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Filibuster Reform

February 12, 2010 - by Donny Shaw

The Democrats took over Congress in 2007 after twelve straight years of Republican control, and some would say that nothing really changed. The wars in Iraq and Afghanistan continue, climate change remains unaddressed, health care unreformed, it’s no easier for workers to form a union. But at least one big thing changed. As soon as the Democrats took over, filibustering in the Senate doubled in frequency.

You can see the explosion of cloture motions — the motion requiring 60 votes that is used to overcome a filibuster — on this chart.

After three-and-a-half years of record obstructionism, Sen. Tom Harkin [D, IA] has introduced legislation to reform the Senate’s filibuster process. He explained how his bill would work in a HuffPo blog post:

Currently, it takes 60 votes in the Senate to “invoke cloture” — in other words, to end debate on a legislative measure and bring it to a vote. My legislation would permit a decreasing number of Senators to invoke cloture on a given measure. On the first cloture attempt, 60 votes would be required. But, over a period of days or weeks, the number of votes required would fall to a simple majority of 51 Senators.

I want to emphasize that I am offering this bill with clean hands. I introduced the exact same bill in 1995, when Democrats were in the minority in the Senate. So this legislation is not about one party or the other gaining advantage. It is about the Senate, as an institution, operating more fairly, effectively, and small-d democratically.

Support from the Democrats leadership is mixed. Majority Whip Dick Durbin [D, IL] is supportive, but Senate Majority Leader Harry Reid [D, NV], who holds the keys to what comes to the Senate floor, is basically dismissive of the idea. Reid insists that Senate rules require 67 votes to change, and, realistically, that ain’t gonna happen.

There is another bill in the Senate to reform the filibuster (S.Res.396) that probably stands a better chance of passing. It was introduced by Sen. Tom Udall [D, NM] in January, and it’s being called the “Constitutional option.” He explained on Daily Kos:

Article I, Section 5 of the Constitution states, “Each House may determine the Rules of its Proceedings…” Yet, at the beginning of the 111th Congress, unlike in the House of Representatives, there was no vote on a package of rules that would govern the body for the two years that comprises a term of Congress. As a result, 96 of my colleagues and I (three senators had an opportunity to vote on the last change to the rules in 1975) are bound by rules put in place decades ago and make conducting the business of the Senate nearly impossible. […]

Even worse, the rules make any effort to change them a daunting process. Currently the rules for the Senate continue from one Congress to the next. However, as last modified in 1975, even attempts to change the rules can be filibustered, and in fact require an even greater threshold (two-thirds, or 67 senators) be met than for the regular business of the Senate.

When the authors of the Constitution believed a supermajority vote was necessary, they clearly said so. And while the Constitution states that we may determine our own rules, it makes no mention that it require a supermajority vote to do so. In addition, a longstanding common law principle, upheld in Supreme Court decisions, states that one legislature cannot bind its successors. To require a supermajority to change the rules, as is our current practice, is to allow a Senate rule to trump our U.S. Constitution and bind future Senates. This should not be.

His bill would reaffirm the Senate’s ability to set their own rules by a simple majority vote of 51. It states that “upon the expiration of the Standing Rules of the Senate at the Sine Die Adjournment of the 111th Congress, the Senate shall proceed in accordance with article I, section 5 of the Constitution to determine the Rules of its Proceedings by a simple majority vote.”

It isn’t intrinsically aimed at filibuster reform. Under the bill, future Senates would be able to change lots of Senate rules, or they would be able to keep them the same. That should make it less contentious than Harkin’s bill, which is important because I believe it would, ironically, require 67 votes to be approved.

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