Associated Press
Some ideas work better in the movies.
For those looking for institutional Senate reforms, including revisions to the chamber's filibuster rules, there's good news: most of the Senate majority seems less focused on whether to make changes, and more focused on which changes to make.
Senators are not without options. Eliminating filibusters on motions to proceed, for example, seems to be one of the more obvious changes that enjoys a fair amount of Democratic support. There's also talk of eliminating filibusters on confirmation votes, and even a mechanism in which the filibuster threshold would drop incrementally, while debate continued.
But there's one idea that seems to generate more chatter than any other.
The next time a minority of senators find something the majority supports to be objectionable, they may be required to take the Senate floor and explain just why they object. And when they're done with that, they'll have to keep talking, and talking, and talking.
The most persistent advice that Senate Majority Leader Harry Reid (D-Nev.) said he gets from liberals he meets across the country is as simple as it is frustrating: "Make them actually filibuster!"
Under the status quo, there aren't literal filibusters. The minority routinely blocks up-or-down votes, creating an environment in which mandatory supermajorities are required for literally every bill of consequence, but there is no one on the Senate floor, trying to talk a bill to death, along the lines of "Mr. Smith Goes to Washington."
Many Democrats want to change that. "You have to present your case," Sen. Jeff Merkley (D-Ore.) told the Huffington Post. "If you think there should be more debate, then you've got to debate. You've got to present your case before your colleagues, before the American public. If you haven't got the guts to do that, then you shouldn't stand in the way of the majority vote."
The idea is to create a series of incentives -- or in this case, disincentives. If the Senate minority wants to block a majority-rule vote on a bill, they're going to have to work for it, standing on the Senate floor and making their case. If it's an especially popular piece of legislation, the minority would be in the unpleasant position of talking endlessly against something that enjoys broad public support.
The support for this kind of reform is perfectly understandable, but there's room for skepticism.
Jonathan Bernstein has been writing about this for a few years now, and he had a good piece on the debate yesterday.
The idea that Republicans would surrender if only they were forced to stand up and fight for their views is, well, totally divorced from the reality of what politicians are like. Republicans -- any minority party, on almost any issue -- would be very happy to hold the floor indefinitely. It's free publicity for them. And they care little that nothing else can get done in the meantime. They're in the minority; the things they want aren't going to happen anyway!
That's why it's the majority party that benefits from avoiding live, talking, filibusters. Indeed, under current rules, the majority could force a live filibuster at any time; there's just no point in doing it. The demise of live filibusters isn't what caused the explosion of filibusters, and forcing live filibusters by itself isn't going to end anything.
It's unsatisfying, forcing real filibusters is not without meaningful drawbacks.
The one reform idea I happen to like best -- lowering the threshold from 60 to 57 or 55 -- hasn't garnered as much support, but I'm still hoping it'll be added to the mix.
Leave a Comment:
I think the best idea is to require a 2/5 vote to keep a filibuster going instead of a 3/5 vote to break one. Then the minority party would be required to keep 40 members on hand to block the vote at all times instead of the majority having to (like they did with Senator Byrd) wheel a dying man into the chamber to break the filibuster. If the minority party wants to filibuster something they strongly believe, that's their option. But it needs to be difficult for them.
Obviously, I agree!
The only reform worth talking about is abolition. Period. Full stop.
I agree with TCinLA; get rid of the damn thing.
Senators remind me of those people on the hoarding shows, so emotionally attached to all the pieces of crap from the past that they can't bear to throw them away, even though keeping them destroys their current quality of life. The filibuster is like some mildewed pile of old magazines you will never read. It's not doing any good, and no one will miss it when it's gone.
I feel along the same lines. The requirement shouldn't be so much a fixed number, but a percentage of those who are present and voting. Arriving at what that percentage should be is the job of the next senate.
