The First Order of Business: Filibuster Reform

The Dems still have one House. They need to clean it up.

Now that the Democrats have held the Senate, they need to get their own house in order, and that means filibuster reform.  This time is now: the Senate can change its rules by simple majority at the beginning of a Congressional session, i.e. this coming January.

I’m assuming that Bennet wins in Colorado, as the Denver Post has already called it, and that Murray wins in Washington, since most the outstanding ballots are in Democratic King County (which includes Seattle).  That leaves the Dems with 53, including Holy Joe.  (Whoever wins in Alaska — either completely crazy Joe Miller or basically crazy Lisa Murkowski — will caucus with the Reps).

Is this majority enough to transform the filibuster?  No.  But it could be able to do one big thing, and maybe another.

First, end the filibuster for executive branch appointments.  It is simply unconscionable for the minority to prevent the President from filling his or her administration — regardless of which party is in power.  You don’t like Obama’s Czars?  Fine.  Give him up-or-down votes.  This really is a good government thing: the government has to run, and it has to be staffed.  No danger here of locking in political appointees past their time.

Will these 53 Dems do it?  I hope so.  You can always count on them to cave, and people like Mary Landrieu have tried to use these holds over appointees in order to extract concessions.  But this is so basic that it is really a requirement. 

Second, make them actually filibuster.  Many — including myself — were initially furious with Harry Reid for not making the Republicans actually filibuster, but there was a reason he didn’t: he couldn’t.  Under current rules, silent filibusters rule: all the minority needs is one Senator in the chamber to “note the absence of a quorum” to bring up a quorum call, and prevent cloture.

Now, most Senators might reject general abolition because they don’t want to give up that weapon if it’s really important.  Fair enough, I suppose — if it’s really important.  Put another way, making them actually filibuster could force them to disclose what some economists call their “reservation price” for something.  Right now, filibustering is costless.  It shouldn’t be.

The question is whether the Democratic caucus actually cares about helping their country (and their party), or whether they are more interested in their personal perks.  Heretofore, it has been the latter.  But they need to know that if they maintain the current system, they will lose the majority in 2012 — the 2012 Democratic Senate map is pretty ugly (defending Tester, Webb, MacCaskill, Cantwell, Stabenow, both Nelsons, and steaming pile of Kent Conrad).  They have to show that they can govern their own institution.

Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.

35 thoughts on “The First Order of Business: Filibuster Reform”

  1. One more thing, Jonathon. Abolish the filibuster for procedural votes. Filibuster the actual vote all you want or can, but no filibuster on strictly procedural measures, like whether to proceed to debate. Only allow it on a cloture motion for the actual bill.

  2. Agreed; it's less significant for the filibuster, but could be very helpful in terms of breaking holds.

  3. Well, looking at the races for '12, if I were a Dem Senator, I would expect to lose the majority then and might think the filibuster would be a swell thing to have.

  4. Dave — Maybe true. But that still shouldn't apply to executive appointments. And remember, my proposal doesn't mean getting rid of the filibuster; it means making sure that you have to do it. Dem Senators will have little problem filibustering GOP plans to gut Medicare and Social Security. They'd be happy to take credit for THAT.

  5. I don't think it is fair to call Lisa Murkowski crazy. She might even be the most rational Republican senator except for Dick Lugar. (I exclude the pending retirees.) Of course, it's hard to tell if you're rational if you must pander to crazy constituents, because acting crazy becomes the rational thing to do.

  6. What makes anybody think that the GOP won't discard the filibuster January, 2013 if they win the Senate and Presidency? Doing it now at least would allow the Democrats to have some control over the process, at least. And gain some benefits.

    Plus, would make the GOP look like hypocrites when then switch to wanting to end it in 2013. (as if they cared.)

  7. The point about ending filibustering of Obama's appointments makes sense. With Republicans controlling the House, the only important stuff Obama will get done now will be through executive actions, and he needs good staff in place to do that. This has been basically true for two years (thanks to the Senate), but now it's super-obvious.

    As far as filibustering of bills, you think it matters more now? It matters much, much less. I like the analysis I read on Yglesias today: for the next two years all legislation will be negotiated between Barack Obama and John Boehner. Anything they agree on will have plenty of right-wing support and filibusters shouldn't be much of an issue. Actually, based on Obama's demonstrated willingness to make concessions and weak personal commitment to certain leftist goals, I wouldn't be surprised if Senate Democrats start objecting (not in big enough numbers to mount a filibuster though).

