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Posted at 11:48 AM ET, 01/ 4/2011

The history of filibuster reform

By Ezra Klein

capitolpeeking.JPG

The actual process is getting increasingly complicated -- the Senate's first "legislative day" might take a couple of weeks, for instance -- but Senate Democrats look to be pushing forward with their effort to reform the filibuster. Cue shock and horror. It's "a radical changing of the Senate's rules," writes Brian Darling, "a naked power grab." Democrats used much the same language in 2005, when Sen. Bill Frist sought to eliminate the filibuster on judicial nominations.

These majority-driven changes are power grabs, at least insofar as they're attempting to give the majority more power to pass their agenda. But they're rarely radical. The Senate has a long tradition of revising its rules. Senators were originally elected by state legislatures, but we tired of that in 1913 and ratified the 17th amendment, turning that power over to the voters. And the Senate kept changing in the years after that.

Generally, governmental dysfunction is frowned on, and efforts to eliminate it are embraced. But in the Senate, such things take on the sepia-toned glow of Tradition. Imagine if no agency decisions could be made without 60 percent of all employees in agreement, and even then, the decision would first have to be debated for two days and then debated for a further 30 hours after the vote. The rule would be used as grist for sweeping and constant critiques of federal inefficiency. But that same rule, applied to the Senate, has many defenders.

It also, however, has many critics, including in the Senate itself. Indeed, the Senate has repeatedly sought to streamline and weaken the filibuster, starting early in the 20th century:

1917: A 23-day filibuster against a proposal to arm merchant ships pushes President Woodrow Wilson over the edge. He calls a special session of the Senate and persuades the members to adopt a cloture rule that allows filibusters to be ended with the agreement of two-thirds of the Senate. Previously, there was no way to close debate. Now there is.

1949: The Senate decides that the cloture rule also applies to procedural motions, such as a motion to proceed. The point, again, was to ensure that there's a way to end debate.

1959: The two-thirds threshold for invoking cloture is lowered from two-thirds of senators "duly chosen and sworn" to two-thirds of senators "present and voting."

1974: The Congressional Budget Act fathered the budget reconciliation process, a vehicle through which a bill dealing exclusively with budgetary matters can be protected from a filibuster. Welfare reform, the George W. Bush tax cuts and the health-care law all were passed through this process.

1975: The post-Watergate Senate, disgusted by the way the filibuster was used to preserve segregation in the ’40s and ’50s and ’60s, again changes the threshold for cloture, taking it from two-thirds of senators present and voting to three-fifths of senators duly chosen and sworn.

Notably, all these reforms have pushed in the same direction: Toward a weaker or, in the case of the budget reconciliation process, nonexistent, filibuster.

Compared to past reforms, what Democrats are likely to propose is quite mild: They will not lower the number of votes required for cloture or protect certain bills from the filibuster. Instead, they want to streamline the process of voting for cloture (it currently takes about three days, and often needs to be repeated multiple times for a single bill) and perhaps make it easier to hold continuous debates, which is what people tend to think filibustering requires, rather than letting minority senators avoid debate by staging repeated quorum calls.

As it happens, I don't think these reforms will fix much. The two real costs of the filibuster are the effective supermajority requirement it imposes and the time it wastes. These reforms would have no impact on either problem. But in the Senate, majority-driven changes to the rulebook are usually greeted with horror and outrage by the minority, almost regardless of what they actually entail. We can expect that tradition, at least, to be enthusiastically honored.

Photo credit: By Joe Raedle/Getty Images

By Ezra Klein  | January 4, 2011; 11:48 AM ET
Categories:  Senate  
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Comments

So in other words, Senate Democrats are going to squander a rare opportunity to implement substantive change in favor of a few cosmetic adjustments. Great.

Posted by: Jasper999 | January 4, 2011 11:58 AM | Report abuse

One small correction: The Health Care law was passed through the regular process, overcoming a filibuster in the Senate. It was a small package of conformations (to the House version) and fixes that were passed with the reconciliation process.

But on your larger point, I largely agree. The proposal to prevent filibusters on opening the debate seems substantive, but the other changes I've seen proposed so far aren't going to have a significant effect. If the Publicans can keep 41 of their Senate members to vote against cloture, as they've done for the last 2 years, they're likely to be able to get 10, or even 20, to tag-team on an actual "hold the floor" filibuster.

