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Four ways to end the filibuster

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Steve Pearlstein wants to bring the filibuster back to its first principles: Ensuring unlimited debate. His suggestion is to kill the filibuster but promise the minority that debate can continue until "a bill is passed or defeated or Senators agree to give up and go home."

That's not likely to happen, of course. Among other things, the minority has no incentive to agree, and the majority can't let debate go on forever, because they have to pass bills to keep the country going. But what can we do? Like Matt Yglesias, I get the occasional request to stop whining about the rules of the United States Senate and actually propose a way to fix them. Okay: End the filibuster. But if there aren't 60 votes to break a filibuster on health-care reform, there aren't 67 votes to change a Senate rule. Here are the other options:

Provoke a crisis: You could do this in a couple of ways. Let the GOP filibuster forever, meaning that government effectively shuts down entirely. Attempt to change the rules on the first day of a legislative session, when it only requires 51 votes. Have the presiding officer begin overriding minority members left and right. However you do it, the idea is to force the question. Either the filibuster is ratified or it is broken, but until some affirmative choice is made, the Senate is out of commission, and the government ceases to function.

Putting aside the fact that there aren't the votes for this strategy, it's a high-risk idea that will probably fail. You lose the public relations fight when you're seen to be shutting down the Senate so you can more effectively ram your agenda into law. Democrats aren't popular enough to pull this off.

Wait for an actual crisis: If the United States Senate continues to be unable to act, then there's virtually no hope of handling our mounting deficit, or averting the long-range dangers posed by health-care costs. An economic collapse caused by gridlock in the legislature might convince people that change is needed, as seemed to be happening in California. Or it might not, as is actually happening in California.

Circumvent it: Just as the filibuster grew out of a fairly obscure rule that was never meant to become the central operating principle of the United States Senate, so too could it be overtaken by another fairly obscure rule that was never meant to become the central operating principle of the United States Senate: The 50-vote budget reconciliation process. If health-care reform had ended up in reconciliation, it would've been the effective beginning of the end for the filibuster. All major legislation from then on would be written to go through budget reconciliation, and eventually the Senate would either loosen the Byrd rule so that budget reconciliation could take all kinds of bills, or it would loosen the filibuster so it could get back to functioning through the normal legislative process.

Agree to end it: The filibuster prevents reform of Social Security as surely as expansion of health-care reform. It's as bad for deficit hawks as it is for free-spenders. It's as cruel to the Employer Free Choice Act as it is to corporate tax cuts. Democrats don't hate the filibuster any more than Republicans. They just hate it at different times. The result, however, is that neither party can really enact its agenda when it's in the majority. Eventually, the two parties may tire of this. Or they may tire of seeing the Federal Reserve take the lead on bailouts and the Supreme Court take the lead on choice and the EPA take the lead on climate change and Congress become progressively less relevant. In that scenario, the two parties might get together and agree to end the filibuster at some point in the future -- say, six years, or a full Senate cycle.

Do I think any of this is likely? Not really. Senators like the filibuster. It keeps them relevant when they're in the minority. It makes their chamber a lot more powerful than in the House, and ensures that the leadership has to listen to their concerns more closely. But if any change is ever to happen, it's going to require a long, long period of public education, and a recognition by grass roots and elites alike that the filibuster is bad for their side, as well as for the country.

Photo credit: By Alex Brandon/Associated Press

By Ezra Klein  |  November 11, 2009; 3:43 PM ET
Categories:  Congress , Senate  
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Comments

Just curious -- but I have been wondering what would actually happen if the Republicans were allowed to filibuster. Would they tire? Would the American public get even more disgusted with them to see them blathering day after day after day? Isn't there a downside to a filibuster for the party doing it? It would seem to be that the filibuster itself is a high risk strategy for the minority. They can sustain it for awhile, but after an onslaught of media and majority comments about how Americans are suffering because the Republicans won't let them get insurance reform, wouldn't it lose some steam?