    I hate to be rude, but your last point is downright idiotic:

    "But they need to know that if they maintain the current system, they will lose the majority in 2012 — the 2012 Democratic Senate map is pretty ugly (defending Tester, Webb, MacCaskill, Cantwell, Stabenow, both Nelsons, and steaming pile of Kent Conrad). They have to show that they can govern their own institution."

    They have to show who? You? Will you vote against the Dems if they don't get the Senate in order? 98% of voters know nothing of the nonsense that goes on in the Senate and they do not vote based on it. If the 2012 Senate map is pretty ugly then we will probably lose the Senate in 2012. Much less likely, if the economy somehow picks up, Obama could manage to restore his popularity and lead a big enough wave to hold the Senate (and retake the House in the process). What the Senate passes and doesn't pass may have a small impact. What rules the Senate adopts will have no measurable impact at all.

    Finally, as people have pointed out, if Obama loses in 2012–which he could with a crappy economy–Republicans will probably have the House and Senate too. This election's result makes that seem more likely, and thus thoughts about 2012 should make them more inclined to KEEP the filibuster.

  8. While I'd prefer straight up elimination, I think a reasonable compromise would be switching from needing 60 votes to end debate to needing 41 votes to continue it. That puts the burden to round up the votes on the minority, so you don't have ridiculous situations like Kennedy and Byrd counting as noes on every filibuster just because they can't make it to the vote.

    It also severely curtails the power of the hold. A hold is just a promise to object to the motion to proceed. Under the current rules, one Senator in opposition can object to the MTP, and it takes 60 to override them. If the rule were flipped as I suggested, no one could singlehandedly hold up anything. They'd need forty colleagues to back them up. Filibusters wouldn't go away, but the routine obstruction that characterized the 111th Congress would end.

    In fact, you could argue that it would return the filibuster to what it is in the minds of the Senators who want to preserve it: a tactic that's reserved for extreme circumstances. It would be very difficult to demagogue, just because it doesn't even sound like a real change unless you understand how Senate rules work. Most political reporters wouldn't be able to understand, let alone convey the consequences. The Democrats would describe it as a small tweak, and the Republicans would be flipping out, and to the layperson it would sound like they were flipping out over nothing.

  9. "What makes anybody think that the GOP won’t discard the filibuster January, 2013 if they win the Senate and Presidency?'

    Essentially, the fact that the Republican base puts a higher priority on blocking bad legislation than getting good legislation passed, so that Republicans value the filibuster more. And that Republicans are less prone to the delusion that their latest takeover is going to last forever…

  10. Anyway, I'm in favor of filibuster reform, especially of appointments. A pity Democrats only get interested in it on those occasions where they lose control of the Senate. You could have had it any time you wanted it over the last two years…

  11. Brett, you are incorrect thinking the Dems could have modified the filibuster mid session.

    It's been addressed. Short answer:

    you can filibuster attempts to change the rules, 67 votes to overcome.

    And I'm confused what you mean by "Democrats only get interested in it on those occasions where they lose control of the Senate."

    They haven't lost it yet, and I'll be less interested in it if they lose in 2012.

  12. "Brett, you are incorrect thinking the Dems could have modified the filibuster mid session.

    It’s been addressed. Short answer:

    you can filibuster attempts to change the rules, 67 votes to overcome."

    That's very silly. Plenty of people have described a procedural way for the VP/speaker pro tem to get a majority vote to change the rules. More to the point, the rules are whatever the Senate says the rules are. Suppose the House passes a bill, and Harry Reid disregards the process and calls a vote on it. If 51 senators vote for it, and he sends it on to Obama, and Obama signs it, then it's law. There is no Procedure God who would stop it. The Supreme Court would not and could not legally stop it. The filibuster is not law; it is a courtesy extended to the minority by the majority. It is only meaningful if senators decide it is. Anyone who says the House or Senate or President has to follow customs that aren't in the Constitution or law is just choosing to surrender.

  13. Chaz,

    After 2000, I will never again predict what the SCOTUS will do.

    And for the record, rules are not 'courtesies extended to the minority' unless you are playing calvinball.