Posted by: KarenJG | January 4, 2011 12:14 PM | Report abuse

Can I get journolist sent to my email?You need to shave your peachfuzz.

Posted by: pacsandi | January 4, 2011 12:29 PM | Report abuse

Streamlining rules to bring about a quicker conclusion of a filibuster would eliminate a symptom but not the problem.

Our legislative bodies are given the responsibility to govern for Americans, not just Red states or Blue states.

Both sides use filibusters, for good and bad. Until there comes a time when our current bodies can understand their inherent responsibilities to All of the United States, the parliamentary procedure should stay in service.

Posted by: RisingTideLiftsAllBoats | January 4, 2011 12:30 PM | Report abuse

I honestly don't get the Democrats. I don't know why, when the 111th session ended, they didn't immediately propose a complete filibuster reform proposal, in public, to the Republicans. They could make all the arguments about how many House bills weren't debated in the Senate because of anonymous holds and no-debate filibusters, etc. This proposal would be something along the lines of Ezra's idea that the reform would happen in 6 years.

If/When the Republicans balked or outright opposed it, the Dems would say, "Ok, look: we tried to put forward a bipartisan reform that wouldn't have been enacted for 6 years, but they're not interested, so instead we're going to do a milder reform like Tom Udal's and we're going to put it into effect now."

Posted by: MosBen | January 4, 2011 1:00 PM | Report abuse

Ezra,

Any filibuster "reforms" that don't include reducing the necessary cloture vote and requiring the senator to actually filibuster — standing, in the Senate, talking on subject — is a waste of time.

The threat of the filibuster was that it halted the Senate, not just delay a given vote or subject of debate it for a few days. By not making the senator who wants to filibuster actually do it, there is no great downside to the individual who invokes it. He has no price to pay. If he wants it, let him earn it.

And the way to make sure the rest don't have to listen to the filibustering senator for excessively long is to reduce the cloture vote threshold, either to a simple majority, or a minor supermajority of senators present, say 54 or 55.

Right now the only cost to a senator is the voters' memory in the next election. But two, four or six years are an eternity in which memories can be lost.

Make them earn their victories.

Posted by: tomcammarata | January 4, 2011 2:19 PM | Report abuse

Thank goodness your history starts at 1917. Any earlier, and we couldn't possibly understand it.

Oh, and you forgot to mention that filibuster reform is only necessary when the Democrats control the Senate (the better to effectuate progressive laws). When the GOP has a majority in that chamber, the filibuster is the sacred bulwark against the Red State Majority attempting to trample on progressive laws.

Posted by: VirginiaPerson | January 4, 2011 5:49 PM | Report abuse

The quorum call portion of the current proposal is interesting. The quorum requirement is specified in the Constitution itself (and was the topic of copious recorded debate) and, unless an amendment is passed, any Senator has the absolute right to suspend all Senate proceedings at any time due to absence of quorum. Note, though, that 2/3rds of the Senate can expel a member, including a member calling for quorum.

It will be interesting to see if anyone uses absence of quorum to challenge a statute passed by a rules-modified Senate. The Senate would also be wise to refrain from declaring itself a non-continuous body: I'm getting the distinct feeling that nobody has really considered the ramifications of the proposed rule changes.

Then again, the same folks who wrongly thought the PPACA was constitutional and wrongly thought that they would be rewarded for passage of the PPACA are at the helm... so yet another unpopular power grab shouldn't come as a shock.

Posted by: rmgregory | January 4, 2011 5:56 PM | Report abuse

We we need to see is actual filibusters. What is the point of going from one debate to the next when they all just end up going no where because of filibuster THREATS. Reid should not back down from the threats. He should be forcing actual filibusters.

Posted by: timothy2me | January 4, 2011 6:08 PM | Report abuse

I see you are still confused by the Constitution, the 17th amendment is not a change to the senate rules.

Posted by: beech35 | January 5, 2011 11:06 AM | Report abuse

really sucks that we couldn't have gotten into WWI earlier. Imagine how many American soldiers missed the chance to die. Maybe we wouldn't be bogged down in constant war now if a few brave souls in the Senate could filibuster it.

Posted by: iculus | January 5, 2011 11:21 AM | Report abuse

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