Completely getting rid of it would be a mistake as I am certain the D's will find themselves in the minority at some point in the future and it is designed as a protection for the views of the minority. However, the minority should have to work to make it work not have a member simply say "I'm filibustering" as s/he heads out for a round of golf or whatever
Rather than eliminating the filibuster entirely, as suggested above, I'd allow it for legislation, cabinet appointments, or judicial appointments (Dems kept some real a-holes off the bench with the filibuster). However, I'd make them talk, as described above, and limit the number of filibusters that could be used in any one congress to a very, very, very low number (5 per congress?). As a result, the filibuster would be the exception, not the rule, and the minority party would have to be extremely selective about when they'd use it.
2/5 would be just 40 votes. The republicans have ample votes to keep it going so I don't see any advantage to using 2/5. Why not 3/5 vote to keep it going?
The minority should be forced to make their case in a live filibuster but they should have a deadline of say, 3days. At which time the threshold for passing the bill etc should be lowered and finally reach a point of normal voting.
The point of the minority then has been well made demonstrating why they believe the bill or nomination needed more scrutiny but eventually the issue will be voted on. This will keep the public well informed on the minority's opinion and will lead to influencing the election of some senators...but will never allow the country to be ruled by the minority as it has been the last 6yrs.
Also, the number of filibusters per session should be limited to prevent the breakdown of the senate by minority tactics.
Imagine how much better the state of the nation would be right now had this one senate rule had not been abused to the extent of setting records of its use.
"(Dems kept some real a-holes off the bench with the filibuster)"
Name one. Judge Pickering from Mississippi is literally the only person I remember getting successfully filibustered by the Dems during the entirety of Bush's two terms and he still got recess appointed for almost two years. The Dems didn't even try to filibuster Alito who was already on record for approving the strip search of a 13 year old girl for eating french fries on the subway or something equally horrific. The Dems, being fundamentally supporters of Democracy, will never filibuster a Republican nominee unless there is, at a minimum clear evidence of criminal conduct. The Republicans, being haters of Democracy, will filibuster every nominee just to hamstring a Democratic president.
Abolish the filibuster for judicial appointments and presidential nominees. Abolish it completely. If a future GOoPer abuses it, then hang his appointees misdeeds around his head, but don't pretend we need this anti-democratic and unconstitutional filibuster to "protect us" because that ain't happening.
I don't think the filibuster should be eliminated. I do think it needs to be structure so it is something that is used as a last resort not frequently like it now.
In response to Alan Alexander: One word - Bork.
The skepticism mentioned in the post above about requiring actual filibuster long-windedness on the floor is missing a key piece of information: A TRUE FILIBUSTER IS PUBLIC. (at least on CSPAN).
So yes, obstructionists and scorched earth-types could continue to execute their long-winded obstruction and earth-scorching by eagerly holding forth in real filibusters, IF they have the political will to do it.
Funny thing, political will. You can get yelling at town halls, even with astro-turf teabaggger frothing over "Obamacare," you can get an entire cable network functioning as a de facto political demagogue, and they can ride that freaky polarized extremism all the way to the end of their bunker-hiding gazillionaire's checkbooks.
But when the nuts stand up and obstruct, even if they're reading the phone book, THEY GIVE FODDER to the YouTube/Cable News video clip ridicule ecosystem. Virality plus plus humor could be more powerful than direct debate.
And political will, even if bent toward extremism, is affected by both public and political pressure, no matter how iconoclastic the nutjob holding forth may be. They're in office because they got elected. ANYTHING that brings more of the fringe behaviors of people who somehow get elected into the sunshine is (as Martha Stewart would say) A GOOD THING.
I would do away with that rule completely, the GOP will be years beating the dead "White" horse Rmoney and Rayn just rode and put up wet.
I don't know. I mean, obviously, the filibuster has been abused in many cases in the recent past, but I kind of get its purpose. While officials elected to office are technically there to represent the will of the people, there are still people behind the ones who elected the minority. It's rather unfair that the minority could potentially never have support. The minority right now are the Republicans, but what if the situation had been reversed?
I'm kinda leaning more in favor of enforcing the rule that filibusters actually *be* filibusters. That it be used and practiced the way it was intended to be used and practiced.
