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Posted at 12:57 PM ET, 01/ 5/2011

Senate Democrats unveil filibuster reforms

By Ezra Klein

Sens. Tom Harkin, Tom Udall and Jeff Merkley have released their package of proposed reforms to the Senate rules. But before we get into what might change, let's say what won't change: The 60-vote requirement to break a filibuster won't change. The right to unlimited debate, to speak until your knees buckle and your voice gives out, won't change. In reality, the rights of the minority won't change at all. In some ways, they'll even be increased.

Here's how the filibuster would change: Motions to proceed can't be filibustered because to do so is filibustering the debate itself. Filibusters themselves have to feature continuous debate and discussion. After a filibuster against a nomination is broken, there will be only two hours of post-cloture debate, as opposed to 30 hours, because nominations don't have amendments that need to be debated.

And there are changes to the Senate rules more broadly, too. Holds can no longer be secret, and the minority gets the right to offer at least three germane amendments on every bill (which addresses the Republican complaint that they are often denied the opportunity to offer amendments).

That's it. What's notable about this reform package is its restraint. Compare it to Sen. Bill Frist's effort to end the filibuster against judicial nominees. That would have immediately resulted in a slew of Republican judges being named to lifelong terms on various courts. If these changes are enacted ... nothing happens. There's no bill that's currently bottled up but will suddenly be viable after these reforms finish. They would take place with a Republican House, and even if they didn't, they wouldn't change the relevant impediment to the passage of legislation, which is that cloture is set at three-fifths of the Senate.

For better or for worse, this isn't a power grab. It's a protest. It's Democrats saying that something is wrong with how the filibuster has been used in recent years but stopping well short of weakening the filibuster itself. The Senate we would see if these rules passed would be quite similar to the Senate we see today. The differences would be that senators who place a hold would have to admit that they'd placed a hold, the minority party would have more opportunity to offer amendments and, if the majority party chose to keep a bill on the floor despite a filibuster, the filibuster would require more floor debate.

Plenty of people will fight for this as if the Senate depended on it, and plenty of others will battle it as if democracy itself were at stake. But the reality is undoubtedly more modest. This will make the Senate work a little bit more smoothly, and a little bit more like Americans think it works, with filibusters requiring debate, holds requiring names and minorities being guaranteed opportunities to amend legislation. It's a good package. But if you believe that the body's slow transformation into an institution requiring supermajorities to agree on every piece of business is the problem, this doesn't solve it. The best you can say for it on that measure is that it puts everyone on notice that if the filibuster continues being overused, a future Senate could, if they wanted, eliminate or more substantially reform it.

By Ezra Klein  | January 5, 2011; 12:57 PM ET
Categories:  Senate  
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Comments

"body's slow transformation into an institution requiring supermajorities to agree on every piece of business"

this "slow transformation" was completed in about 1793, right? since then, the number of votes required to break filibuster have gone down, not up (from 100 to 67 to 60).

Posted by: eggnogfool | January 5, 2011 1:39 PM | Report abuse

Liberals:


Repeat after me


Speaker John Boehner


Speaker John Boehner


Speaker John Boehner


Speaker John Boehner


Speaker John Boehner


Speaker John Boehner


Speaker John Boehner

Thank you. No more jamming through the liberal agenda against the will of the American People


.

Posted by: RainForestRising | January 5, 2011 1:44 PM | Report abuse

Boner will be fired within a year, like so many other incompetent GOP speakers we've seen.


Posted by: lauren2010 | January 5, 2011 1:52 PM | Report abuse

This looks fair. I'd leave off the Talking Filibuster changes for now and see how the other ones work out in practice before changing that.

Posted by: jnc4p | January 5, 2011 2:01 PM | Report abuse

hmmm. looking at the actual language over at TPM. I was wondering why they dropped the requirements that 10 senators sign a petition to block cloture, and that at least 5 objecting senators be present on the first day of debate, then 10 on the second day, then 20 for each day after.

and then I read this:
"During a period of continuous debate, if a Senator seeks recognition to speak, that Senator shall be recognized and the Presiding Officer shall not entertain any motion or quorum calls. If during a period of continuous debate, no Senator seeks recognition, then the Presiding Officer shall note that the period of continuous debate has ended, and cloture shall be considered invoked."
http://www.talkingpointsmemo.com/documents/2011/01/proposed-filibuster-reforms.php?page=3

Doesn't this mean that the onus is entirely on the filibustering senators, and that the majority need not have any members on the floor to maintain a quorum? Or will quorum calls still be allowed, after another senator seeks recognition but before he is allowed to speak?

