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How dual-tracking destroyed the Senate

Barry Friedman and Andrew Martin took to the New York Times yesterday to explain the key procedural change that turned the filibuster from a high-cost, final-stand maneuver to an everyday occurrence that was harder on the majority than the minority:

During the 1960s, the Senate was frozen by lengthy filibusters over civil rights legislation. When, in the mid-’70s, that tactic once again threatened to bring the Senate to a standstill, Robert Byrd, the West Virginia Democrat who was the majority whip, invented a dual-track system. This change in practice allowed the majority leader — with the unanimous consent of the Senate or the approval of the minority leader — to set aside whatever was being debated on the Senate floor and move immediately to another item on the agenda.

The result of tracking? No more marathon debate sessions that shut down the Senate. While one bill is being “filibustered,” business can continue on others.

Today a “filibuster” consists of merely telling the leadership that 41 senators won’t vote for a bill. Worse, any single senator can put a “hold” on anything, indefinitely, for any reason. Not only has it become easier to “filibuster,” but tracking means there are far fewer consequences when the minority party or even one willful member of Congress does so, because the Senate can carry on with other things.

Tracking allowed Republican Senator Richard Shelby of Alabama to stop 70 administration nominees while pursuing earmarks for his home state. It permitted the Senate to conduct other business, like confirming a circuit-court judge, during the recent hold by Jim Bunning, Republican of Kentucky, on the unemployment benefit extension. During the “filibuster” of the Senate health care bill, it cleared the way for months of other votes.

Because dual-tracking is a Senate practice, not a formal rule, the majority leader, Harry Reid, could end tracking at any time. By doing so, the Democrats would transform the filibuster and recover their opportunity to govern effectively.

On the other hand, this does presume that minorities in general and Republicans in particular will not shut down the Senate over every little thing. That may or may not be a safe bet, but it's hard for the majority, which labors under the responsibility of getting things done and keeping unemployment insurance running and confirming nominees and passing a budget and all the rest of it, to feel confident taking it.

By Ezra Klein  |  March 11, 2010; 5:25 PM ET
Categories:  Senate  
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"Because dual-tracking is a Senate practice, not a formal rule, the majority leader, Harry Reid, could end tracking at any time. By doing so, the Democrats would transform the filibuster and recover their opportunity to govern effectively."

those of us americans who elected the majority of democrats are watching to see if finally these same democrats will stop the filibuster and begin doing the work they were sent to do - represent the people, not the banks, not the corporate and not the lobbyists. yes, these may be the ones who fill their campaign coffers; but they still must have the votes of the people to take office!

Posted by: sbvpav | March 11, 2010 6:09 PM | Report abuse

Isn't this the same as the let them talk reform to the filibuster that you and others have told all of us is a bad idea? Am I missing something here?

Posted by: thescuspeaks | March 11, 2010 6:54 PM | Report abuse

Removing tracking would increase the political cost of maintaining a filibuster, but won't cause the return of attrition fights or make it easier to pass a bill, because with today's rules the burden is effectively on the majority to assemble 60 votes for cloture, not on the minority to affirmatively maintain a filibuster.

To put the rules back in order you need to go back to the framework where cloture is based on a percentage of those present instead of a percentage of the entire Senate. With that change, unless the minority keeps its entire caucus physically in the chamber it will eventually lose the filibuster fight, putting the burden on the proponents of the filibuster where it belongs.

Posted by: TCDrusus | March 11, 2010 9:13 PM | Report abuse

@Ezra: "hard for the majority, which labors under the responsibility of getting things done"

This is where you are wrong my young Jedi.

If you read President Washington's Farewell Address in which he warned of the "baneful effects of the spirit of party," why the heck do you presume that Congress should be organized along the lines of party politics? [See, e.g., Indiana Senator Evan Bayh's comments on the caucus system on this past week's CBS Face The Nation (see below).]

SENATOR EVAN BAYH (D-Indiana): Well, first, Lindsey Graham is my friend and we need more friendships across the aisle because that's ultimately how you get principled compromise enacted. And part of this, Bob, was informed by my father's experience where back in the day he might have philosophical or political differences but you still reach out and try to do the people's business. So little of that takes place because there's so little action -- interaction among senators. We have the caucus systems. So the Democrats are over here. The Republicans are over here. They hardly ever meet to listen to one another.

* * *

SENATOR EVAN BAYH: It's almost tribal, Bob. And I think Lindsey is right most. Americans probably listen to this and go, well, that's so basic it's silly. But the caucus system really is used as an instrument of control, party control. The information that's provided very often is designed to lead to a particular result. You spend a lot of time talking about. Well, my first day in the Senate, literally, my first day, first caucus meeting, we were already talking about the next election.

(Bob Schieffer laughing)

SENATOR EVAN BAYH: It never stops. And so if -- if things political are constantly at the forefront of your thinking, it's -- it's difficult to make the kind of policy progress that you need.

Posted by: msa_intp | March 12, 2010 12:22 AM | Report abuse

Tracking causes Senate leadership to make tough decisions on their legislative priorities and use the appropriate steps to resolve holds and filibusters. It's actually not a bad system. Only when there is an overloaded agenda or unpopular bills does it becomes difficult. The problem is when Senate leadership does not have the resolve the push forward on or adjust their agenda, perhaps even delaying matters of lower priority or not picking up some House bills.

Posted by: cprferry | March 12, 2010 8:10 AM | Report abuse

Always good to see concerns about the filibuster being raised when the Democrats are in the majority but can't quite get the job done. I assume this wasn't a concern when Democrats used the tactic in the past.

Posted by: jkilmer | March 12, 2010 10:07 AM | Report abuse

The News from 1930 blog reports on an editorial in the Wall Street Journal bemoaning the Senate's loss of virility. Why? Because of the one man filibuster.

See today's post at

Posted by: bharshaw | March 12, 2010 10:50 AM | Report abuse

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