 to 1972, a grand total of 82 cloture motions were filed. In this Congress, which began just last year, there have been 109. In other words, there have been far more cloture motions filed in the last two years than the Senate saw in the half-century between World War I and Watergate -- and this Congress isn't even done yet.
The most cloture motions filed in American history were filed by Republicans in the 110th Congress (2007 to 2008). The second most were filed by Republicans in the 111th Congress (2009 to 2010). And the third most filed by Republicans in the 112th Congress (2011 to 2012).
The question isn't whether reforms are needed; the question is why the reforms haven't been implemented already. To reiterate a point we discussed earlier in the year, a system in which supermajorities are mandatory for literally every vote of any consequence not only makes it impossible for the legislative branch to function effectively, it creates what is, in effect, a governmental crisis in which the abandonment of norms prevents policymakers from responding to national needs.
That said, I know what some of you are thinking. "But, Steve," you're saying, "would it really make a difference? If the Republicans are still in the majority in the House, as they're likely to be for the next decade thanks to a brutal redistricting process, there's no real point to having a functioning Senate capable of passing bills, only to see them die on the other side of Capitol Hill."
And if that is what you're thinking, you have a point. Even if the Senate returns to something resembling majority rule, and terrific legislation suddenly starts clearing the chamber, the lower chamber is still dominated by the most far-right caucus in modern American history.
So why pursue Senate reform at all? For one thing, because changes would presumably be permanent and the United States needs a functioning Senate, not just in the next Congress, but for the indefinite future.
For another, there are some things the Senate does that the House has nothing to do with. Consider this reminder from Jonathan Bernstein, for example.
For all the talk about the fiscal cliff and the economy, what's really going to make a difference as to whether Barack Obama's second term is a success are his judicial nominations. If Obama's accomplishments are really going to last -- and if liberal reforms are to succeed over time -- doing everything possible to reverse decades of conservative efforts to reshape the judiciary needs to be a top priority.
Democrats need a judicial nominations strategy, and they need it now.
Judicial nominations below the Supreme Court were one of Barack Obama's biggest first-term failures. Now, with a second term and 54 Democratic Senators (plus Angus King), the Democrats have a chance to correct it.
Reforming the way the Senate operates would go a long way towards making this happen.
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Of course, what EVENTUALLY comes of this is - when Republicans have a majority, first chance they get, they do away with the filibuster entirely. At which point, the media will insist both side are to blame, if the lame duck Congress of 2012 hadn't changed the rules, this Republican Congress would never have even dreamed of making such drastic changes to the legislative process. Left with no choice, really.
"when Republicans have a majority, first chance they get, they do away with the filibuster entirely."
Good. The filibuster is profoundly anti-democratic and profoundly anti-progressive. If the Democrats can't bring themselves to get rid of it, I'll be cheering on the Republicans to do so.
Actually there needs to be some way for the "minority" to be heard - that is what the filibuster is for; the problem however is that the current "minority" have been over-indulged 5 yr. olds throwing tantrums because they didn't get it "their way"! Unfortunately when democrats are the "minority" party - they do not behave this childish, they are more than willing to compromise - and therein lies the problem!
I have to tip my hat to the GOTP, they are disciplined, on message (even if it's a lie), and they stick together! Hopefully the backbone of the newest Senators will stiffen the spine of all the democrats and WE can actually get them to work for US!!
I suspect the leadership of both parties are aware that the filibuster can be a good thing. it is a reason to force deliberation and compromise when there is a legitimate concern from the minority party on significant legislation. That it has been abused by people more interested in power than in governance doesn't mean it is a bad idea.
But it needs to be reformed. Go back to the days of forcing the minority party to pull cots into the chamber and basically host a sit-in. It can not remain an administrative signoff. There must be personal cost to doing it.
If we make filibustering being about maintaining 41 voices speaking against a motion, non-stop, and require it halt all other business of the senate, then it will stop being abused. The political cost for using it indiscriminately will be simply too high.
Daw: My thoughts exactly. The fillibuster has its place. But if a Senator (or Senators) feel strongly enough about legislation to hold it up - here, have an NYC phone book!
This is utter BS and why you should call your Senator and tell them to vote for a Majority leader who will champion aggressive Senate rules reform.
Reid is the problem. He must be ejected.
