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Time to Reassess Filibuster to Keep Senate Functioning

I have addressed the filibuster issue many times in the past two decades, but it is worth addressing again. Several points are relevant.

[IMGCAP(1)]The first is the necessary but futile caution to activists to be careful what you wish for. For liberals who are foaming at the mouth to eliminate the filibuster: Imagine what the world would look like today had there been no Rule XXII in the last decade. There might be 100 more appeals court judges who are 35-year-old Federalist Society members, populating the policymaking courts for the next four decades.

The second point is that the problem now is less the rules and more the culture. The filibuster was never in its history used routinely as an obstructionist tool; it was always reserved for issues of great national moment, where a minority felt especially intensely; the application for less momentous issues was only an occasional phenomenon. Now it is routine and used, absurdly, on issues that end up passing widely or even unanimously, only to screw up the Senate schedule and keep it from doing anything.

In ordinary circumstances, with ordinary politics, a 60-vote hurdle can encourage bipartisanship and movement to the middle — but when the minority party decides both to employ the filibuster routinely and to demand party loyalty on all or most issues, it becomes much more divisive and much less legitimate.

Of course, the casual use of the filibuster and even more casual threat to use the filibuster is not entirely new, nor confined to one party. Another part of contemporary culture is the indulgence by the Senate and its leaders of the barely-lift-one-finger threat by individual Senators to automatically raise the bar to 60 or to kill bills or nominations in their tracks.

That brings us to the hold, which is a notice by an individual Senator to the leadership that he or she will filibuster a bill or nomination. Just as filibusters used to be relatively rare phenomena, holds were generally employed to give Senators time to muster their arguments or mobilize support for them, lasting for only a few weeks. Now, all 100 Senators use them to take hostages and either delay nominations for key positions for months or kill them altogether.

We have no systematic data, but I would wager that a majority of holds on nominations are pure hostages — imprisoned not because of anything they have done or said, but to gain leverage on something extraneous. I understand the desire by individual Senators to have some traction to get an administration to listen to them. But the damage to governance has gotten out of hand. To go months without heads of the General Services Administration and the Transportation Security Administration, to pick two prime examples, is outrageous.

So what to do? First, there is a small change in Rule XXII that would both make sense and help: Do away with the filibuster on a motion to proceed. There is no reason why any bill ought to have several hurdles, or why minority opponents should have multiple bites at the delay apple, with each one eating up many hours of debate.

Second, I will reiterate an idea I have pitched for a couple of decades. It is time to create a new two-track system for filibusters. For issues of great national moment, it should require a high number of public signatures (perhaps 30) of Senators to signal their willingness to go to the mattresses with extended debate. On those issues, the Senate ought to do just that — go to the mattresses by bringing the place to a halt and debating round-the-clock in the old-fashioned way.

On the second track would be all other issues or nominations — including individual holds. If fewer than 30 Senators are willing to sign publicly, those issues or individuals would go to a time-based sliding scale of votes required for passage or consent — 60 votes for two weeks, 55 for another two weeks and a majority thereafter.

The third change is related to the round-the-clock, bring-out-the-cot filibusters. There, the problem is that the burden is on the majority to keep its Members handy to respond at all hours to quorum calls to keep the body going. The minority can keep a couple of Members on guard duty and let everyone else sleep at home or relax in their offices. If a minority feels intensely enough about something, its Members should be sleeping on cots in hallways and disrupting their schedules and lives to make its point.

How to do that? Rules mavens should be thinking of innovative ideas. One way is to change the filibuster threshold from three-fifths of the whole Senate to three-fifths of those present and voting. There may be another adjustment required, to enable a cloture vote without days of notice, but that combination could keep the minority on its toes.

Reform ideas are fine — but they are academic exercises unless 67 Senators can agree to change their rules, a near impossibility. I have no doubt that Democrats are going to be tempted to contemplate their own version of the “nuclear option— after the 2010 midterm elections, something considered briefly in 1978-79 by the Carter administration and then-Vice President Walter Mondale.

Since its origins, the Senate has been considered a continuing body (after all, in each election, two-thirds of its Members do not have their seats contested). Thus, the rules in the body remain in effect — and those rules require two-thirds to invoke cloture for a rules change. Mondale considered taking the chair as President of the Senate and making a parliamentary ruling that the Senate is not a continuing body; rather, like the House, it has to adopt rules at the beginning of each Congress, and that can be done by majority action.

That might work — but like the nuclear option, it would be radioactive, with collateral damage that would reverberate for a long time, in a Senate where business is mostly conducted by unanimous consent.

Norman Ornstein is a resident scholar at the American Enterprise Institute.

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