Posted by: LindaB1 | November 11, 2009 3:56 PM | Report abuse

This reminds me so much of the 2005 "nuclear option" talk, and my arguing to anyone who'd listen what a golden opportunity we were letting pass to stop a handful of right wing judges. I'd take an entire right wing judiciary to get rid of these absurd Senate rules, and have the elections we have actually matter as to how we're governed, and not a bunch of archaic procedural roadblocks.

Posted by: zeppelin003 | November 11, 2009 4:04 PM | Report abuse

THANK YOU!!!

Posted by: DaffyDuck2 | November 11, 2009 4:10 PM | Report abuse

Of course then that right wing judiciary would rule everything your progressive Congress passed unconstitutional. Then there would be some random sex/corruption scandal, we'd lose Congress, and you'd just have a powerful far right Congress AND court.

I mean that's kind of the problem with all of this talk -- sure, maybe ending the filibuster would lead to a more responsible political culture where politicians realize their positions have consequences. But that's not the system we have NOW. It's not clear that merely changing the legal backdrop would change the underlying culture -- resulting in a pretty horrifying situation where you have Majority Leader Tom Coburn promising to ban abortion and having the ability to actually do it. The electorate isn't used to rewarding politicians for their restraint and sobriety -- it might develop that sense, but we would go through some crazy times to get there.

Posted by: NS12345 | November 11, 2009 4:16 PM | Report abuse

Ezra you left off one option, which is for the Democrats to make the filibuster exactly this costly for the Republicans. The Republicans have been filibustering things as a matter of course, whereas Dems routinely let enormously consequential bBush votes sail through on a simple majority basis. If these are the new rules, both sides should be playing them -- a situation that would constitute a "crisis" just as much as anything Dems would do in the majority.

Posted by: NS12345 | November 11, 2009 4:23 PM | Report abuse

"Attempt to change the rules on the first day of a legislative session, when it only requires 51 votes."

This doesn't seem to require a crisis.

It would be useful if it could follow a win in the midterms, though.

Posted by: adamiani | November 11, 2009 4:24 PM | Report abuse

How did we get reconciliation? Can't we get another, less budget-oriented, alternative to the usual order by the same route? For example, amend the rules to permit the ruling party to have one legislative proposal per term considered under majority rule. Perhaps throw in stricter pay-go rules to apply as a sweetener for the Reps. Of course, today it would require the Dems to decide whether cap and trade or healthcare reform would be the first priority.

Posted by: bharshaw | November 11, 2009 4:25 PM | Report abuse

I think it's interesting that left-wing Democrats are always trying to eliminate or marginalize their partisan opponents when they get power in the Senate. They successfully reduced the power of the filibuster in the 1970's by reducing the threashold for obtaining cloture (ending debate) from 2/3rds (67 votes) to 3/5ths (60 votes), and now that you have 60 drones, that's not good enough. What's wrong with the time-tested concept of bipartisanship? That's precisely what you're trying to end, and I'm strongly against it, no matter which party has the majority.

(written by a former Secretary of the Senate)

Posted by: Exile_in_Philly | November 11, 2009 4:28 PM | Report abuse

There's nothing wrong with bipartisanship, there is something wrong with a non-Constitutional supermajority requirement for all Senate action. As has been written here before, California is showing us EXACTLY what happens when the legislature is gridlocked by the need to obtain a legislative supermajority. And for you tea partiers out there, how likely do you think it is that there'll be 60 votes to balance the budget at any time in the future?

Posted by: etdean1 | November 11, 2009 4:41 PM | Report abuse

The problem with "time tested bipartisanship" is that the repiglicans are batsh*t crazy. There outside of Maine, there are no moderate republicans left in the senate and precious few in the house.

Weren't you listening when Kyl said that it doesn't matter what is in the healthcare reform bill, the repiglicans will oppose it.

Didn't you watch Grassley, Hatch, and others repeatedly move the goalposts as to what they would consider a bipartisan bill (80 votes anyone?)

Didn't you see the wingnuts on parade at the capitol last week. As ruth marcus said in the wapo, they are so pathetic that repiglicans don't even bother to oppose what's in the bill; they demagogue proposals and positions that are not even remotely suggested in the bill. Government takeover of healthcare (we should be so lucky), death panels, cuts to medicare reimbursements (that is so rich from the repiglicans who opposed medicare from the start and waged war on it whenever possible), need I go on?