To even suggest that there should be no fillerbuster, is moronic at best. The reason we have one, is so one party can't just pass any law they want to because they have a majority. Thinking that Reid is the problem, because he doesn't want to do completely away with it, is completely short sighted. Reid isn't the problem, and the answer isn't a completely progressive world view either.
Calvin, the premise of your proposition is that if we make the deal that in exchange for allowing the GOP to continue to exercise their minority voice, when we are in the majority, that for some reason they will feel obligated to return the courtesy when they are in power.
That premise is the one that is moronic given the attitudes well in evidence in the Senate. Mitch McConnell is actually a moderate on this compared to his rivals for leadership.
Certainly Santorum also agrees with you. On Laura Ingraham's show yesterday, he outlined his point of view that the federal government needs to do far far less, and so the Senate rules must be used not in their traditional way to preserve the power of small states and minority views to influence legislation.
His view is that they should be used to block the idea of federal legislation to address national problems.
Really. That is what we are up against. If the GOP had the presidency and House and the only thing that stood in the way of repealing medicare and social security was that they had only 55 Senate votes, how long do you think the GOP would let the fillibuster rules last?
When the GOP is prepared to return to the former context of comity and the responsibilities of governance to compromise with opponents rather than obstruct- at that time I would be thrilled to restore the traditional Senate rules.
If Reid wants to secure his place in the Senate history, then he should advocate the complete abolition of the filibuster and indefinite holds. It will be controversial, but better for the country in the long run since the Senate can do proceed to do its job. The House has no similiar procedural device so the Senate should rid itself of these procedural obstacles. It is irrelevant that the House will not take up the legislation because of the conservative majority. In fact, it puts the House on the hot seat when the Senate sends bills to the House and nothing gets done. Doing nothing gives the opposition a campaign issue. Likewise, the refusal to compromise with the Senate would carry the same liabilities. The Senate can vote on all House bills and throw the issue back to the House.
We probably agree it is a difficult sell for Reid who understands that what every Senator knows- that without this leverage on their fellow Senators, no interested parties will ever come to a Senator or group of Senators in the minority to raise an objection to a planned law. Without such rules, such individual Senators would have no power and would be ignored unless in the leadership of the majority. This is why I advocate the same abolition you do, but refer to it as temporary, until such time that the opposition agrees the rules will be used rarely, and never for blanket opposition of all initiatives from the other side of the aisle that are not absolutely conformant to their ideology.
Minority senators have the right to put their comments in the record as well as some time on the floor to note their objections. Usually, the objections and debate center around issues that are raised in committee. If the majority pass a bad law or appoint a person that is unfit for office, then the majority gets the responsibility/blame for such action. Without the cover of a filibuster, some majority senators may not be so eager to push a bill or appointment. Posturing loses its ability to hide and the member's vote is on record.
Here's where to contact Harry Reid:
http://www.reid.senate.gov/contact/index.cfm
Let him know what you think. Do NOT be nice.
Thanks for that. Here's what I just wrote to him: Dear Harry,
I don't know if the historians will miss this, but I believe one of the most consequential political blunders in the modern era was when you got suckered by the Republicans, at the beginning of the last congress, into believing that they wouldn't abuse the filibuster. By trusting them—after they'd shown themselves to be dastardly—you left in the filibuster rule for them to abuse, and they did it in grand fashion. This allowed them to sabotage Obama's agenda when he had the House controlled by his party. That sabotage, and lack of progress on the president's agenda, certainly had an impact on voter disillusionment when the 2010 midterms hit, and may well have been the reason why a red tide swept both the congress and statehouses.
You totally blew it once. And now you say you're not going to get rid of the filibuster now? Are you serious? You give the Republicans half a chance and they'll screw the country over just like they've done the past six years. And don't give me this baloney that we need the filibuster for when Democrats are in the minority. How long do you think the Republicans would take to kill the filibuster outright if they were in power?
Stop pretending that Republicans are reasonable. Stop denying that their default policy is scorched earth politics. By treating them in any other way you have been complicit in sabotaging our country. Enough already!
If you only take into account the "Advise and consent" part of the senates function you are looking at serious gains for the administration. Fights over cabinet posts, agency positions and even routine service appointments have hamstrung much of the effort that have been made over the last four years to implement financial regulation and get lots of federal programs moving.
