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Mending the filibuster without ending it


Ruth Marcus has an excellent action plan for reforming the filibuster. Read it. I'd just echo one of the implicit points of her column and say that there are a lot of steps between here and elimination of the filibuster that would make the Senate work a lot better. Ruth gets at most of the ones I'd name, including fast-tracking filibuster votes so they no longer take three days, ending the filibuster on executive branch appointees, and allowing a filibuster only on the motion to vote on a bill.

This gets to the fact that the filibuster works through two mechanisms, one that many people understand and another that few people understand. The one lots of people understand is that it requires a supermajority vote to pass legislation. That's difficult in a polarized political environment, and so legislating is harder. The more arcane effect of the filibuster is to raise the time-cost of voting on something. When you file to hold a vote on breaking a filibuster, you need to allow two days before the vote and then 30-hours of post-vote debate. So that one vote takes about three days. And because a filibuster can be mounted against the motion to move to a bill, the motion to debate a bill, the motion to vote on a bill, and every amendment, it takes at least a week to break a committed filibuster even when the majority has more than 60 votes.

On something big like health-care reform, that doesn't much matter because everyone is willing to spend a week taking the vote. On something like the nomination for the undersecretary of the Treasury for international affairs, it's decisive because no one is willing to spend the time to break that filibuster. That means that the filibuster isn't protecting a 41-vote minority. It's protecting a minority as small as one vote, because you only need one senator to credibly promise to use the rules surrounding the filibuster to waste an enormous amount of the Senate's time.

A good example of this was, well, the undersecretary of the Treasury for international affairs. The nominee, Lael Brainard (pictured), was held up for over a year by senators promising to gum up the works if her nomination moved. Earlier in the week, she was confirmed, with 78 senators voting in her favor. So the result of the filibuster's rules was that the country didn't have an undersecretary for international affairs during one of the most turbulent economic moments in history, even though 78 senators thought the nominee was a good choice!

Photo credit: Trade, Aid, and Security Coalition.

By Ezra Klein  |  April 21, 2010; 12:09 PM ET
Categories:  Senate  
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It's a good point -- even if 99 Senators support a nominee or piece of legislation, one Senator can force the filing of cloture motions causing the Senate to waste a week of its time on that single vote. At that point, the Senate leadership needs to decide whether its worth losing an entire week just to fill some vacancy or pass some modest legislation. Usually, the answer is no. And as a result, hundreds of bills and nominations that have well OVER 60 votes of support never get voted on because there isn't nearly the time to break the filibusters. I'm sure Democrats did this as well, and that was wrong too (although the stats on nominations and cloture motions show it's gotten far worse recently). It just seems broken to me.

Posted by: vvf2 | April 21, 2010 12:25 PM | Report abuse

I just want to point out that the republicans that complain that government costs too much and can't do anything are the ones that are actively making it cost more and throwing sand in the gears. What do senators say when they support a filibuster of a nominee and then vote for that nominee? Shouldn't this be a big red flag marking hypocrisy on that senator's part? Where is the MSM pointing out these flip flops? Crickets...

Posted by: srw3 | April 21, 2010 12:40 PM | Report abuse

I don't get Marcus' unwillingness to even describe the procedure by which the filibuster has historically been modified: by simple majority votes at the beginning of a new Congress. The opportunity to do that would come up with January, 2011, and the willingness of the Democrats (assuming they retain enough seats to have a majority for fixing the filibuster and assuming opposition from Byrd, Nelson (NE), and Lieberman). I suppose it would cause and uproar, but what doesn't? Moreover, what's almost always happened in the past (both in the 1910's when the cloture rule was first put in place and in the 1970's) is that the credible threat of a rule change by simple majority has been sufficient to garner the 67 votes needed for a rule change under the previous Congress' rules.

Posted by: rwclayton7 | April 21, 2010 12:42 PM | Report abuse

"credibly promise to use the rules surrounding the filibuster"

the self-proclaimed greatest home of public debate the planet has ever known is rendered powerless by the threat of debate

the filibuster makes no sense, has never made any sense, and is perpetuated by both political parties to the detriment of the nation

i think senators believe the filibuster makes the senate more powerful than the house of representatives

Posted by: jamesoneill | April 21, 2010 12:49 PM | Report abuse

Mend, don't end is a compromise that should be brought up after the new Senate stops continuing rules from congress to congress. By not agreeing to implement rules from the previous Senate - the filibuster (which is an anomaly of history - not a constitutional check) would cease to exist. Then the new congress could enact a rule allowing for a limited filibuster as stated. It will cause an uproar - but so what? The GOP has no intention of ever working with the Democrats. you aren't losing anything if you are the Dems. Plus - it is likely Reed loses his seat and Durbin or Schumer become majority leader and they may be more amenable to end the continuing rules in the Senate. The GOP will howl until they become the majority party. Either way - the filibuster needs to be jettisoned to the trash heap of history.

