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The other problem with the filibuster

We tend to think of the filibuster mainly in terms of the problems it causes when the minority has more than 40 votes. But as reader BC e-mails, it's also a problem when the minority has less than 40 votes and the filibuster can be easily broken:

Thanks for pointing out something that's bugged me over the last few months about debate on the filibuster - namely, that there are two - not one - issues contained in Rule XXII: (1) the 30 hour rule; and (2) the 3/5 rule.

It is the 30-hour rule (plus the two-day "hold" on cloture motions) that gives 2/5 or less of the Senate - or even a single Senator - the power to block legislation even when the majority has the 60 votes it needs to end debate. People keep talking about the "hold" as if it has magical properties. But it doesn't. What it is to force the scheduling of meaningless "debate" time - i.e., debate that has to be scheduled even when 60 Senators are willing to end debate.

It's one thing, on, say, the occasional "major" bill, to have to schedule a "meaningless" 30 hours of debate. It's quite another to have to schedule that 30 hours of meaningless debate on a pile of nominations (e.g., Senator Shelby's recent effort to put a hold on 70 nominations) or on bill after bill that has 60, 70 or 99 votes in its favor.

Even if the Senate continues to be wedded to the 3/5 rule, it could still eliminate this other rule which gives 2/5 of the Senate, or a single Senator, undeserved power.

More on this subject here.

By Ezra Klein  |  March 1, 2010; 10:11 AM ET
Categories:  Senate  
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Like it or not we need the fillibuster.

If we don't have it the next time the Republicans take over the Senate we will find ourselves living in the, "United States of Reagan."

Posted by: nisleib | March 1, 2010 10:26 AM | Report abuse

Unanimous consent is generally given to suspend the 30-hour rule -- such consent was given more than 100 times last year alone.

The Constitution itself provides a solution to address a relatively small yet intractable minority: if a small minority (1/3 or less) holds up the works too much, the intractable members can simply be expelled by a vote of the remaining 2/3rds.

So, if unanimous consent is routinely withheld and it becomes a problem to enough Senators, there is a remedy. No change to the rules is necessary.

Posted by: rmgregory | March 1, 2010 10:44 AM | Report abuse

Another reform that might make sense would be to change the requirement of cloture from "three-fifths of the Senators duly chosen and sworn" to "three-fifths of the Senators duly sworn and present." Prior to the 1975 rule changes, cloture required a 2/3 vote, but not 2/3 of the entire membership currently sworn in. Rather, it only required 2/3 of the members present. This substantially changes the dynamic: prior to 1975, the onus was on the filibustering side to maximize their presence for the vote. Now, since every non-present vote counts against cloture, the onus is on the side trying to break the filibuster to ensure that it has ensured all its votes are present.

The 1975 rule changes made it easier to get cloture on the one hand, but made it much easier to mount a filibuster.

Posted by: batemand | March 1, 2010 10:46 AM | Report abuse

batemand, that's a really good point that I hadn't considered before. I'm going to steal that idea in the future and totally not give you credit. Sorry.

nisleib, there are tons of choke points in our system that stop landslides of legislation from getting passed. For starters, you'd have to have majorities in both houses of Congress and the Presidency, which is tough to do. Then you've got to get legislation through committees in both houses, which ate of most of a year for HCR (yes, I know there were particular reasons for that). Then you've got to have debate and a floor vote in both houses, reconcile the bills, and get the President to sign them. And that all ignores the possibility that the legislation will be so unpopular that there's public outrage which stops the legislation or that the legislation is overturned by the courts.

Majorities should be reasonably able to pass legislation. It shouldn't be easy, but it should be doable without resorting to arcane legislative rules. If we put a maximum cap on debate time, or progressively reduced the amount of votes necessary to end a filibuster (and hey, I had this great idea to make the votes based on those who are present, not the whole body!) as debate continued we would protect the minority's right to state their objections to legislation while letting the majority vote to enact it. And if that minority party becomes the majority down the road they can make the changes they deem necessary as well.

Posted by: MosBen | March 1, 2010 11:01 AM | Report abuse

I like what others have said re: possible fixes to this tangled up mess.

I still think the majority should actually allow the filibuster to proceed (call Rs on their bluff) rather than scurry around trying to avoid the dread filibuster by any means possible.

Just do it ... do it every time the Rs call a filibuster. But (and this is a big but), all Rs must be present throughout the entire filibuster period. (Don't know what the exact rules are re: attendance).

I say let's test the process, the resolve of the minority, and the patience of the public.

I have a feeling it wouldn't take too many filibusters before the blowback would have to be reckoned with.

Posted by: onewing1 | March 1, 2010 1:23 PM | Report abuse

If a filibuster is called, then all senators should be required to be present in the Senate chamber and forced to discuss face to face whatever it is that the minority party need discussing. Filibusters should be used judiciously. I was entirely disappointed in the system after visiting the Senate over Christmas and seeing that the delay in the health care vote seemed to be so they could all take turns talking to the CSPAN camera. They weren't figuring out problems or trying to come to an agreement, they were just busy being on television - talking to an audience that isn't there.

Posted by: Ivanna1 | March 1, 2010 3:55 PM | Report abuse

This 30 hours of debate rule is really less of a problem than you describe. It does not require actual debate. It simply requires that the Senate be in session 30 hours during which Senate considers the matter on which a cloture petition was filed. So, the majority leader could keep the Senate in session 24/7 to burn through the time as quickly as possible.

This would seem like a victory for the minority because it would force all those freshman senators in the majority to pull double and triple shifts while the clock runs. But the majority is not without options. They could start randomly requesting unanimous consent for measures the minority opposes. This means that a member of the minority would have to be on the Senate floor at all times to object to these (or any other) requests. I think you would quickly see support for any given Senator's holds erode quickly, even within his or her own caucus/conference. Nobody wants to stand watch night after night for another member's petty obstructionism. The Senate floor is a lonely place at 3:30 am.

Posted by: dollarwatcher | March 1, 2010 5:40 PM | Report abuse

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