The tactical consideration is how do Democrats do it without giving the Republicans the opportunity to go around crying "Help, Help I'm being oppressed". If they can't it will provide plenty of script material for the rights political theatre production of "Good Vs. Evil" that they are already working on. Not to mention give them an excuse for all kinds of shenanigans in the house (not they will need one).
The trick is going to be not only letting the American people see what is being done but explaining clearly why it needs to be done and framing it in such a way that Republicans can't whine they are being treated unfairly.
It's time, actually way past time, to punch the Republicans in the mouth. Let them cry bloody murder if they want to. Just do what they do: taunt their opponent back as whiny asses who can't take it. Just simply don't back down. Get in their face. The good thing is that we're right, they're wrong, and two years is enough to get that known if Democrats decide to have a spine.
I'm reminded of a great book I recently read called 'It's Even Worse Than It Looks: How the American Constitutional System Collided With the New Politics of Extremism', by Thomas Mann and Norman Ornstein. It goes into detail about lesser-known congressional rules, how they have been abused for the last several years, and how we can make the system better by using reforms that other democracies have embraced. It tackles filibuster reform, as well as cloture, voting, electoral counting, etc. It also poses some rebuttals to what seem like the most obvious solutions. Great read!
The filibuster exists for a reason - to stop a tyranny of the majority. It needs to continue to exist. In its present form, though, it doesn't work. It's too easy to make it work.
Instead of 3/5 of the members of the Senate being needed to break it, 2/5 of the members should be needed to sustain it... at all times. They have to be willing to be in the chamber to vote at a moment's notice until such time as the legislation is dropped. It has to be an issue for which they're willing to bring the chamber to a complete halt. The change in '72, which basically made it so a Senator only needed to announce his or her intention to filibuster, made the filibuster way too easy to abuse.
Excellent point(s)!
The Founders did a pretty good job; let's not be too hasty in changing it.
There has to be real consequences for those who filibuster. Holding the floor for hours at a time is not kind to aging prostrates. . .
Did you mean prostates?
I think he meant prostrates - those Fundamentalist Republican Senators who throw themselves on the floor of the Senate before God to do his bidding.
The filibuster and holds are the creation of the Senate and not the Founding Fathers. There is nothing in the Constitution about filibusters and holds. If the minority party wants a voice then it needs to agree to change debate rules that protect that right rather than a procedural device to indefinitely hold up action on a bill or appointee.
The founders didn't initiate the filibuster, did they? Isn't it what it has been for a very long time, even with changes around the edges: that is, a purely procedural rule (as in Roberts' Rules of Order) that the Senate adopts by majority rule (51/100 not 60/100) at the beginning of each 2-year Senate session? Which is why the Dems can amend/limit/delete the filibuster at the very start of their next session -- right?
You are correct. The Senate can change the rule by majority vote if they so choose. But traditionally this sort of significant change in rules has been done only with a majority of both parties agreeing to the change. This is what Harry Reid did last time, but was snookered by McConnell. Now, Reid should make McConnell and the Republicans pay for their conduct by outright abolition of the filibuster and holds. Republicans will scream but public opinion will not be on their side. It may create a split in the Republican party Senators along Tea Party and establishment members and McConnell gets the blame for allowing this to happen.
The filibuster as a legislative tactic actually long predates the founding of our country. It was in use in the Roman Senate, and in the British Parliament (which may have informed the Founders' understanding of the practice). Interestingly, it seems the Founders' generation did "create" the filibuster, but may have done so literally by "mistake" (and certainly not in the Constitution)! This was a mistake future generations of Senators have actually tried and failed repeatedly to correct.
Even after inadvertently creating the possibility of a filibuster, the Founders' generation didn't actually use it. The first recorded instance of a filibuster in the US Senate appears to have been sometime around 1837-1841.
A few interesting items on the subject:
A Short History of the Filibuster
The History of the Filibuster (2010 testimony before the Senate Committee on Rules & Administration)
The Filibuster FAQ: Fact, Fiction, and Why We Need Reform (by John Nichols at the Nation)
5 Longest Filibusters in U.S. History
Got Enraged and Engaged:
Mooched the Vote 2012!
;-)
Take it easy folks. Reid doesn't have to abolish the filibuster completely in order to fix the Senate. And he's not going to. What he HAS said is, that he will reform the rules. Come January or before, we will get a better idea of what he has in mind.