The filibuster should be reformed by ending it. The Senate should also end anonymous holds, the practice where any Senator can hold up a bill or a confirmation hearing without stating why or who they are.
Bills and confirmations should be voted on in public and pass or fail by majority vote.
Hold Senators accountable for their votes instead of preventing accountability by obscuring and preventing up or down votes.
Absolutely, this business of anonymous holds is disgusting and cowardly. It has no place in any transparent democracy.
Please sign this petition at Change.org to reform the filibuster and end the secret hold. Share the link with your friends on facebook, twitter, and Google+, too.
Right now 60 votes are needed to stop a filibuster. Even if the 60/40 concept holds, the onus should be on the 40 to keep the filibuster going. At any point a single senator should be able to demand a closure. If the filibustering party can't come up with 40 votes, the filibuster ends.
wow ... i haven't heard this b/4 which may be reason enough (for me) to give it serious thought ... it's obviously not a kneejerk, worked-over reactionary response
thanks
If, after how long it's taken to get senators to realize that the filibuster is being abuse, all we get out of this is a talking filibuster, I'm going to be spitting nails. The ostensible purpose of the filibuster is to extend debate. Let it extend debate, but not indefinitely. The best idea is to have the number of votes required for cloture drop over time, until it's a simple majority.
I never again want to hear the idiotic words "of course it takes sixty votes to do anything in the Senate" or even worse, "the vote was 59-41, so the bill failed."
At the very least -- the VERY LEAST -- judicial and executive nominations have to get up or down votes within a reasonable time. That MUST be done. Then they can wrangle out how to avoid the other major legislative bottleneck tactics. Remember: we would have done something about climate change and have a better ACA if it wasn't for filibusters. This has to be addressed. It has prevented the nation from solving its problems because of a stubborn bunch of Know Nothing shhit-for-brain ignoramuses from red states.
Kill. The. Filibuster. Period.
Tempting. But man, oh man, awfully dangerous. Imagine what a Romney-Ryan-McConnell-Boehner control of the government with no filibuster would have done. There might have been a public backlash but I don't think those conscious-less reptiles would care, and then they'd wreck the country (and world) for two generations.
At minimum, nominations have to get up or down votes, though. That must be the way it works in 2013. (And then Obama needs to get his ass to work on the nominations.)
While I find Disgusted's point compelling, there is the thought that keeps popping into my mind--that the public should get exactly what they vote for. If they put a majority of repugnicon's in office, they deserve what they get.
That said, I doubt we get abolition, or the incremental plan which I favor. Most likely we'll get limits on using filibuster on motions to proceed, possibly limits on its use over appointments. Both of those would be positive. Perhaps we'll get talking filibusters, but that alone will not have a positive affect on passing the majorities agenda.
The only thing we can hope to get done over the next two years is appointments, without effective reform, there is no hope at all. If there is no reform then we'll have to wait for the mid terms when repugnicons are likely to take over and abolish it.
DWIA makes an excellent point in that Obama hasn't exactly been working over time to fill the positions that are vacant. He needs to get his butt in gear.
Does the public even get the government it votes for, though? More people voted for House Democrats than House Republicans but we still have a GOTea House. The system of American government is hopelessly flawed, has been from the beginning, and little change looks possible. It has only been recently, however, that an unethical and immoral Republican party has been willing to take advantage of those foundational flaws.
Changing the rules just to change the rules makes no sense. That is a typical congressional move. Real reform means all bills get an up or down vote and pass or fail with that vote. Period. Majority rules. That's real reform in the senate. I doubt we will ever see it, however!
"Making 'em filibuster" might be the dumbest idea I ever heard. Wasn't Mr. Smith the hero of that movie? Americans want things to get done, so just make the cloture vote subject to 51 votes. Period. We have three branches of government and 2 houses of congress. That is plenty of safeguards against tyranny of the majority. Giving this magical power to stop all progress to uneducated white men in rural states is just plain stupid!
I say, let the Republicans get up and hold the floor as long as their soulless little hearts desire.
