Assessing Senate reform proposals, Part 1
By Jonathan Bernstein
Let's go! I'll start with proposals by senators.
Evan Bayh's plan
- require affirmative written commitments to filibuster, including a "live" filibuster, from at least 35 senators
- only one filibuster per bill
- change the number needed to invoke cloture from 60 to 55.
I'll note right away that Bayh doesn't distinguish between filibusters on nominations and legislation.
Forget about the "live" filibuster; that's impractical, and mainly doesn't happen because the majority doesn't want it. Also, I don't think it's practical to allow a filibuster on a bill, but not on amendments. Since "amendments" in a body that has few restrictions that amendments must be germane can just be other, unrelated bills, it seems to me that the consequence of lowering the bar for amendments doesn't make sense. So, translated, the first proposal is really to eliminate filibusters that have no chance to block cloture. Is that a good idea? It's true that such delays do slow down the Senate. But it's also true that small and smallish minorities of senators cannot ultimately defeat a bill, and short-term defeatable filibusters are not a bad test of the intensity of both sides. I'm not really a fan of eliminating them. It would also either kill off individual holds altogether (because the force behind a hold is the power to engage in a time-eating solo or small group filibuster), or force senators who are interested in a hold for narrow reasons to enlist their party (or, less likely, a bipartisan group) to support them. My guess is it would do a bit of each. Again, I think the real problem in the Senate is partisan holds, not individual holds used to bargain for something, and so I think this proposal aims at the wrong problem. The second proposal boils down to eliminating the motion to proceed, a popular reform. Here's what filibuster expert Greg Koger says to that proposal:
The logic is that it is absurd to allow multiple filibusters against a given bill; one should be enough. More subtly, if a bill gets to the floor, senators may develop the expectation that it will pass and/or have a chance to amend it into a form that can garner 60+ votes, so if the motion to proceed is immune from obstruction, the Senate would be more likely to act on major bills without losing the benefits of requiring a supermajority to bring the bill to a final vote.
Nominations are already shielded from a filibuster at this stage. I think it's an okay proposal ... I don't, in fact, think that it's a terrible burden to have the second cloture vote, and there is some virtue in passing a test vote before (potentially) wasting time working on a bill that doesn't have the votes, but it's also true that an obstructionist minority can use each possibility for delay to run out the clock on a Congress as a whole. As for lowering the number for cloture, Bayh doesn't really offer any argument for why 55 is the magic number, and I remain ambivalent about what that number should be.
Michael Bennett's plan
The largest reform package is from first-term appointed Sen. Michael Bennett (D-Colo.), Wesleyan class of 1987, same as Joss Whedon and Matthew Weiner (says Jonathan Bernstein '85). Quoting here from his proposal:
- Eliminate anonymous holds.
- Require holds to be bipartisan. If not, the hold expires in two days. Even bipartisan holds expire in 30 days.
- Reform the filibuster in the Senate.
- After third failed cloture vote, the minority must find a member of the opposite party or the threshold raises to 45 votes.
- After the third cloture vote, if the majority finds support from three members of the minority, it raises to 45 votes.
- End the filibuster for motion to proceed.
- Require 41 senators to show up to vote in order to block cloture, or else it's invoked.
OK, lots to work with, although again no distinctions between bills and nominations. I don't think publicizing holds is really worth much. I covered the motion to proceed above, for Bayh's proposal. The rest basically says that if your attempts to delay are minimally bipartisan, they're okay; if not, not. I don't like this idea at all. It's not likely to affect the political parties equally (in fact, since Bennett's party is less ideologically cohesive, it's more likely over time to hurt the Democrats). There's a bit of a random factor; if there happens to be a Zell Miller or a Lincoln Chafee in the Senate, the rule will operate a lot differently than if no such senator happens to be around. And I'm not sure I like the underlying idea, anyway. Why is a filibuster that gains the support of (hypothetically) 44 Republicans less legitimate than one that gains the support of 30 of 44 Republicans and 11 of 56 Democrats?
The final provision is for cloture to change from a needed 60 votes to invoke to 41 votes to prevent. Essentially, this just changes the math a bit, but I like it -- part of why filibusters are legitimate, in my view, is because of the issue of intensity, so why not force the side that's supposed to be intense to be the ones who have to show up? More on this later, but I think it's a winner, albeit not a game-changing one.
Tom Harkin's plan
Harkin's proposal, which again treats bills and nominations the same way, would institute a sliding scale for invoking cloture: A first cloture vote would still take 60 votes, but the next one would take 57, and then 54, then 51, with two days intervening in each case. I've seen other similar proposals, with somewhat different vote numbers or time elements, but the basic idea is to make filibusters only able to delay, but not defeat, a measure that otherwise has the support of a majority of senators.
Greg Koger thinks that this one would backfire, with the minority party using it as an excuse to filibuster even more things, and the majority even less likely to waste floor time on relatively minor measures. I'm not sure he's right, but I guess I'm also not sure I see this as a winner. If senators believe that a simple majority is enough, why not just go ahead and eliminate the filibuster? And if not, it's not at all clear to me that the power to delay things a few days is much of a substitute. This one, to me, has the smell of a compromise for compromise's sake, and I suspect that in reality, there will never be a point at which senators want to pass this, but not filibuster elimination. However, I'm not really exactly against it. If the Senate does want, for example, to lower the threshold from 60 to some lower number and use this process to make it happen, I don't think it would do any harm.
So there are the proposals on the table from senators. Next up: academics and interested observers.
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