If there will no longer be any quorum calls during continuous debate, it seems to me that that significantly increases the pressure on the filibustering members. Breaking a filibuster will no longer be reliant solely on persuading a member or members to drop their objections, either through public shaming or private enticements; it will now be possible to wait them out, until they screw up or give in. AT least on the most important legislation.

I haven't been able to make sense of why you're so sanguine about the Udall-Merkley proposals Ezra. Do you think if these measures succeed, that the Republican minority will still choose to oppose cloture 130 times in a session? (Not this one, given the divided congress, but in the future?)

Posted by: andrewlong | January 5, 2011 2:06 PM | Report abuse

andrewlong, that's how I read it: no quorum calls during continuous debate, and when there's nobody left that wishes to speak, the debate is over and cloture is achieved. I wish that it moved the onus on the filibustering Senators to constantly have 40 members on the floor during debate, but this is better than nothing, I guess.

Posted by: MosBen | January 5, 2011 2:16 PM | Report abuse

eggnogfool: The size of the supermajority is entirely separate from how often it is required. Yes, the minority *could* have blocked everything under the rules, but they didn't, because they accepted that the purpose of the filibuster was extended debate, not intransigence. However many votes were required at various points after the filibuster was instituted, the fact is that until the recent Republican Senate minorities, it was not used as a routine matter, blocking even uncontroversial actions that received unanimous or near-unanimous approval once they actually came up for a vote.

News commentators now say "of course, everything requires 60 votes to pass the Senate" as if there's nothing unusual about it, never mentioning the word "filibuster." If anyone had said that in decades past, the reaction from any knowledgeable person would have been "what are you talking about?"

Posted by: jimeh | January 5, 2011 2:22 PM | Report abuse

As I'd hoped the first motion up was a Republican motion and it was readily at hand.

The next motion up was a Democrat motion and it appears to have been lost.

I LOVE THIS HOUSE!!!!

Posted by: muawiyah | January 5, 2011 2:37 PM | Report abuse

@Jimeh:
"Yes, the minority *could* have blocked everything under the rules, but they didn't, because they accepted that the purpose of the filibuster was extended debate, not intransigence."

Evidence? When did controversial legislation ever pass with less than 60 Senate votes (barring reconciliation-based legislation)?

People seem to have this idea that there used to be a time when the Senate was churning through legislation with 54-45 majorities, and I'm just not clear on what year they think this happened.

Posted by: eggnogfool | January 5, 2011 2:45 PM | Report abuse

A reasonable set of filibuster rules. The senate should also require all tax and spending bills originating in the House be scored by the CBO for deficit impact before Senate consideration.

Posted by: chucko2 | January 5, 2011 3:04 PM | Report abuse

I hear both Snookie and Boehner have tanning disease and won't last two years before they croak.

Who cares what they think?

Posted by: WillSeattle | January 5, 2011 3:48 PM | Report abuse

@eggnogfool wrote:
"When did controversial legislation ever pass with less than 60 Senate votes (barring reconciliation-based legislation)?

People seem to have this idea that there used to be a time when the Senate was churning through legislation with 54-45 majorities, and I'm just not clear on what year they think this happened."
.
Turn that around. Previously, *only* controversial legislation needed 60 votes. Now it is literally everything. Plenty of work got done without 60 votes before this past Congress.
.
You want evidence?
from http://www.numberof.net/number-of-filibusters/
"From the 66th Congress in 1919 up to the 111th Congress which in 2010, a total of 878 flibusters, or motions for cloture, have been voted in the United Senate. This is according to statistics from the US Senate website. The 2007-08 110th Congress recorded the most number of filibusters for any year with 112."
.
So ONE NINTH of all filibusters done in the last 90 years were done in just the last 2 years.
.
Also remember, many of more filibusters never actually happened in the last 4 years because the GOP telegraphed that they would object so the Senate simply didn't bring up those bills.
.
More evidence? The GOP preventing the 9/11 responders bill (and everything else in the lame duck) from coming to the floor until tax breaks for the rich had passed. Please do try to defend that...