Imagine people actually listening to the Republican's as they prattle on and on, getting more irrational as they continue to look for something to say, just to keep their filibuster going?
Let DeMint, after he's got nothing left to say, start talking in tongue's.
Let Cornyn put the entire nation to sleep, spouting talking points and meme's.
Think of the fun we'll have, as they get nuttier and nuttier as they try to extend that filibuster.
This would be even MORE fun, if the House was allowed to filibuster. Can you imagine the idiocy we'd see, and hilarity that would ensue, if Bachmann, the King
"brothers," Gohmert, and other Republican clowns had to hold the floor by continuing to speak?
I don't know about that. You might be underestimating the stupidity of the American public. Never underestimate the stupidity of the American public. I say a time limit on minority filibusters is the only safe way to go to avoid continuing obstruction.
Good point!
Yes, limit the time. Thank you.
Well, who knows what the answer is, but one thing is for sure, we can't let McConnell continue to sabotage the country with his treason. Jeez, that guy gives me a case of the hates. The only thing I'm pretty certain about is that judicial and executive nominations can not be held up by a minoroty party. They can have their say, but then there has to be a vote within some reasonable time.
Nobody listened to the filibusters back when they were talkies. If Americans were inclined to tune-in to the happenings of their Congress, talking filibusters would certainly dissuade them. Who wants to listen to someone read from the phone directory?
I'm not sure I agree with Bernstein. Sure, politicians love FREE publicity, but they don't particularly like BAD publicity unless they can somehow make lemonade out of those lemons, the way Joe "You Lie!" Wilson and Jan "Wag the Finger" Brewer made their bad behaviors fundraising pitches. But on the flip side, their constituents get to see a side of their reps that come across as thoroughly unlikeable. I can't imagine any Senator wanting to be the person who stands up and talks for hours on, say, why a veterans bill shouldn't get funding, or an education bill, etc. It'll speak to their base, but it'll also speak something else entirely to their opposition. It's like starring in your own oppo ad.
The problem is that past history shows that when they get up to filibuster, they don't have to address the situation at hand. They just as likely will read the Bible as explain why they oppose veterans' benefits, even more likely. That way they don't get any flack for opposing what any normal, decent human being is for.
I think Bernstein's full of it, and here's why:
1) Many Dems are willing to make it harder to use the filibuster, but they don't want to totally gut its usability in case they're someday in the minority, and want to block a particularly odious piece of legislation.
The question becomes, what's the best deal we can get that satisfies their implicit criteria? This sort of thing may be about as good as it gets.
2) The next question is, what do you hope to get from filibuster reform?
What I'm hoping to get from it is to see the minority party be forced into picking and choosing when they filibuster, rather than being able to filibuster the appointment of every Circuit Court judge or Undersecretary of Transportation as they do now. I think something like this would have that effect - even the most shameless publicity hounds in the Senate have other places they want to be. If they've got to be on the floor to filibuster, they can't be on the phone trying to put the touch on campaign donors.
3) Responding to one of Bernstein's points, I don't think it would result in more publicity for the minority than the majority, who would be free to talk as well: the debate wouldn't end when the minority stopped talking, but when the minority didn't have sufficient bodies on the Senate floor, after all.
4) Responding to another, he's right that the majority could force a talking filibuster any time, right now. But they'd have to keep 50 Senators on the floor in order to do that, and the minority would only have to keep one Senator talking. It's this tremendous imbalance of inconvenience that makes it possible for the minority to filibuster as a matter of course.
Establishing a balance of inconvenience is key to filibuster reform: if anything, filibustering should be more difficult for the minority to maintain than for the majority to force them to maintain, and the number of Senators the minority would have to keep on the floor during a filibuster should be chosen with this in mind.
Cyclist -- Many thanks for a thoughtful and literate contribution.
If the purpose of the filibuster is to allow more debate, a time limit would be good. Fine, you can have your filibuster, but you now have 2 days of extended debate. You can use that time to actually talk about it, or to garner public support for your position, etc. After 48 hours it goes to a simple majority vote.