Going back to the pre-1972 rules would be a start. The "Mr. Smith Goes to Washington" type of filibuster was never a reality, but certainly it should be harder for one senator (or 40) to block movement of a bill or a nomination for any longer than their desire to debate it.
I think that's what we are likely to get.
(If we can get rid of those anonymous "holds" that would be another good thing.)
Reid has proven to be insufficiently progressive on Senate rules reform, so I take his comments with a block of salt. While I feel that the minority should have some abilities to slow the march of tyranny where there is tyranny, I also believe that the inability to provide for a meaningful filibuster that cannot be used to obstruct everything should mean that the filibuster goes away. I would prefer Harry's default position to be remove or reform.
And the secret indefinite holds should neither be secret nor indefinite.
I'm all in on writing our Senators and asking for a Majority leader who will actually change these kinds of things.
I don't trust Reid either. Everyone needs to contact their reps and make sure they understand that they can't let him get weak-kneed about this.
The filibuster is necessary so that the minority has a voice. The problem isn't the filibuster itself...it's how it's been implemented.
In 2010, Sen Jeff Merkley presented his ideas on how to fix the problem. He's got a lot of good ideas on how to make the filibuster better (and to add accountability). See http://is.gd/JdAmA8.
Those are all rather good ideas. Here is another one: Limit the number of filibusters that can be enacted in a given senate session to 1 per person. This will force the Senator to be absolutely certain they want to filibuster a bill before they do it. Then force the Senator(s) to actually hold the floor for the amount of time they want to filibuster.
Too easy to defeat with simple tactics that are obvious to anyone who's played RPGs.
If I am not mistaken, the first act of the new Senate is to adopt the rules of the Senate. It is a simple majority vote. Can't they single out the filibuster rule and vote on that separately? They have ONE chance to do this. This will be a great indication if Sen. Reid means what he says, and if the Democrats will take the tough vote.
http://massachusettsobserver.blogspot.com/2012/11/barack-obamas-second-term.html
Exactly. They can change the rules at the beginning of each Congress, once every two years. And Reid says he is going to do that.
It is nonsensical for people to say he hasn't been aggressive enough over the last two years. He had a chance in Jan 2011, and he blew it. He says now he regrets it--he simply didn't think the GOP would be this bad. He hasn't had a chance since then.
What's nonsensical, though, is that this has been a problem since 2007 when the Democrats first gained the Senate majority. This isn't a new problem.
Let's see, the U.S. Senate's been in existence since 1789 and the problem with the filibuster has developed since 2007.
You were saying?
FINALLY!!
From Wikipedia - Filibuster:
Speaking as long as they want on any topic doesn't sound like that bad an idea.
This is where you get people taking turns reading from the phone book, right? Getting all tired and sweaty, right? Wait....that's not what has been happening...
Another quote from Wikipedia
Having the minority be able to affect legislation doesn't sound like that bad an idea.
So...my questions:
Has the filibuster ever been used to prevent the Senate from taking an action that, after the delay and further consideration, the majority realized that the action would have been a mistake?
What changes can be made to the Senate Rule that would curb the abuse, without eliminating it completely?
Would the people calling for elimination of the filibuster feel the same way, regardless of whether their party is in the majority or minority?
The way the filibuster has been used by the Republicans is ridiculous. But, if Romney had won and the Republicans had gotten the majority in the Senate, I would honestly be happy if the filibuster was still there.
It wouldn't be. The Republicans would have swept the filibuster out on the first day. As should the Dems now.
I'd like to see Reid restrict the number of things that can be filibustered.
Presidential appointments? These shouldn't be subject to holds and filibusters.
Conference Committee reports? These also shouldn't be subject to filibusters; the full Senate had time to debate and pass the bill before it went to conference committee, so there's no need for another shot to gum up the works.
Make it like coach's challenges in NFL games. You get "X" number for the session. "X" being a very limited number, so that those filibusters can only be employed for very important issues.
And end the practice completely when it comes to judicial nominations. The "advise and consent" part is done through hearings on the nominees. The minority party gets to give their advice during that process. As for "consent," they can agree to disagree.
A fixed number wouldn't work--it would just encourage the other 'team' to create more situations where they'd want to use it to overwhelm them.
Making it be something that a substantial number of them feel strongly enough about to stay and defend would achieve the same goal.
