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Posted at 10:59 AM ET, 12/14/2010

A single shot at Senate reform

By Ezra Klein


"Last week, the U.S. Senate failed for the first time in 48 years to pass an annual bill authorizing money for national defense," reports Philip Rucker and David Fahrenthold. But that's not all: Judicial nominations are stopped up. Congress hasn't passed an actual budget for next year. The filibuster is ubiquitous in a way that's not been true at any other point in American history. Rucker and Fahrenthold describe the Senate's problems piquantly: "An institution designed to chew over legislation slowly, refining and moderating bills passed by the House, now routinely chokes on them."

Yesterday, I argued that government is worst where it's not regularly pruned. The tax code is one example, and so is the regulatory state. But perhaps the best example is the Senate's rulebook, which is rarely reformed, and so increasingly misused.

Sen. Tom Udall has a plan to change that. And not just once. Where some senators are arguing for a specific reform to the filibuster, or a new rule on judicial nominations, Udall is arguing for a routine and predictable process whereby the majority will review the rules every two years and be able to change them by a majority vote. He calls it "the Constitutional Option," after the line in the Constitution guaranteeing that "Each House [of Congress] may determine the Rules of its Proceedings."

Udall argues that the Senate's resistance to revising its rulebook has signaled that there'll be no consequences for distorting and misusing the rules. The filibuster, for instance, has gone from a rarely invoked failsafe to a constant. As Rucker and Fahrenthold note, "during Johnson's three terms as majority leader, from 1955 to 1961, there was only one time when a vote was called to break a filibuster. In the past two years, there have been 84."

Udall doesn't want to tie the Constitutional Option to one or another reform. The point is the process, not the policy. He believes that the certainty of reforms will force restraint from the minority, lest the majority change the rules on them, and restraint from the majority, who realizes that the minority might win the next election and exact revenge. This sort of dynamic accountability, he says, is far preferable to a stagnant rulebook where sentences that meant one thing during one period in which certain norms governed the behavior of both parties are being exploited by parliamentary Machiavellians for entirely different purposes in another period with different norms and far more polarization.

For a longer introduction to the Constitutional Option, download this primer. The bottom line, however, is that Democrats are going to have to make a decision on this soon: The Constitutional Option can only be used on the first day of a new Congress. So they've got until early January to decide whether it's time to use it.

By Ezra Klein  | December 14, 2010; 10:59 AM ET
Categories:  Senate  
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Simplest fix - Require 40 votes to sustain rather than 60 votes to break a filibuster. If people want to block legislation, fine. But make them sign onto it and explain why.

Posted by: willows1 | December 14, 2010 11:06 AM | Report abuse

I think Udall's proposal sounds like a great idea, and willows1's specific proposal for filibuster reform is good as well, though I think that the number of votes required to maintain a filibuster should increase over time until eventually the cloture motion requires a simple majority.

And seriously, after the last two years the Dems have to understand that *something* is necessary. I'm inclined to support procedurally "fair" reforms that try to avoid the appearance of a power grab, so I like Udall's proposal, but the Senate just can't function as it is anymore.

Posted by: MosBen | December 14, 2010 11:19 AM | Report abuse


Unfortunately the democrats have been among the biggest SUPPORTERS of filibusters. If they try to change the rules, the cold dead hand of Robert Byrd will rise up from the grave to strike them down (or smote them, if you're in a Biblical mood)

Posted by: 54465446 | December 14, 2010 11:31 AM | Report abuse

Since health care reform has been the raison d’etre and now its been passed into law....I'm totally opposed to any rule changes in the Senate. Maybe I'll feel differently in 2030 or so.

Posted by: zeppelin003 | December 14, 2010 11:38 AM | Report abuse

As Bill Frist pointed out a few years back, the Constitutional option is available whenever a majority of Senators wants it to be.

Posted by: redwards95 | December 14, 2010 11:42 AM | Report abuse

54465446 -
But this is why making someone express why they don't like a piece of legislation is so important. Wanna hold up defense spending because of DADT repeal? That's okay with me, but you need to crawl out from under your rock and say "I'm not comfortable with having gay troops serve openly." For Tom Coburn or Sam Brownback, that's not a consideration. But for Scott Brown or Olympia Snowe, there would probably be consequences. Want to filibuster HCR? That's okay too, but come out and express what parts of it you don't like. Again, for Jon Kyl or Mike Crapo it makes no difference. But for Charles Grassley or John Ensign, they have to come up with something a little more nuanced than "Death Panels!" (c).