Another possibility would be to look at making it a 60/40 PERCENT instead of headcount vote. If the Senators are too lazy to stay and listen to the debate and/or participate in it then make it a percentage of Senators who are actually there doing their jobs instead of out raising funds or attending parties.
They never listen in the first place. They put a staffer in place to watch for the vote and then they step-in to vote and then go back to polishing their knobs.
Such a percentage would favor the obstructing party since they have to have their talkers in place to maintain the filibuster.
Even without the filibuster, we've got these anti-democratic obstacles to enacting legislation:
1) We have two houses of the legislature instead of one, and every bill has to pass both
2) The Senate is elected on a six-year cycle so when there's a shift in public opinion it takes years for Senate to reflect the change
3) The Senate is elected by state, so low-population rural (and mostly conservative) areas are grossly over-represented while populous urban (and mostly liberal) areas are diluted by being lumped in with the rest of their states (eg., Wyoming gets 2 senators, while Brooklyn, which has five times the people, gets none)
4) The president can veto anything that gets passed
5) The Supreme Court can invalidate anything that gets passed
It's a wonder anything ever gets passed at all. And yet, on top of all this, some people think that we need the filibuster to make sure that nothing awful gets enacted. Why not just send the Congress home and say "no new laws!" That way, we can be double-sure that nothing bad will ever be passed.
nope ... the supremes can only "get rid of" something that is unconstitutional ...
and they have said 'no new laws' (see the chart publ in another maddow blog post' -- 2.8% introduced/passed ... ridiculous
Once again, we fall for this old trick...
"Filibuster reform" is only a small part of the issue. The Senate Dems could simply stop agreeing to these virtual filibusters and interpret the rule as written...
But "Filibuster Reform" isn't the only thing in the rules that we should re-consider. I do not understand the "custom" of allowing a single Senator to anonymously stop a nomination, etc. Why any legislative body would put a meaningful veto into the hands of a single member is quite beyond me....
What we really want is "Senate Reform," not "Filibuster Reform." But as usual, we'll end up with a few crumbs and think we've won something...
It's sad, really.
I think it is high time for the Senate to re-organize itself. I agree Jim Pharo. I think it is ridiculous to have a majority of one that can hold up the business of the Senate. Then there are the non-germane riders that are attached to bills. I don't think that a bill should be hidden in another bill. If a bill needs to be passed it should be able to pass on its own right not hidden in another bill.The filibuster rule as it stands is silly and does nothing, but disrupt the business of the Senate. I know that the majority is not always right, but it is the majority and that should count for something. As it presently structured the Senate is a joke,but not a funny one. We need to be writing to our Senators and Representatives and tell them we want some reasonable action.
It also gives them more rope to hang themselves with, though. And knowing the GOP's penchant for saying stupid things when silence would be more effective, the "talking endlessly" thing would not really be in their best interest.
Also, they don't have enough good ideas to talk endlessly in the first place, and it will probably peter out into crap like reading the NYC phone book on the floor of the Senate.
While the 'talking filibuster' does provide the filibusterer (filibusker?) a dramatic and public place on which to make their case to the nation, I don't think this will be such a great win for Republicans. In the world of Frank Capra, of course, you'll have kids distributing hand-printed newspapers with the headline "Smith Speaks Truth" across the top. In today's world you will have viral YouTube videos with a crawler saying: "Senator Blowhard is talking himself raw to block cost of living increases for the survivors of our soldiers."
There is power in the image, and especially in the video image. Just think how it will look, seeing some old guy reading from the Book of Ephesians on the Senate floor. He will pause for ten seconds, while a caption pops up: "Senator Blowhard is peeing in his pants while reading the Bible to keep millionaires from having to pay an extra four percent in income taxes. He will endure any indignity for his wealthy friends." "Senator Blowhard is @!$%#ting in his diaper so you will still have to wait seven hours to vote."
On the other hand, a video may well say: "Senator Blowhard is talking himself raw to continue providing health insurance to poor children." "Senator Blowhard is willing to pee in his pants to ensure uniform voting standards."