Posted by: srw3 | November 11, 2009 4:48 PM | Report abuse

I have faith in the people of this country to govern themselves, without these archaic roadblocks, which are a relic of an era when people were far less informed than we are today. Would there be times when this country would elect Republicans to control of the legislative branch? U bet. And they'd have to deal with the truly awful consequences of the policies the Republicans would like to enact and force us to live under, and it would be the end of their party. It'd be similar to when Hamas won the palestinian elections.

These Senate rules are anti-democratic, and we really need to start a progressive movement to rid ourselves of this vice-like grip the Senate has on the everyday lives of Americans. Enough is enough with these shackles.

Posted by: zeppelin003 | November 11, 2009 4:51 PM | Report abuse

What's wrong with the time-tested concept of bipartisanship?

This is blessedly simple. Nothing, so long as thats what the American people want! There's exactly 40 Senate republicans out of 100, after two consecutive elections when this country screamed "go left!". Yet because of the existence of the Senate, we're handcuffed to the whims of Joe Lieberman and/or Olympia Snowe. Its completely absurd.

Bipartisanship only works when both parties have control of something, and right now the GOP controls nothing, and its a ripoff to the will of the people to have them and a few other interlopers able to interfere.

Posted by: zeppelin003 | November 11, 2009 4:55 PM | Report abuse

I agree with LindaB1, force the Republicans to actually filibuster. Make them stand in the well of the Senate hour after hour day after day with nothing being done. Let America see them holding back the medical care most Americans have repeatedly said they want.

Posted by: Repub | November 11, 2009 5:07 PM | Report abuse

I have felt for MONTHS that Harry Reid, that poster grown-up for Stockholm Syndrome, should have been making the Republicans put their mouths where their mouths are, instead of just taking their word for it that they actually would filibuster and give away the store in advance.

As LindaB1 recommends, make the Republicans control the C-Span Senate microphones and TV continuously while pointing out on other media how many judges are not being confirmed, how many people without health insurance are croaking, how many zillionaires are getting their tax cuts while the Republicans are talking.

Posted by: edallan | November 11, 2009 5:20 PM | Report abuse

I imagine many Senate Dems would be hesitant to kill the filibuster for fear of losing it as a tool to use against future Republican majorities. This begs the question, what GOP initiatives between 1994-2006 would have passed if not for Democratic filibusters?

Posted by: Bill_Casey | November 11, 2009 5:45 PM | Report abuse

A note for everyone who wants the filibuster bluff called: the modern filibuster isn't a long speech or reading the phone book, it's making points of order about the lack of votes for cloture. All the R's need is one member at any time to make those points, and the D's would not be able to close debate without 60 votes. Optics aside, that situation is enormously tilted in favor of the R's.

Posted by: etdean1 | November 11, 2009 5:48 PM | Report abuse

Ending the filibuster doesn't require any kind of huge effort. All it requires is a majority party that actually wants to do away with the filibuster. What would the minority do if the filibuster was abolished? Appeal to the Supreme Court? Good luck with that.

Posted by: redwards95 | November 11, 2009 6:05 PM | Report abuse

My thoughts have been -- let em filibuster.

See, the problem with any intentional distortion or intentional misrepresentation is that the longer it is in a spotlight, the less spinners are able to maintain the illusion.

It is exactly a long-lasting spotlight that will break the illusions that have been created to make people afraid of this reform.


Posted by: HalHorvath | November 11, 2009 6:19 PM | Report abuse

Here's a small example of what would begin to happen more and more with a long Republican filibuster:

http://www.washingtonpost.com/wp-dyn/content/article/2009/11/10/AR2009111013406.html?hpid=opinionsbox1

Posted by: HalHorvath | November 11, 2009 6:23 PM | Report abuse

You know the whole idea of "unlimited" debate is inefficient and wrong. When in our life do we ever debate, or think about things, for an "unlimited" amount of time?