Posted by: rpixley220 | January 5, 2011 4:11 PM | Report abuse

@eggnogfool wrote:
"this "slow transformation" was completed in about 1793, right? since then, the number of votes required to break filibuster have gone down, not up (from 100 to 67 to 60)."
.
Try and keep up. The 'filibuster' was not 'invented' until 1806 and not noticed and used until 1837. From http://en.wikipedia.org/wiki/Nuclear_option
.
The first set of Senate rules included a procedure to limit debate called "moving the previous question." This rule was dropped in 1806 in the misunderstanding that it was redundant.[9] Starting in 1837, senators began taking advantage of this gap in the rules by giving lengthy speeches so as to prevent specific measures they opposed from being voted on, a procedure called filibustering

Posted by: rpixley220 | January 5, 2011 4:19 PM | Report abuse

@eggnogfool

Everything rpixley220 wrote is correct. One additional thing:

The filibuster was not part of the rules of the first Senate in 1789. It became possible as an unintended side effect of rules changes enacted in 1806. It took a while before anyone realized the effect those changes had, and the first actual filibuster did not occur until 1837.

I guess that is not in and of itself an argument for abolishing the filibuster, but it deserves to be pointed out that the filibuster was a historical accident, not something that was created on purpose.

Posted by: hansr | January 5, 2011 4:29 PM | Report abuse

This is a good change. Politicians should be forced to debate bills when they want to filibuster. It was meant to give senators time to convince the other senators they are wrong and to vote with the minority.

The minority will now have to seriously think about filibustering a bill, because if you actually have to debate it, there are several drawbacks to that. It takes up time and energy, and also gives pundits and political opponents lots of video and dialogue to use against you. If a senator does something ridiculous like read cooking recipes or if they talk so much they eventually make a mistake and contradict themselves or misrepresent the facts, all of that can be used against them later.

The filibuster should be more like it was intended and more like people think it is now, a continuous debate on an issue so important that senators are willing to stand and debate it for as long as it takes to convince the majority they are wrong.

Posted by: DeanofProgress | January 5, 2011 4:30 PM | Report abuse

@eggnogfool: Who said anything about controversial? Ezra didn't and I didn't; the point you were disputing was the idea that it's a recent development that every piece of *routine* business requires a supermajority, and a cloture vote. This difference is not a result of a change in the rules, just a change in how one party chooses to use them.

This is simple fact, which can be verified by comparing the number of cloture votes to the number of votes on final legislation.

"Controversial," however you define it, doesn't enter into it. Completely uncontroversial legislation and nominations are routinely filibustered by Republicans now. The difference isn't between bills that pass 65-35 and ones that pass 54-46; most of the ones that got past the filibuster have gotten far more than 60 votes on the final vote.

Posted by: jimeh | January 5, 2011 4:35 PM | Report abuse

I would have settled for one simple change - Require 40 votes to sustain a filibuster rather than 60 votes to break it. Put the responsibility on the filibustering party. Make them come up with 40 votes against something rather than allowing 40 Senators to be absolutely silent on their position. If someone wants to vote against Obamacare because it sounds to European, or somebody thinks regulating Wall Street is Sharia law or somebody thinks that Don't Ask Don't Tell sounds like too much fun to repeal, fine. And I mean that. Any opinion may be expressed and debated. But make them express those opinions. Put them on record as having voted against those things rather than these vague "concerns" and "processes" and "ramming down our throats" nonsense.

Posted by: willows1 | January 5, 2011 4:38 PM | Report abuse

This has reminded me of the West Wing episode "The Stackhouse Filibuster", which is a favorite of mine.

Posted by: MosBen | January 5, 2011 4:39 PM | Report abuse

@hansr:

Unlike Erza, I think these changes go a long way towards fixing things. I like the Filibuster and don't want it abolished. I simply want there to be an appropriate 'cost' associated with wielding it.
.
Removing anonymous holds is also a very good thing.

Posted by: rpixley220 | January 5, 2011 5:25 PM | Report abuse

Ezra--

This bill, if played right by the Senate majority, imposes a small but real cost on the use of the filibuster. I look at it as the political equivalent of DC's $.05/bag tax on plastic bags-- the move from "free" to "nominal fee" can, potentially, have a substantial effect on behavior.

I think it's the right move.

Posted by: adamiani | January 5, 2011 7:44 PM | Report abuse

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