Free publicity? Yes, but that's a double-edged sword.
Any reform that requires people to actually have to talk the whole time with a large contingent listening would be a great improvement. The amount of cloture actions over time has dramatically increased in the past 12 years.
http://ballotlines.wordpress.com/2012/11/14/building-a-divided-house-the-structural-causes-of-our-partisian-politics-part-1/
The Republicans are using the filibuster to stop motions to proceed which is a vote to bring a bill up for debate. That should be abolished and only a simple majority be required to bring the bill for debate. Reducing the number of votes needed for cloture is not going to stop the minority from filibustering a bill. The number of votes required for cloture should decline with each passing week the Senate is in session. I would agree with the other reforms that the minority be required to be on the floor debating the bill and that both sides be required to have a minimum number on the floor during a filibuster. But the reforms should also require the debate be confined to the bill in question and not reading from telephone books, novels, etc.
The filibuster is THE only anti democratic device slipped into Senate rules that has not required by the consitution. It is a senate "rule" conjured up by the senate over time and has been long accepted. But at the beginning of each new senate (following elections) those "rules" are up for verification or amendment by MAJORITY VOTE.
The Dems now have that majority in the senate. By their majority vote they could "rule" that the "nuclear option" can be used to end filibusters and conduct the people's business. Or, end it by majority vote after 3 days of a filibuster. Back to democracy.
The present system cannot be allowed to continue or we cannot label ourselves a "democracy."
I tend to agree on the relative futility of the "make 'em talk" approach. As noted, the Senate already has this power and it has to be used judiciously.
As a general matter the Democrats should only make changes to the filibuster rules that they could live with themselves when they are, inevitably, in the minority again some day.
In this respect, Yes on putting EXECUTIVE, but not judicial*, appointments outside the filibuter. Hearings yes, but then up and down votes for Executive branch appointments. The Democrats could live with this whether they are in the majority or minority, and whether or not the president is Republican or Democrat, in other words, under all scenarios. It is only governance obstructionists, e.g., Republicans, who would have a problem with giving up this power. Notice, by the way, how getting rid of filibusters on Executive branch appointments, marginalizes McCain and Graham, and their cheerleaders, Limbaugh and Fox News, on a possible Susan Rice nomination as Secretary of State.
*Since judges get lifetime appointments, it would be just too risky to give the Republicans the ability to tilt the judiciary to the extreme right for generations, which they would surely do if there were a Republican president and they had a simple majority in the Senate. Not a perfect situation to still allow filibuster for the judiciary, but it would be highly imprudent to give this up. Let the Republicans cross this red line first.
The second thing that should be done is to put votes on the debt ceiling outside the filibuster. A simple up or down vote is all that should be required. That dosn't solve the problem of a bat s*&t Republican House, such as the one we have had up until now. But it's a start in the right direction and would arguably force the House to reflect just a bit more if it was aware that it might not be saved from its folly in the Senate.
Again, not perfect, but arguably a further step in the right direction.
Keep the filibuster, just limit what can be used during the filibuster.
Require the Senator/s to speak only to the merits of the legislation if the filibuster is in favor of a piece of legislation/nomination or, that legislation/nomination's drawbacks if the filibuster is against it. The legislation/nomination itself is the only topic the Senator/s may speak on. The Chair is to make the decision as to whether or not a Senator is speaking to the legislation and, if the Chair rules that the Senator is not speaking to the legislation, that ruling can be appealed and is determined by a simple majority vote.
The requirement to speak to the legislation by itself will prevent the use of telephone directories, etc. and should keep the length of any filibusters that do occur fairly short. Should also cut down on debate times, too.
I like the idea of an actual filibuster. Let them talk. Usually their reason's against are silly, partisan, biased, baseless, and just plain stupid. When they are against something it is usually because they are working for the 1%. It will become very clear to the public that is watching.
Then when they are questioned on their stances either by the opposing side, or the public (read: media) they won't really provide valid supportable data.
If their points have merit, I think the filibuster vote will be supported by all sides. If not, let them talk and talk and talk.