Monday, November 12, 2012

Top of the Democrats' Agenda: Meaningful Fillibuster Reform

     The emphasis is meaningful filibuster reform. The good news is that 50 Democrats in the new Senate are on record calling for filibuster reform. Even better news is that Senate Majority Leader Harry Reid is behind it.

    In the past, he's been a skeptic of filibuster reform. A certain wariness is quite understandable and legitimate. After all, while ending the filibuster would be very efficacious for the Dems right about now, what about the next time the GOP has the Senate? This has always been a major point of caution. Yeah maybe it helps today but what about tomorrow?

   Now however Reid has come around as it's not possible to be worse than the Senate status quo. We've heard different recommendations-making sure that people have to own their filibusters as it were- no anonymous filibusters-and no more filibustering even the motion to bring bills to the floor.

   Yet Ezra Klein and Jonathon Berstein makes the point that before we can get good filibuster reform we have to quantify exactly what we're trying to achieve with it. Klein argues very persuasively that what the central problem is that must be fixed is that the Senate has now become a body which requires a 60 vote supermajority to get anything done.

   There's a case that the filibuster itself is of value, that we should have an option for the minority to fight back, that the should have the ability to resist the majority. Yet the filibuster historically was not used a lot. As Klein tells us, what we have seen in recent years, particularly since 2009, is without precedent:

    "Filibusters used to be relatively rare. There were more filibusters between 2009 and 2010 than there were in the 1950s, 1960s and 1970s combined. A strategy memo written after the 1964 election by Mike Manatos, Lyndon B. Johnson’s Senate liaison, calculated that in the new Senate, Medicare would pass with 55 votes — the filibuster didn’t even figure into the administration’s planning."

     Today it does much more than simply defend minority rights:

     "Today, the filibuster isn’t used to defend minority rights or ensure debate. Rather, the filibuster is simply a rule that the minority party uses to require a 60-vote supermajority to get anything done in the Senate. That’s not how it was meant to be."

      Klein really does a great job of getting at what the central problem is-that we now need a supermajority to get normal business done. Any effective filibuster reform must put an end to that:

      "The problem with the filibuster isn’t that senators don’t have to stand and talk, or that they can filibuster the motion to debate as well as the vote itself. It’s that the Senate has become, with no discussion or debate, an effective 60-vote institution. If you don’t change that, you haven’t solved the problem."

      "Defenses of the filibuster tend to invoke minority rights or the Constitution’s preference for decentralized power. It’s true the Founding Fathers wanted to make legislating hard. That’s why they divided power among three branches. It’s why senators used to be directly appointed by state legislatures. It’s why the House, the Senate and the president have staggered elections, so it usually takes a big win in two or more consecutive elections for a party to secure control of all three branches.

     "But the Founders didn’t want it to be this hard. They considered requiring a supermajority to pass legislation and rejected the idea. “Its real operation,” Alexander Hamilton wrote of such a requirement, “is to embarrass the administration, to destroy the energy of government and to substitute the pleasure, caprice or artifices of an insignificant, turbulent or corrupt junta, to the regular deliberations and decisions of a respectable majority.” Sound familiar?"

     There are different ways we might achieve our goal: a Senate that no longer is chronically dysfunctional-that is to say, no longer requires 60 votes to get normal business done. The "nuclear option" is to simply end it all together. To be sure minority rights are a valid concern even though they have been abused here. Bernstein has some ideas and looks at various proposals.

    Two things he looks at is loosen the rules on reconciliation-which would amount to ending the Byrd rule or paring it back. Another idea is the so-called "SuperBill"-one bill a year that can't be filibustered. There is a suggestion of no longer requiring a three fourths majority for amendments anymore. That's a good point as well: the threshold for an amendment wasn't too high in the past as the parties were less polarized and important. Today, however, can you imagine Congress passing any amendment of whatever importance, much less also getting the state legislatures behind it?

    So there are different ways to go about it. However, while the means can be debated, there can't be any rational debate about the end: as long as a supermajority is required for normal Senate business, our democracy will continue to be highly dysfunctional.




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