When Democrats were in the minority, I think having them express their displeasure with the Bush tax cuts or Sam Alito's nomination would have been desirable. It may have even helped make their point more clearly.

Either way, making people express their problems with legislation rather than just hiding behind a few very safe Senators can only be good.

Posted by: willows1 | December 14, 2010 11:44 AM | Report abuse

The filibuster is a reasonable tool that has been abused as EK describes. Though, also according to EK, apparently its abuse is directly related to Harry Reid's unwillingness to actually force the opposition to carry out a filibuster.
Much like Udall's 'dynamic accountability', if the GOP was forced to stop up the Senate literally and not just figuratively, the public would see this and start pressuring them to stop. Or if the opposition was right on the merits, force the majority to relent. That's dynamic accountability right there, but Reid hasn't allowed it since he just caves in to the threat of a filibuster.
The BIGGER issue is the anonymous holds. How does a single Senator get to completely stop a bill with no vote, no accountability, no record of it? That sounds to me like it is blatantly unconstitutional.

Posted by: rpixley220 | December 14, 2010 11:46 AM | Report abuse

Those bozos in Washington are doing too much anyway. It's great to have a filibuster to slow that BS down.

Posted by: krazen1211 | December 14, 2010 12:06 PM | Report abuse

Love the concept. Rules that keep the process dynamic make good sense. Dems should commit to it for the good of the country.

And, the administration should commit to introducing something like it every session they are in power (2012 and past) regardless of who controls the senate at that time. (VP still needs to introduce it right?).

Posted by: BHeffernan1 | December 14, 2010 12:15 PM | Report abuse


Your logic is impeccable, what I was arguing was the idea that Dems would somehow be more amenable than Reps to this. In my opinion, it's a Senator problem, not a party problem.

Posted by: 54465446 | December 14, 2010 1:13 PM | Report abuse

The Senate cannot even pass a tax code that doesn't need periodic exstension (from WSJ - I wonder how much of this comes from the filibuster):


Posted by: chrisgaun | December 14, 2010 1:19 PM | Report abuse

I am with Willows1 on this.
As a Dem (and more generally as an American), I've been frustrated at 2 yrs of stagnation in the Senate, but getting rid of the filibuster altogether could spell disaster if Republicans retake the Senate in 2012 election (quite possible).
However, by making the filibuster proactive (ie requiring 40 votes opposing cloture), you retain the power of the minority but make them accountable for their positions. It is the first, best fix, along with doing away with the individual hold that Senators abuse so frequently these days...

Posted by: samtricketts | December 14, 2010 1:24 PM | Report abuse

Bad long-term strategy for the Democrats. They are too late on fixing the filibuster. If they do this now, then the advantage will be with the Republicans in 2012 when they will probably control the Senate as well as the House, and possibly the White House also, and will then be able to dismember Medicare and Social Securty with 51 votes.

Posted by: Poster3 | December 14, 2010 2:10 PM | Report abuse

Look for the U.S. Congress to go a similar route as the California legislature. Nothing will get done when Democrats are in power, as Republicans will attempt to block everything. The only solution will be to lower vote requirements to simple majorities.

At the federal level, while the Democrats will be unable to do anything without a super majority, the majority Republicans will be able to "get things done" when the gutless Democrats bend over backwards to make sure Republicans will never need more than a simple majority.

And of course, in California, the legislature is picking away at super majority vote requirements. At the federal level, however, Democrats want to ensure that Republicans remain in power even when they are outside of the majority. So that won't happen any time soon in the DC cesspool.

Posted by: hopeadoped | December 14, 2010 2:20 PM | Report abuse

My prediction:

The Democrats will not successfully make any meaningful changes to the rules--thanks Ben Nelson and Joe Libermann. If the Republicans assume a majority in 2012, they will immediately disappear the filibuster.

Posted by: ncaofnw | December 14, 2010 5:49 PM | Report abuse

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