  14. This business of when the majority can change rules drives me nuts. I've read more oppinions on it, back and forth and everybody has a different oppinion and everbody claims their oppinion is correct. And the question of whether they are binding is a wrinkle I haven't heard before, though I imaging a substantial number of senators wouldn't support ignoring rules, legally binding or not so it is effectively moot. Does anybody really know? There has to be a definitive answer to this question.

    Dennis: Your point about limiting filibuster to substantive votes is spot on.

    Jonathan: Love the cartoon. Good post too. Thanks

    Here's a question I would like an answer to: Does the backlog of bills passed by the house die with the disolution of the current session or can the senate pass them after rebooting the rules?

  15. "Anyone who says the House or Senate or President has to follow customs that aren’t in the Constitution or law is just choosing to surrender."

    Exactly. Hell, they don't follow procedures that ARE in the Constitution, like revenue bills having to originate in the House, or both chambers having to vote on the same language, or the quorum requirement. Senate traditions are in insurmountable obstacle? When the Constitution itself is written on silly putty in disappearing ink, how can you seriously assert that Senate rules are engraved in stone?

    "And for the record, rules are not ‘courtesies extended to the minority’ unless you are playing calvinball."

    Yes, and when, since the New Deal, haven't we been playing calvinball? That's what 'living constitutionalism" IS.

  16. Darn sticky shift key. Never let your two year old within 10 feet of the laptop with a sippy cup full of juice…

  17. > Suppose the House passes a bill, and Harry Reid disregards the process

    > and calls a vote on it. If 51 senators vote for it, and he sends it on

    > to Obama, and Obama signs it, then it’s law.

    I'll take that a step farther: I don't see why the a presiding officer (of the Senate) is needed at all. If 51 Senators walk into the Senate chamber, one of them says "I call the question on SB 1234", and all 51 say "aye", that's it: it's passed.

    Cranky

  18. The main reason holds are respected in senate rules is that so much is done by unanimous consent. One objection foils that process. Not sure they need a rule change – just take more real votes. But of course Senators don't always want a vote on the record.

    As for forcing an actual filibuster, that requires the majority to keep a quorum in the chamber. That's why the silent filibuster rule exists. You could call it the Mr. Smith Goes to Washington rule. They broke his filibuster by keeping the chamber in session.

    Fianlly, it is all but inevitable that the GOP will tip control in 2012. Amazing how close they came this time. Of course what looks inevitable now might look quite different two years from now. But Dems will be defending very tough seats, and unless the picture changes soon, expect announcements that some incumbents are retiring rather than run again.

  19. Greg,

    a reasonable compromise would be switching from needing 60 votes to end debate to needing 41 votes to continue it.

    Good idea, I think.

  20. Brett, we happen to live in a world much different than that of 1776. A strict interpretation would require Congress to authorize the release of the Nuclear Launch Codes. Not sure how sending a missile out is anything but war. (First strike, not retaliatory.)

    But whatever about that – the question is "What rules can the Senate craft in January 2011 to make it work better?" which does not require delving into Living Constitution vs Constitutional Literalism.

  21. "As for forcing an actual filibuster, that requires the majority to keep a quorum in the chamber. That’s why the silent filibuster rule exists. You could call it the Mr. Smith Goes to Washington rule. They broke his filibuster by keeping the chamber in session."

    Ugh. I always here how hard that would be for Democrats. Poor fragile creatures. Keeping a quorum in the chamber isn't that hard. Do it for three or four days on an important issue (unemployment extensions would have been perfect) by going to the bathroom in shifts. If you can't make a media event about it, you're the incompetent ones. But in any case, if they had tried that and THEN nothing had happened, I'd be much more open to complaints. They didn't try even for to force a filibuster. Not even once. Don't talk to me about how hard it is when you won't bother with obvious steps to do it.

  22. "The main reason holds are respected in senate rules is that so much is done by unanimous consent. One objection foils that process. Not sure they need a rule change – just take more real votes. But of course Senators don’t always want a vote on the record."

    They don't want to vote on record, because recorded votes make it too easy to prove that the Senate is conducting business without a quorum present. And because non-recorded votes help shift power from the general membership to the leadership, who can pretend the voice vote went their way even when there are doubts. (Assuming the voice vote ever took place; "Allinfavorsayayeallopposedsaynaytheayeshaveit" being one word in the Senate lexicon.)

    Weep me a river, do you expect anybody to take, "But they'd have to show up for work!" seriously as an objection to requiring real filibusters?

