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Wrapping up Senate reform with Superbill

By Jonathan Bernstein

First of all, a major thank you to Ezra Klein. I hope his readers didn't mind having someone a little less policy-wonkish than what they're used to in this space ... at any rate, thanks very much to Ezra.

Now, back to reform in the Senate. Before getting into the ideas that I like and the introduction of my own reform -- Superbill! -- a quick tour of the prospects for reform. Long-term, I think the current situation is unsustainable. At some point, the balance of the advantages of individual influence vs. the costs of obstruction is going to tilt too far, and the majority will impose reforms of some sort, either mild ones through negotiation or dramatic reforms by simple majority. And, yes, it's supposed to take 67 votes to change the rules, but in the last resort the majority can rule, and there's not a whole lot the minority can really do about it ... the biggest weapon they have against that sort of majority tyranny is full use of every loophole in the rules to delay things, and they're getting closer and closer to that without the provocation of a majority-imposed reform. Indeed, what is likely to happen is exactly what happened when cloture dropped from 67 to 60; the majority threatened to impose drastic change by simple majority vote, and the minority bargained for less severe reform. That said, it's only really likely to happen in situations of unified government (president's party with majorities in the House and Senate), and unified government with a healthy (but sub-60) Senate majority, at that. Such a situation could happen next year, if the Democrats only lose two or three seats ... or it might not happen for over a decade.

So reform is going to come, in some form. What should it look like? Will it include a brand-new Superbill?

Here's what I liked so far:

1) Protect appropriations bills (but in turn protect them from nongermane amendments). Note that this isn't necessarily a great deal for the majority, because "must-pass" appropriations bills are used to pass all sorts of things; DADT repeal right now is on an appropriations bill, which is therefore being filibustered. Pass this reform, and odds are that appropriations bills would be processed in a more timely way, but the majority would otherwise find it harder to function.

2) Shift all cloture votes from requiring 60 votes to impose cloture to requiring 41 votes to block it.

3) Reduce post-cloture debate time somewhat (various people have recommendations; I like the idea, but don't have one particular proposal in mind that I support).

What else? (Yes, we're getting close to you-know-what).

1) I believe there is more that the majority can do to limit holds within current rules (and without violating norms). I would especially like to see holds severely restricted for judicial nominations. Individual and small-group holds are valuable because they give small minorities bargaining power, but there's not much to bargain about with judges ... of course, holds are sometimes used to bargain for something unrelated, but eliminating them on judges still leaves them in place for executive branch nominations.

2) I'd retain holds on executive branch nominations, but eliminate filibusters on them by reducing cloture to 51. This would still allow individual senators to temporarily block these nominations, but make it easier (along with reduced post-cloture time) for the majority to override the hold. The limitation I'd be most open to here would be a strict numbers game, two or three or four holds per senator. The key (and I'm not sure what rules changes are needed to make it happen) is to allow for senators to retain their rights as individual senators without empowering the minority party to leave the executive branch half empty.

3) Superbill!

I love reconciliation. One bill a year gets protected. That seems about right; it captures both the notions of intensity (since the majority can choose to include those items it cares about most) and tyranny (because the minority will lose on that bill, but still has a chance to defeat other bills by using the filibuster). The only problem is that it yields results that are ... I think the technical term is "goofy." See this column from Ezra, who pleads for simplification. It makes sense that use of a special protected bill would be based on the priorities -- the intensity -- of the majority, but it makes no sense at all that use of a special protected bill is based on whether or not the various provisions of the bill have a budgetary impact. My first impulse was just to repeal the Byrd rule and let reconciliation be used for anything, but I think a better plan would reduce reconciliation back to what it was originally meant to be, a purely budgetary provision (surely someone could figure out how to write the proper language to make that happen).

Instead, replace reconciliation with a free bill: one bill a year with a time certain for consideration. That's right, Superbill! One bill that can't be filibustered. What could the majority stick in it? Whatever they wanted! It could, if they have the votes, contain the entire legislative agenda. But the bill would be subject to amendments (limited only to prevent an infinite filibuster-by-amendment), meaning that the minority would have some tools available to sink it (sauce for the goose ... the amendments would need just a simple majority, too). Superbill would have to pass the House, too, so that's another constraint. I don't think the House would need to be involved in creating it ... from the House's point of view, it's just a bill (and it might well include multiple bills that passed the House separately). Of course, there would be significant coordination problems, but that's just another constraint.

Is one filibuster-free bill, one a year, too much to ask for? I don't think so. A 51-seat majority isn't going to be able to use it for too much; a 58-seat majority could include far more, and that sounds about right to me (and the majority in the House would also factor in, with slim majorities limiting what can be included). When the negotiations begin in earnest over the majority's threat to eliminate all filibusters at the beginning of a new Congress, whether it happens in 2011 or 2013 or 2021, Superbill -- along with the other proposals suggested here, especially reducing holds on judicial nominations and filibusters on executive branch nominations -- seems to me like a fairly reasonable compromise. It isn't a majoritarian solution to the filibuster problem. Instead, it's a Madisonian solution -- allowing democracy to function, in which democracy is a lot more than simple majority rule. Superbill!

-- Jonathan Bernstein blogs about American politics, political institutions and democracy at A Plain Blog About Politics, and you can follow him on Twitter here.

By Washington Post Editors  |  June 2, 2010; 7:05 PM ET
Categories:  Congress , Senate  
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