Debate has a cost, at least the cost of time, which is very valuable. If it looks likely that the benefit of the debate in improving the decision or ideas is worth the time cost, then you continue. But if it looks like you've covered all of the major issues very well, and there's little to be gained by further debate, then it's not worth the time cost to debate further.

I can see having a minimum guaranteed debate time for the Senate to prevent steamrolling, perhaps, and then that minimum can be extended by majority approval, but a minimum of "unlimited" is inefficient and could result in big problems as we've seen, for example when it was used to thwart civil rights legislation by filibustering southern senators.

Posted by: RichardHSerlin | November 11, 2009 6:26 PM | Report abuse

"But if any change is ever to happen, it's going to require a long, long period of public education, and a recognition by grass roots and elites alike that the filibuster is bad for their side, as well as for the country."

Yes, but the model that we've seen be very effective for this, for example with free trade, is that if you can first get a strong consensus among experts and opinion leaders, then the strength of this consensus is very persuasive and compelling to well educated citizens, and this can lead to consensus among well educated citizens, and that consensus is very persuasive to less well educated citizens, and so on, as pressure and persuasion builds on the politicians to act accordingly.

This kind of cascade model is very effective.

So, why hasn't Paul Krugman come out against the filibuster -- will he at a strategic time? What about E.J. Dionne?

Posted by: RichardHSerlin | November 11, 2009 6:42 PM | Report abuse

The problem isn't that filibusters are possible, the problem is that they are cheap for the filibusterers, and expensive for everyone else.

If we fix that cost imbalance we can still give a highly motivated minority the ability to delay legislation (arguably a good thing) while making routine use of the filibuster unattractive.

I think this would only require fairly technical adjustments in the rules. For example, if quorum requirements were greatly loosened during filibusters, then the filibusterers would have to stay on the floor, but they couldn't require their opponents to show up as well.

Also, if debate could be suspended (not concluded) by a simple majority, without affecting the status of the bill, then a filibuster couldn't block other business.

I'm not saying the necessary change would be easy -- this is the US Senate after all. But I don't think the real choice is between the current craziness and simple majority rule on everything, and I don't think huge changes would be required to end the problem.

Posted by: jedharris | November 11, 2009 6:48 PM | Report abuse

51 % after midterms doesn't work, because the Senate views itself as a continuing body. What if the Senate in the 2010 rules were to rule that it was not a continuing body and then reeact the continuing rules. In 2012, they would do the same. By 2014, a rule cycle has passed with the Senate voting they are no longer a continuing body and maybe 51% can change the rules.

But, you need to start asking Senate candidates now for 2010 how should you be able to block the will of the majority and if you are in the majority, how should the minority be able to block you.

Posted by: windshouter | November 11, 2009 7:48 PM | Report abuse

As it stands, the majority gives the potential filibusters a free ride. They won't start debate until they have the 60 votes to limit debate. Thus, the voters don't know who is actually impeding progress of regression depending on their view. As used to be the case, the opponents should be required to read their telephone books at least for a while.

Posted by: YesBut | November 11, 2009 8:57 PM | Report abuse

"Democrats don't hate the filibuster any more than Republicans. They just hate it at different times."

I hate it all the time, and I'm a Democrat. I look at the other Western Democracies and see things that help the whole populace. Things like a better health insurance, better social services, etc. All this leads to better average outcomes than the US on a whole variety of measures. In the US, we got huge gaps in these types of things between the rich and poor, between blacks and whites, etc.

I'm willing to allow us to become more "parliamentarian"-ish because the procedural conservatism of the Senate has not served the US well. And, to allow both parties the full power to do what they want will quickly moderate the right -- Once the public gets a flavor of the Teabag-controlled GOP, they'll soon turn them away. This will make the GOP better equipped to govern, and will allow the US to catch up with the rest of the world. All of these things are good.

Posted by: Chris_ | November 11, 2009 10:59 PM | Report abuse

I'd be interested to know if anyone from the Post's editorial page advocated eliminating the fillibuster when the Republicans were in charge of the Senate. I'm almost 100% sure they did not. It's funny how it's OK for the Democrats to fillibuster everything that came out of the Republican House and even Bush's judicial picks but it's not OK and we need to change it when the Republican's do the same thing to the Democrats. What's with the whining anyway, as they've been bragging about since Franken was sworn in, the Democrats have enough votes to end any Republican filliuster they want. If the Democrats can't get their own members on board to break a fillibuster then why should the Republican's help them out.