  23. If we're here to bitch about the Senate all around, I'll bring it up again – the disparity in state population makes the Senate a horrible way to represent Americans.

    California has no conservative Senators, and Texas has no democratic ones. If we really had a living constitution, we would have fixed that already.

  24. Brett: your typo fixed, as a courtesy from the majority to the minority.

    (I also get peeved when I can´t fix typos in comments, as I can as a blogger.)

  25. MobiusKlein,

    the disparity in state population makes the Senate a horrible way to represent Americans.

    Ah. But the states, MK. The states. After all the acreage we describe as "Wyoming" surely is entitled to the same representation in the Senate as the acreage we call "California." After all, they both have a name, and a government and whatnot. Both are "sovereign states," never mind that Wyoming never had any sovereignty, and California only had it for about a month.

  26. But the Senate was not intended to represent "Americans". It was intended to represent the governments of states. Just like the general assembly of the US is not intended to represent people, so the fact that seats there are not allocated on a population basis is not a defect in terms of what it's supposed to do.

    Now, if you want to argue that the 17th amendment made the Senate redundant, I'd tend to agree. But I'd also argue that history since the 17th's ratification really suggests we are in desperate need of SOMETHING to do what the Senate used to do.

    Bernard: The Constitution was adopted by states which did, in fact, have very long histories prior to the formation of the federal government. And it was adopted with a provision that new states would be admitted on an equal basis. If you're looking for the thing that doesn't make sense there, it is the fact that the federal government was not expected to own land not originally part of a pre-existing state member of that government, (Aside from tiny plots used for embassies.) nor was it expected to be, itself, creating the states that joined it. But, of course, neither of those eventualities can be traced to constitutional language.

    You don't use a fork to eat soup, and then complain with any justice that it's a poorly designed spoon. It's not. It's a fork. You think we ought to have a spoon, instead, that's what amendments are for.

  27. Intended, sure. Lots of things 'intended' in the initial Constitution sucked, and many of them got fixed.

    The Senate due to special wording in the Constitution is fixed in ways that make it immune to amendments. So it sucks, and there is not much we can do about it. Not much we can do except break up large states into smaller ones, which only seems to happen during civil wars. And one was enough.

    The other options are the Supreme Court walloping the Senate, a constitutional convention, or all 50 states agreeing to change things.

    Which is more likely? You tell me.

    (ps – the only things the waiters put on my table was a fork and soup – I'll bitch with justice, thank you.)

  28. Mobius,

    Actually, it only takes Congress and thirty-seven states to change the Constitution. Of course, expecting Congress to change the apportionment of the Senate is approximately like expecting the sun to rise over the western horizon tomorrow morning.

    I'm not sure what you mean by SCotUS walloping the Senate, though. The Constitution seems very clear: each state government gets two Senators. How can the nine sages find something unconstitutional that's written into the Constitution?

  29. Dennis, I'll point you to Article 5, http://www.usconstitution.net/const.html#Article5 which says:

    "The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution … and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate."

    i.e. you can't give one state less say in the Senate. Possibly this would cover attempts to alter this section itself without 50 yes votes.

    Regarding SCOTUS, it's possible for them to find two sections in conflict, and resolve things in one way or the other. e.g. they should have thrown 2000 election to the House of Representatives, according to the constitution. Instead. . .

  30. "Intended, sure. Lots of things ‘intended’ in the initial Constitution sucked, and many of them got fixed."

    More of them just got papered over, by getting the judiciary to pretend the troublesome clauses didn't mean what they said. A process which, not at all incidentally, bypasses the tedious process of actually establishing that everyone AGREES the thing sucks. You think something in the Constitution sucks, use Article V to get rid of it.

  31. Brett, I'm asking you to think about what would be a better way to run the country, rather than engaging in status quo bias. Or arguments about living vs dying constitutionalism.

    the setup of the Senate is lousy for the big states, where 1/4 of the US Population has 6% of the votes in the Senate. (CA, TX, NY)

  32. Brett,

    You don’t use a fork to eat soup, and then complain with any justice that it’s a poorly designed spoon. It’s not. It’s a fork. You think we ought to have a spoon, instead, that’s what amendments are for.

    As MK points out, all we have are soup and a fork. In fact, the two-senators-per-state cannot be amended away as a practical matter, since it would require unanimous consent of the states. Now, you can say "That's the way it is," but don't try to claim it's a terrific idea. It's not.

Comments are closed.