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Wednesday, January 05, 2011

Filibuster Reform Proposal

The Senate Resolution on filibuster reform, chiefly sponsored by Sen, Udall., has been filed (H/T: Law Courts ListServ). The motion is far narrower than most filibuster critics would have liked. Importantly, it does not change the basic power of 41 Senators to halt all action on legislation and nominees--no conversion from a mechanism of stopping action to one of delaying action, no change to require an ever-decreasing number to invoke cloture in subsequent motions, no elimination of the filibuster on executive or judicial appointments.

It makes two important (in my view) changes. First, it completely eliminates anonymous holds, specifically the practice of one senator placing by name a hold on behalf of another senator who wished to remain anonymous. Everyone involved in the hold must be named. Of course, it does not eliminate the practice of holds, thus a single senator can stop nominees from even coming to vote, meaning a single senator still can defeat nominees. I am not sure that the loss of anonymity is going to change the practice--I think a Tea Party Senator is going to take pride in stopping some "activist" from taking the bench (and vice versa when the Republican are back in the majority).

Second, the new rule brings back the Mr. Smith/Strom Thurmond talking filibuster ((I previously argued for this change, although new scholarship and the events of the past two years have moved me to want greater reform). But the proposal does so in a way that truly places the onus on the filibustering minority.

Under current rules, if a cloture motion fails, "debate" continues unless the majority suspends consideration of the matter and moves on to other business--which is always what happens. Largely, I think, because if the majority did force a talking filibuster, the burden would have fallen largely on the majority party. If Mr. Smith held the floor, the majority would have had to remain on the floor while he spoke (while Smith's supporters could have left and gone home or to their offices to rest). If a sufficient majority does not remain in chambers, Smith could suggest the absence of a quorum, leading to a quorum call, during which he could stop talking.

Under the amended rule, an unsuccessful cloture vote leads to a period of "continuous debate" on the measure or other matter, continuing as long as the matter remains pending business. During continuous debate, if a Senator has been recognized, there can be no motions or quorum calls--the Senator (and those in the supporting minority) must hold the floor and continue talking. If no Senator seeks the floor, the period of continuous debate is over and cloture shall be considered invoked. In other words, cloture can come without if an affirmative 60-person vote, but simply because the minority stops speaking (however unlikely that may be).

Of course, the majority still can bypass the talking filibuster by suspending consideration of the filibustered matter (it ceases to be "pending business") and moving on to other business, which ends the period of continuous debate. Thus, a genuine talking filbuster requires some political will from the majority. The leadership must be willing to let the filibuster halt consideration not only of the target matter, but of all Senate business. That will be entirely a political calculation for the majority: How will a true filibuster play with the public--will the public become angry that this is tying up the entire business of government so that the minority eventually gives up (see the debates over the Civil Rights Act of 1964)? Or will the majority fear that it will be blamed for the complete end to all Senate business?

It remains to be seen how the motion will play out and how the Republicans respond. Mitch McConnell derided talk of filibuster reform (assuming the proposal was elimination or radical modification of the process) as a Democratic power grab (there has been a lot of such talk today). It seems hard to call what has resulted a power grab, since it does not strip the minority party of any power to block action. It simply requires the minority to be more obvious and public when doing so.

Update: Gerard Magliocca, who has done some great recent work on the filibuster and the legislative process generally, calls the talking filibuster "basically a joke" and "entirely symbolic," because the new rule does not eliminate the current two-track system, under which the majority can suspend the "filibustered" matter and move on to other things--and usually does. I describe above as a matter of political will and still believe that the majority may be more willing to keep the matter pending knowing that it does not have to maintain a quorum. Gerard suggests the rule would be improved if it required the matter to remain pending for a minimum period after cloture is rejected. I agree that would be a worthwhile change.




Posted by Howard Wasserman on January 5, 2011 at 03:37 PM in Current Affairs, Howard Wasserman, Law and Politics | Permalink


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I respectfully suggest that any rule change should be one that the Democrats would be happy to live with if and when they are in the minority again. To assure everyone that is the case, if they want to pass a rule today, it should not take effect until after the 2012 election. Hell, they might even get bipartisan support for a rule change in that form.

Posted by: Douglas | Jan 6, 2011 4:46:19 PM

The proposed change strikes a good balance, letting an impassioned minority have their say but requiring them to make their case to the American people and/or pay the political price for bringing the legislature to a grinding halt.

Posted by: Andrew Siegel | Jan 5, 2011 5:55:40 PM

Can they just go with the rule that the filibuster isn't allowed whenever the Republicans are in the minority but allow it whenever the Democrats are in the minority in the Senate?

Come on, the filibuster was needed back in 2005 but it isn't needed in 2011.

Jeez, I remember back in 2005 Chuck Schumer saying that if the Republicans used the "nuclear option" in getting rid of the filibuster then it would have been a "constitutional crisis."

Posted by: anon | Jan 5, 2011 5:22:31 PM

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