Posted by: RobT1 | November 12, 2009 9:21 AM | Report abuse

Like RobT1 said, I sure remember a lot of liberal defenses of the filibuster back when Bush was president. I don't remember one attack on it. Remember all the screaming about the Nuclear Option?

Posted by: MikeR4 | November 12, 2009 9:51 AM | Report abuse

cloture is the senate way to cut off debate of an issue

filibuster is a legitimate way of blocking legislation - "talk it to death"

but we are talking about the threat of a filibuster

in current senate practice one side or the other only needs to indicate that they are filibustering

no other business can take place until the motion is withdrawn or enough votes are gathered for cloture

this makes filibustering cheap

the threat to filibuster is equal in power to an actual filibuster

filibustering is a great inconvience to the senators

a quorum of senators would have to be in attendance as well as those who are speaking

they would also have to speak for a long time

in the 1960s civil rights era no senate term had more than 7 filibusters (including the memorable 75 hour filibuster)

the "new and improved concept" has led to a dramatic increase in the rate of filibustering

the rate rose to 49 around the year 2000

the 110th Congress broke the record for cloture votes reaching 112 at the end of 2008

harry reid could ignore the filibuster threat and require the require the filibuster if he chose to

is health care important enough to break the current senate norms?

would the electorate approve?

what would happen to the balance of power in the senate?

would the minority party sulk and make things unpleasant?


Posted by: jamesoneill | November 12, 2009 11:10 AM | Report abuse

That the US legislature is governed by incoherent and arbitrary rules that have never been formally written down in a constitution (as is customary in more modern democracies) is just part of the problem. The other part is that, regardless what conventional propaganda wants to make us believe (see the last two posts), the filibuster is overwhelmingly used by one party, the GOP. The Dems don't have the guts. They did not make use of the filibuster to prevent one iota of Bush's agenda.

Posted by: carbonneutral | November 12, 2009 11:28 AM | Report abuse


You know I really do not see why we need a Senate. It used to be that Congress appointed the Senators but there was so much corruption involved in that process (big surprise there) that the process was change to a popular election - which has led to corruption of the Senate (and congress for that matter) by campaign contributors.

I say we get rid of the Senate and go with a straightford state representation. The Congress is far from perfect but they seem to at least be AWARE of what the common voter is going through and we can at least kick them out faster!

MHeckler
CT

Posted by: rwheck | November 12, 2009 12:28 PM | Report abuse

Ezra,

You're missing an important option here.

You are, based on some good sources, incorrect in implying that you can only abolish the filibuster with just 51 votes on the first day of a legislative session.

The option of ruling the filibuster unconstitutional from the chair – what has been called the nuclear option – can be done on any day, not just on the first day of the session. That's why the Republicans, in the middle of a legislative term in 2005, were threatening the "nuclear option" in response to Democratic filibustering of judicial nominees. And this option requires only 51 votes (or 50 and the vice president to break the tie).

Here's Kevin Drum of Mother Jones on it:

...what if Democrats got rid of the filibuster?

Basically, this is easy to do. Without going into all the gory details, it depends on having a friendly Senate chair declare the filibuster unconstitutional and then having it sustained by a majority of the Senate. So all you need is Joe Biden (the chair) and 51 Democrats to support him and the filibuster is history.

This would, obviously, be the end of Barack Obama's post-partisan unity act, and the next step would be for the opposition party to go ballistic and shut down the Senate. That's what Dems would have done if Republicans had tried this, and it's what Republicans would do if Democrats try it. At that point, either the Senate chair rams through rule changes that eliminate the various ways individual senators can halt business, or else it becomes a pure public relations battle.

at: http://www.motherjones.com/kevin-drum/2009/08/filibuster-wanking .