Posted by: ejhansen71 | April 21, 2010 12:54 PM | Report abuse

There is going to be a GOP outcry regardless of what changes to the cloture rules the Dems try next January. Therefore there's no reason not to just change them to the only thing that actually makes sense: majority rule. Now if the Dems can't get 50 of their own votes for that thanks to Lieberman and friends then sure you can compromise with something less than ordinary democracy. But there's no reason to pre-compromise at this point.

Posted by: redwards95 | April 21, 2010 1:07 PM | Report abuse

What I don't get is why, every single day, Harry Reid doesn't cut a press conference short by saying "Well, I'd love to answer questions for you, but I have to go waste 27 hours' of the Senate's time to end the hostage situation Republicans have created around confirming the UnderSecretary of Treasury. It seems they've decided there's huge political gain in abusing the Senate's rules, their colleagues and decent public servants. Since reason and appeals to decency have failed, this week, I'll try bribing them with Tootsie Rolls."

And, you know, repeat this every week.

Nobody has a clue this is happening.

Posted by: theorajones1 | April 21, 2010 1:23 PM | Report abuse

I think that it works for both parties when I think of the U.N. Ambassador posting that we stopped and having him serve as a recess qualified him as a nutter with an asterisk. Yes, the public is frustrated by Congress, by Congress (repugs) will push until the voters push back and Daddy takes the T Bird away.

Posted by: Geopolitics101 | April 21, 2010 2:40 PM | Report abuse

Maybe if the Federal Government wasn't trying to do 10,000 things that they are not supposed to do, they can focus on what their jobs really are.

Posted by: gjconely | April 21, 2010 2:56 PM | Report abuse

The Senate filibuster is the only way to keep some level of sanity in the Congress when one party controls both houses and the White House. That applies to the current situation and when the Republicans were in control. We need a way to block legislation that the majority of the country finds offensive or bad! Healthcare is a good example!



Posted by: my4653 | April 21, 2010 3:12 PM | Report abuse

Maybe the reason Obama keeps having trouble getting his various cabinet nominees confirmed is that fact that he keeps throwing out radical left wingers. If he nominated more moderate canidates he'd probably have a full cabinet by now. But Obama wants to drag the country kicking and screaming to the radical left and his executive nominees are just one leg of the stool.

Posted by: RobT1 | April 21, 2010 3:14 PM | Report abuse

Ezra: do I understand correctly that a Senatorial 'hold' on a bill or nomination is nothing more than an expression of willingness to gum up the works by forcing the Senate to spend the time required to break that Senator's filibuster(s)?

If so, 'fast-tracking' the filibuster, per Marcus' suggestion, would have the added positive effect of gutting the power of the 'hold.'

Posted by: rt42 | April 21, 2010 3:22 PM | Report abuse

How sweet the sound.

A frustrated majority upset at the fillibuster. Does the phrase "nuclear option" ring a bell? it certainly should.

Those that are unhappy with the time it takes to get a nominee approved should cry themselves a river in the general direction of Ted Kennedy's grave.

Nothing changed the landscape like his unfounded smear of Bork.

He sowed, the Democrats reap.

Posted by: skipsailing28 | April 21, 2010 3:32 PM | Report abuse

skipsailing sez: "A frustrated majority upset at the fillibuster. Does the phrase "nuclear option" ring a bell? it certainly should."

Howzat? Marcus is proposing that (a) Executive Branch appointments should be immune to being filibustered, (b) no filibustering of the motion to proceed, and (c) a reduction of the time cost of failed filibusters.

None of these would change how judicial nominations were treated, and Marcus' argument that the filibuster should be preserved for judicial nominations is a sound one.

If you're claiming hypocrisy, you're on thin ice.

Posted by: rt42 | April 21, 2010 3:55 PM | Report abuse

The claim of "hypocrisy" is greatly overrated. The left uses it almost as much as they use the slur "Racist".

And you've missed the point. The Democrats, lead by their lion, made the nomination process a battle ground. The fillibuster is just one very effective weapon in that battle. Denying a president his perogatives became one of the objectives of the minority party senators.

When bush was in the oval office, republicans called the Democrats the party of no. It is just the way things are now.

If I was unclear, accept my apologies.

Posted by: skipsailing28 | April 21, 2010 3:59 PM | Report abuse

@ skipsailing28 : I don't recall democrats voting to filibuster a person or bill and then turning around and voting FOR that person or bill. It could have happened but I don't recall it happening. That is obstruction for obstruction's sake, not actually objecting to the underlying legislation or person. Lael Brainard got 78 votes so a bunch of senators voted to keep her nomination from being acted on and then turned around and voted for her. That takes hypocrisy to a new level.

Posted by: srw3 | April 21, 2010 6:08 PM | Report abuse

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