Time to Change the Senate’s Rules?

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February 10, 2010 by D Stack

The Republic is not what it once was. The Senate is full of greedy, squabbling delegates. There is no interest in the common good.

– Senator Palpatine (later Chancellor and Emperor), Star Wars Episode I: The Phantom Menace

Of late the United States has become the place where presidential nominations and bills go to die. The Senate has a variety of procedures that allow it to slow down or even halt legislation with something not even approaching a majority – sometimes even the will of a single senator. The best known of these methods is the filibuster, whereby a senator refuses to give up the floor, effectively shutting off debate. It requires 60 votes to end a filibuster, something very difficult to accomplish. The number 60 is not sacred as the Senate, as dictated by the Constitution can define its own rules for business. For example it previously took 67 votes to break a filibuster. Typically it is just the threat of a filibuster that is used to end debate (votes for cloture) – if a senator threatens filibuster there will be a vote to see if the filibuster can be blocked. If not the debate is tabled. Senators tend to view senators required to talk for hours on end without even a bathroom break as undignified, especially since in a change of control they might find themselves being the ones performing the filibuster.

A variant of the filibuster was recently used by Senator Shelby of Alabama to put a blanket hold on all Obama nominees needing conformation before the Senate — for the noble purpose of getting more pork for his state. It would have require 60 votes to break this hold.

The filibuster, whether to block presidential nominees or legislation, has become increasingly common over the past several decades. Consider the following chart from a Talking Points Memo article: The Rise of Cloture: How GOP Filibuster Threats Have Changed the Senate.

TPM Cloture Stats

There is an argument that the ability to block debate is a good thing – it allows a minority to still have a voice in debate and forces their consent in a bill or nominee at least reaching a vote. However this has clearly changed to a tool to block the majority party from accomplishing anything. This, coupled with the increased rigidness of both political parties (party-line votes were once very uncommon) has resulted in reaching the point in 2009 where well over one hundred motions for cloture were filed. Rhode Island Senator Whitehouse put this into perspective:

We have crossed the mark of over 100 filibusters and acts of procedural obstruction in less than one year. Never since the founding of the Republic, not even in the bitter sentiments preceding Civil War, was such a thing ever seen in this body.

I believe that the use of the filibuster (by both parties) has become far too prevalent and is especially evident in this session of congress.

I’m at the point of believing it would be for the best for the filibuster to just end and accept the consequences of that. As someone who leans liberal that certainly means giving up an advantage when my party is in the minority but the inability of the Senate to accomplish anything has become crippling. The House of Representatives has had its own problems with getting legislation to a vote. The mid-19th century saw the end of the House filibuster though it was replaced by the “disappearing quorum” – members of the House refusing to answer quorum calls to prevent debate. Speaker Thomas Reed ended this in the late-19th century even though he found himself in the minority party shortly thereafter. In a reminder that political advantage is always transitory he again became Speaker of the House. Democratic Senator Tom Harkin of Iowa has, year after year, regardless of who has been in power, proposed changing the Senate rules on cloture such that there would be four votes on cloture, the first requiring 60 votes and the final one requiring 51. This would allow a minority party to slow down legislation and nominations but not to fatally end it. This may well be a reasonable compromise. With a limited amount of time this would force a majority party to either get broad agreement or prioritize their agenda to take into account the time required to break a filibuster.

As an immediate measure I do think it is time to make Senators attempting to block debate to actually go ahead and hold onto the Senate floor. It may be undignified, but so is stopping the business of governing for partisan gain or the simple desire for more pork to be sent back to a senator’s home state.

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