Activist lawyer Thomas Geoghegan in article in The Nation, directly says, "Maybe we loyal Dems should start sending postcards like the following: "Dear Senator: Why do you keep asking for my money? You've already got the fifty-one votes you need to get rid of the filibuster rule." It's true--McCaskill and her colleagues could get rid of it tomorrow.", at: http://www.thenation.com/doc/20090831/geoghegan.

And as a final, and very strong, source, Columbia political science professor Gregory Wawro and Harvard government professor Eric Schlickler describe the nuclear – declare unconstitutional from the chair – option in their 2006 book, "Filibuster", noting how the Republicans could have carried out and succeeded with the nuclear option in the battle over judicial nominees of 2005, not on the first day of the legislative session, but in the middle, with only 50 votes and the VP. They write on page 270, "Vice president Dick Cheney stated that he would support Frist's efforts, meaning that Frist needed only 50 votes (if everyone voted) to invoke the nuclear option since Cheney would break the tie in addition to issuing the necessary rulings..."

Posted by: RichardHSerlin | November 13, 2009 1:45 AM | Report abuse

"You lose the public relations fight when you're seen to be shutting down the Senate"

But Ezra, I've been checking this again, and it looks like if the Democrats really wanted, if 50 senators plus the VP were really determined, they could use the nuclear option (the chair declares the filibuster unconstitutional) to:

1) End the filibuster with just 50 votes plus the VP, and NOT necessarily on the first day of the session, but at any time.

2) Prevent a shut down, or tie up, of the Senate, or at least prevent one that would last for very long.

How, why, and what are the sources?

There are a lot of sources that seem to imply this (unfortunately it's been all too hard to just find a clear, explicit, encyclopedic, authoritative, and up to date resource on the filibuster written for non-parliamentary lawyers, so, so far I've just put together pieces from many sources).

Ok, a very good article written at the time of the Republican nuclear confrontation over judiciary nominations in 2005 is "Everything you wanted to know about the 'nuclear option'", in Salon, at: http://dir.salon.com/story/news/feature/2005/05/12/nuclear_option_primer/index.html .

And, I will also give you with some excerpts from the 2006 book "Filibuster" by Columbia political science professor Gregory Wawro and Harvard government professor Eric Schlickler.

In chapter 11, they discuss the nuclear showdown of 2005:

An important strategic consideration for senators concerned the Democrats response to the execution of the nuclear option and what the impact of such a move would have on individual senators' personal power goals. Democrats threatened to respond with full parliamentary force to an attempt to use rulings from the chair to curtail filibusters of judicial nominations, using every weapon in their arsenal to bring all non-essential work in the chamber to a halt...The widespread prerogatives that senators possess, which leads to the chamber's heavy reliance on unanimous consent to get things done, would in theory enable the minority to tie the institution in knots and prevent progress on legislative priorities. (pages 271-2)

Sounds bad, but wait, here's the way out, the way to prevent this if 50 senators and the VP really want to:

...If the Democrats went to this extreme, Republicans would then have had two choices: either accept the resulting paralysis and hope to win the ensuing public relations war (page 272)

And now here's the way out of that:

...or push the fight further by using the same revolutionary tactics to curtail or remove the remaining obstructive tools used by the Democrats. (page 272)

Posted by: RichardHSerlin | November 13, 2009 10:56 PM | Report abuse

Continued from my last comment (I had to break the comment up to get it by the software filter):

The authors go on to note:

...If Republicans had pursued and won the vote to impose majority rule on the nominees and Democrats created a parliamentary quagmire without relenting, the imposition of additional precedents severely limiting individual prerogatives might have been necessary if key elements of the majority party's agenda were to be passed. A full crackdown would have required the majority to place limits on the right of recognition and impose new germaneness requirements. But taking such extreme steps would conflict with individual senators' reluctance to reduce rights that they themselves might need to draw upon in the future. (page 274)

So, the bottom line looks like 50 senators and the VP could, if they really wanted to, end the filibuster – at any time – and stop the senate from being shut down for long – if they really wanted to.

And it looks like the result would be not just the end of the filibuster, but also the end of other minority perogatives which make the Senate less democratic, efficient, and effective.

Posted by: RichardHSerlin | November 13, 2009 10:58 PM | Report abuse

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