New Rules For a New SenateDecember 27, 2010 - by Donny Shaw
After raw support, the most precious commodity in the Senate is time. All of you who have been following Congress with us are probably well aware of this. The rules of the Senate allow a single senator to express their opposition to a bill and, even if it is supported by the other 99%, force the chamber to spend up to 90 hours debating it before they can take a vote. This is why common-sense proposals, like requiring senators to file their campaign finance disclosure electronically rather than by snail mail (i.e. S. 482). Everyone wants this kind of stuff to pass, but because it’s easy to threaten to shut down all other activity in the Senate for 90 hours, they often get blocked by a senators who want to use them as vehicles for attaching their own, often more controversial, pet issues.
Believe it or not, the Senate has not always been like this. Only over the past four years has it become common practice for almost every bill, no matter how mundane, to come along with a threat to shut down the Senate for 90 hours of debate. Technically, it’s done via objecting to unanimous consent agreements and forcing the Senate to take a series of procedural votes, known as “cloture,” each requiring more than 2 days to “ripen,” a 3/5ths majority, and up to 30 hours of debate, on overcoming each stage of your objection. The graph at right shows the explosion in cloture votes beginning in the previous 110th Congress and continuing through the 111th Congress that just ended. Notice how the green line (cloture invoked) has ticked up along with the blue line (cloture filings). The net result here is a lot of wasted time, but it leads to a lot of good bills dying and big issues not getting debate.
Things don’t have to be this way; a fix is in the works. The entire Senate Democratic Caucus recently signed a letter in support of filibuster reform and Majority Leader Sen. Harry Reid [D, NV] is reportedly in active discussions on how to move forward.
The most likely option right now is that the Democrats will use their constitutional authority to set their own rules of procedure by calling for adoption of a new rules package on the first day of the next session. Senate precedent provides that the constitutional powers allow the Senate to reform their operating rules under a simple majority vote on the first day of the session. Technically, they could try to do this at any time, but the precedents make it more practical for them to do it on day one.
As for the actual reform, the leading proposal right now appears to be one from Sen. Jeff Merkley [D, OR] that would put an end to senators blocking bills from coming to the floor and force them to actually hold the floor if they want to kill a bill by eating up time. Ezra Klein explains the proposal:
Merkley starts with a simple observation: “The Senate’s original commitment to full and open debate has been transformed into an attack designed to paralyze and obstruct the Senate’s ability to function as a legislative body.” That leads to a principle that’s not often associated with reform of the filibuster, but perhaps should be: “Reforms should increase the ability of the minority party to participate in the process. Any approach that fails to take this approach will be viewed as a power grab and will be counterproductive.”
He goes on to recommend reforms of the process that will ensure that the Senate has more time and opportunities to both consider and amend legislation, with more members present for the proceedings, and with more of the focus on ensuring debate and discussion. Under his proposal, senators could no longer filibuster the motion to proceed to debate on the bill because that, after all, leads to less debate. They also couldn’t filibuster amendments, as that also leads to less debate and consideration. The opportunity to filibuster, rather, would be at the final vote, when there is a completed piece of legislation to debate.
Once a filibuster has started, Merkley would like to see it resemble the public conception of the practice. So rather than a private communication between members of the two parties’ leadership teams, it would actually be a floor debate — and a crowded one. The first 24 hours would need five filibustering senators to be present, the second 24 hours would require 10, and after that, the filibuster would require 20 members of the minority on the floor continuously. Meanwhile, there would have to be an ongoing debate: “If a speaker concludes (arguing either side) and there is no senator who wishes to speak, the regular order is immediately restored, debate is concluded and a simple majority vote is held according to further details established in the rules. … Americans who tune in to observe the filibuster would not see a quorum call, but would see a debate in process.”