For one thing...if they are going to filibuster it needs to be an old fashioned one where they talk till they drop (picture Jimmy Stewart here)...the phone book, Harry Potter...whatever. They talk and when they stop the filibuster is over and votes can happen. None of this declare a filibuster then just go home cr@p!
Whenwill "buyer's remorse" begin to set in?
No Floridian can be proud of the spectacle of 4 hour waits or more to vote.
The ability to make judicial appointments is one benefit of filibuster reform, but there's also the ability to have agency head's confirmed (e.g., Consumer Financial Protection Bureau) and treaties approved (recall that Senate Republicans indicated that they would filibuster a vote on the START Treaty unless President Obama agreed to extend the Bush tax cuts for two more years).
All that have signed the norquist pledge and have abused the filibuster priviledges to an Extreme Level and have held Our Country Hostage , Not for the advancement of America , But , rather for the Benefit of Only a Select Portion of Americans , need to be charged with Treason and Abuse of Power against the U.S.A. and ALL of Our Citizens ~ PERIOD ! Not to mention Everything Else that the gop/tp has thrown a wrench into the works on , such as , Voting Rights , Womens Rights , etc. etc. etc. !!!!
I think Congress wastes too much time. To vote 30 times on the repeal of the Affordable Health Care Act is ridiiculous. Especially knowing that the Senate will never pass it. The President has the power of the veto. These are supposed to be intelligent people. College educated and everything. Why can't they figure it out.
It's a symbolic gesture, Alma. They knew they had no chance of overturning the ACA, but they did it anyway so they could brag to their donors that they're "still fighting against it".
False equivalence. It's not "Congress" doing those things. It's "Republicans in Congress."
You can't fix the problem if you can't properly identify it.
Not just the filibuster... There's a HUGE ballot vote in the 70% across the nation pushing for a crushing Citizens United reversal:
https://movetoamend.org/press-release/move-amend-wins-big-ballot-box-americans-fed-big-money-and-undue-corporate-influence
Oh, here we go. Now that we won, this is just the time for us to get ourselves worked up into a state of preemptive outrage over things we "just know" will happen.
Could I make the modest suggestion that we a) wait to see what Reid is specifically planning and b) give it a chance once he does it rather than just assuming we know what he's going to do and how it will work and getting all made about it now?
It's very simple make them speak, make them work for the delay. sitting in their offices and pouting that they don't like the vote so they won't is for 2 year old. We need the filibuster so that the minority is heard, but make them actually work for it I don't care if they are reading the phone book but if you believe that something is wrong then stand up and be heard.
Reading between the lines of what Harry Reid said:
and Jonathan Bernstein's quote q.v.,
it would seem that Senate rules pertaining to the filibuster can be modified by a simple majority on the first day of the new Senate, rather than an all-or-nothing abolition. If this is how it works the devil, or the angel, will be in the details. I guess they keep such things close to their chest until that crucial convocation, meaning we'll all have to be rather patient with our fingers crossed, which is a pity because it is such an interesting and pivotal moment.
Of course, it does no harm to let them know what our expectations are.
If only there were no filibuster when Pelosi got all that good legislation through the House...the nation would already be a much better place to thrive.
I posted once before that Reid is to blame for the Health care debacle for allowing more time for debate and discussion so the tea party could thrive in those disgusting town halls to threaten Health care reform and its supporters. His idea of filibuster reform really makes me nervous due to his timidity in approaching the rule to begin with.
If he doesn't want to end the filibuster rule then at least I hope he limits it. Make them actually talk for days but put a time limit on the debate as it halts senate business say for 3days...then all the discussion would have been stated. Then a vote should be taken to end debate and vote on the bill. The number of filibusters should be limited per session to say a... 7-10. This way the press will show the public why those who filibuster the bill are doing so...all discussion stated for 3 days...then the vote taken. The public will be very well aware of the minorities' objections in all its trivial detail. But the legislation or the nomination cannot be blocked but a well informed public opinion will influence the next election enough that filibusters will be well chosen...and not just haphazard as they are now.
All eyes will be on the subject intently for 3days so changes and opinions can take place in full view of the public.
Simple like elementary school; if you choose this behavior you will be keeping your peers after school as well. Seriously if you say you are speaking for your side in choosing to block a bill your Republican peers need to all stay until it is settled.