Thursday, December 6, 2012

Does the Democrats' Filibuster Reform Pack More Punch Than Commonly Understood

     That's the argument put forward in today's Talking Points Memo. The piece focuses on the option that has been most widely discussed-imposing a "talking filibuster." The other thing has been to take away the ability to filibuster the majority even bringing a bill up for debate. Overall, the idea is to preserve the filibuster but reduce the amount of opportunities to use it.

     At present there are so many: even bringing it up can be filibustered, and even taking a bill that has been passed to conference with the House can be filibustered and many points in between. According to an interview TPM had with a Democratic Senate aide, imposing the talking filibuster would have a much deeper impact than appreciated. It would essentially end the 60 vote supermajority:

     "Senate Democrats who support reforming the filibuster when the new Congress convenes next month insist their ideas are fairly modest. Their farthest-reaching proposal, they say, would be to end the era of silent obstruction, and force filibustering senators to hold the floor and register their objections publicly, and at indeterminate length. The 60-vote supermajority typically required to end the filibuster, they insist, would still stand."

     "But would it really?"

      "TPM spoke with a Senate Democratic aide familiar with how the rule would work in practice. In short, if the majority party wins the test of wills, the super majority requirement would be irrelevant.
Currently the minority party can mount “silent” filibusters, so long as the majority can’t muster 60 supportive votes. That means they can block a bill from moving to debate or to a final vote without necessarily occupying the floor and speaking, just like the iconic scene in Mr. Smith Goes To Washington. If even a single member of the minority objects quietly to a simple-majority vote on a piece of legislation or a nominee, the majority must muster 60 votes to end debate."

    "The Democrats want to alter these incentives by implementing a “talking” filibuster that shifts some of the burden to the filibustering minority. The reforms under consideration would take away obstructing senators’ shortcuts in scuttling a bill, forcing them to occupy the floor and speak ceaselessly until one party or the other loses its will and gives up."

    "Specifically, here’s what the plan will do: if the minority summons enough votes to block a cloture motion, the Senate would proceed to a period of extended debate. Then, in order to sustain the blockade, at least one of the 41 filibustering senators would be required to hold the floor and speak without any ability to suspend debate."

    “The idea is, you can’t ask for a quorum call and we get rid of all the other ways you can delay. So if you want to block a majority vote, you have to be on the floor talking,” said a Senate Democratic aide familiar with the plan. “As soon as someone’s not talking, the majority can ask for a vote to move forward, and that would require 51 votes.”

    "That would dramatically weaken what is currently an ironclad 60-vote requirement to move to a final vote on legislation without the unanimous consent of the Senate."

     “It really puts the onus on the minority when it wants to obstruct and delay,” the Democratic aide said. “They can filibuster as long as they want to be on TV, showing that they’re being obstructers.”
Members of the majority party, it should be noted, would need to be close at hand in order to pass legislation if the minority exhausted itself and ended its talking filibuster.

     It doesn't sound so bad to me, at this point, though I'm a Democrat and we have the majority right now. There is a point that it's important to think about what the implications might mean if the Democrats are in the minority again-at some point that will happen. Jonathon Bernstein always makes this point-he thinks there must be filibuster reform but this should be kept in mind. It does need to happen-how much more dysfunctional can it get?

    McConnell at this point is down to making the strongest argument he can: he's appealing to Democrats to think about how they might like the new rules when they're in the minority again. He admits that Republicans were wrong to consider the "nuclear option' back in 2005-lead by him, of course, as he's the Republican Senate Leader.

     "Senate Minority Leader Mitch McConnell (R-KY) warns that if Democrats succeed in their effort, they’ll live to regret it when they return to the minority."

    “There’s growing Democratic unease with breaking the rules to change the rules. I think it would be very difficult for that to come about,” he said Tuesday. “That was appropriately labeled by the other side a few years ago when we were thinking of doing something similar, the ‘nuclear option.’ I think it would be bad for the institution, bad for the country.”

     It's a decent argument, though, it's totally self-serving. However, the current status quo is very bad for the country. As Reid always points out: there was 1 filibuster during LBJ's term-and he passed the Voting Rights Act and Medicare-and during Reid's time as Senate Majority Leader there's been 386.

    Something has to be done. This TPM post is interesting because in contradiction to so many commentators-from Greg Sargent, to Bernstein, to Ezra Klein, it argues that the talking filibuster will be very effective, indeed, it would crush the filibuster. It's hard right now to see that as a bad thing. I do agree that ideally-as Bernstein argues-what we want is to do away with the effective 60 vote supermajority, but, on the other hand we don't want the Senate to become just like the House where it's 100% majority rule.

    Something that ends the status quo but still keeps the Senate's distinctive character is what's wanted.

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