The Easy Way to End the Filibuster: Follow the Rules

There’s an easy way to get rid of the filibuster at the beginning of 2011. If the Democrats fail to do it then, then they have no right to complain.

Today, Ezra Klein, following Paul Krugman a few days ago, kicks the campaign to end the filibuster into high gear, with an op-ed of his own, interviews with Senators Tom Harkin and Jeff Merkeley, SEIU President Andy Stern, and my friend and colleague Barbara Sinclair — all of which point to the dysfunctionality of the Senate and the need to change it.

Everyone should recall, however, that there is an easy way to do this: follow the rules.

A series of parliamentary rulings from Senate Presidents Nixon, Humphrey, and Rockefeller — not generally thought of as a radical, pro-Democratic cabal, held quite clearly that at the beginning of a congressional session, the majority of either House has the right to enact rules by a simple majority.  These rulings are so bulletproof that they were even endorsed by Orrin Hatch, at least when the GOP had the majority.  Hatch has never made intellectual honesty his strong suit, but at least he’s got a paper trail on this.

That means that the key time in January 2011.  I figure that the Democrats will lose a couple of seats total in this year’s midterms, which means that their legislative agenda is effectively over unless they change the rules, which they have every legal and moral right to do.  They should do so.

And if they don’t, then they have no right to complain — or ask for contributions in the future.

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.

13 thoughts on “The Easy Way to End the Filibuster: Follow the Rules”

  1. I'd dearly love to see a revision of the rules to make the requirement to end debate 60% of those present (with due notice – 90 minutes?). Want to stop progress by continuing to debate? Better care enough about it to stick around.

    A shift to decrease that number gradually would be OK but less important in my mind. Perhaps reduce the percentage required by 0.9 every three weeks, preserving the purpose of the filibuster to continue debate not to completely block.

  2. Alan Miller alludes to a critical problem with the current system, in which one senator is needed to do a filibuster but 50 need to oppose it to keep the session going and 60 — not 60% — to end it.

  3. What we see now in the Senate is just California's political disease finally spreading to the rest of the nation. Although it would in theory be easy to restore some sanity by changing the Senate rules, I predict the problem will prove to be as intractable as California's.

  4. "I predict the problem will prove to be as intractable as California’s."

    Unlikely. The problem will, however, persist until the Republicans take over the Senate and go nuclear on the Democratic minority, something likely to happen in the not-too-distant future. Figure 4-6 years of Democratic ineffectualness, followed by 2-6 years of spectacularly insane legislation coming out of the Senate, followed by a functional legislative body.

  5. Well, since the Democrats will still have their super-majority in 2010, this is something that can wait until 2011. What about a partial removal of the filibuster for Presidential appointments? Given that this is the area where Republicans have been the least ethical, the Democrats can put this through and spend a few months talking about reasons Republicans gave for holding up perfectly qualified nominees.

  6. On David C.'s point:

    While I'm ambivalent about the filibuster in general, I do think that Reid and the Dems could be a lot more

    aggressive about using their 60 to shut down all filibusters on presidential appointments, and at least the non-controversial judges. I don't think Reid could get all 60 to agree to a full cartel (i.e. on legislation), but I don't see why Nelson, Lieberman, and the rest wouldn't go along on the non-controversial stuff. See:

  7. I certainly agree about ending filibusters on appointments. The Senate has a duty to provide advice and consent, (Which includes voting nominees DOWN.) and a filibuster consists precisely of the Senate refusing to do so. In fact, I'd favor a constitutional amendment to see to it that nominees who don't get an up/down vote within some reasonable period are automatically approved, in much the same manner as laws automatically taking effect if the President doesn't affirmatively veto them.

    The case for ending filibusters of legislation is weaker; The Senate is under no obligation to pass anything at all, and certainly has no obligation to act on any particular piece of legislation.

  8. The question really is, how many Senators will the Democrats lose in 2010? The way they are going and the noxious bills they are passing to the house for conferencing it looks like they may lose heavily. One third of the Senate is up for grabs and Harry Reid looks like he is headed for retirement. Which can only be good news for Republicans and maybe good news for Democrats… then they can elect a "minority leader" with common sense (I know, I know, not likely but we can hope can't we?)

  9. One third of the senate is up for grabs, but only about 7 of the races are competitive. There aren't enough really close races for the Republicans to take back either chamber–even with the justified wrath people feel toward the Democrats right now. I think that the memory of Republican governance is too fresh for them to expect many wins no matter how obviously the Democrats are walking the same path towards doom. My bet is that the races will be tight, Republicans will pick up 2 or 3 seats in the Senate, and Obama's legislative agenda will be completely shut down unless something is done about the filibuster.

  10. Unfortunately, the Senate rules state that, "The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules." So the approach Zasloff advocates doesn't involve following the rules, it involves following a parliamentary ruling that contradicts the rules.

    That said, I don't think there is any Constitutional basis for believing that Senate rules continue from one Congress to the next, so if the Democrats were to decide that the current rules don't carry over into the next session, they would be going against tradition but sticking to the Constitution.

  11. Mr Zasloff —

    Domyou have reason to believe that 51 Senators favor, or could be induced to favor, changing the Senate rules to throttle filibusters? I doubt it, Both centrist Democrats and centrist Republicans naturally favor the status quo, since it empowers centrists.

  12. Given the record frequency with which the Republican minority is using the filibuster, a majority of Democrats might decide some reform is needed, even if it's reducing the number needed to stop a filibuster.

  13. A possible compromise just struck me, with caveats I'll state after the proposal: reduce the number of votes to 51 — but require the vote to be repeated on the second and third REAL days thereafter. Then go with the majority. My first caveat I've already touched upon: "real days," not the legislative fiction of dismissing the chamber then reconvening one minute later under the pretense it's a different "day." I mean wait until after midnight into the second day then until after midnight into the third day. The second caveat is to allow NO discussion AT ALL about the matter in dispute until after all three votes have been cast.

    This would give Senators a chance to think over their original vote and to either change or to build their defenses of their choice. By requiring the passage of time, they can reflect more calmly than having 30 seconds to decide.

    I do agree with suggestions regarding easing up on Presidential appointments. Any President ought to be given considerable latitude in nominating whom he wishes. And I personally feel that debates regarding ideology ought to be eliminated, a conclusion I reached after watching the circus of the confirmation hearings of now-Justice Sotomayor, during which some people argued as if Supreme Court justices are traditionally without personal points of view — an impossibility for anyone, unless they're comatose at birth and remain so for however long they live (and I'm being serious about that, not flippant).

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