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Senate Experts Argue to Save the Filibuster, Sort Of

Advocates and opponents of changing the Senate rules will find something to like in a new book hitting shelves next week that documents the history of filibusters.
In “Defending the Filibuster,” Richard Arenberg and Robert Dove outline their case for substantive reform without undermining the chamber.

The bipartisan duo push the case against an effort led by relative Senate newcomers Tom Udall (D-N.M.) and Jeff Merkley (D-Ore.) to change the chamber’s rules by a simple majority vote at the beginning of a new Congress.

Arenberg, a Senate Democratic aide for 34 years, and Dove, who rose through the ranks to spend 13 years as the Senate’s parliamentarian under Republican patronage, issue a warning to advocates of using the blunt instrument of a simple majority to tweak Senate rules.

“Do not succumb to the temptation to permit a simple majority to rewrite the entire Senate rulebook at the outset of every Congress. This is a slippery slope,” they write. “It will almost inevitably lead to strict majority rule of debate and amendment, turning the Senate into a smaller and less significant shadow of the House of Representatives.”

In making this caution, Arenberg and Dove allude to the lesser policy stature of the so-called upper houses of other bicameral legislatures. The question is whether the Senate has already gone too far down that road to pull back.

The authors push reformers to seek to move changes through regular order, instead of undermining the historical argument that the Senate is a “continuing body” because two-thirds of Senators are not up for election every two years. Under the existing rules, a two-thirds supermajority can be required to cut off debate on rules changes.

Reformers, however, can take some solace as Dove and Arenberg agree with their view that there are provisions in the current rules that promote dysfunction.

The authors call for making the motion to proceed to bills non-debatable, which is to say, not subject to a filibuster. That position has gained some traction in recent years; Majority Leader Harry Reid (D-Nev.) said earlier this year that he would try to make such a move if Democrats maintain the majority in the next Congress. However, Reid has indicated he would do so using a simple majority, not the two-thirds majority generally required.

As the authors note, the Majority Leader could avoid cloture on proceeding to bills at any time by using an arcane process of morning hour debate.

“This route has, for some reason that escapes us, fallen out of favor with modern majority leaders (since Robert Byrd used it),” the book says, before noting that treaties and nominations are already protected from filibusters on motions to proceed.

Senate leaders routinely skip over the morning hour debate, but motions to proceed offered during the morning hour cannot be filibustered. But if Reid or another Majority Leader used the tactic Dove and Arenberg propose, the minority would be empowered to delay the Senate’s other business by forcing votes on routine procedural matters, such as on approving the journal of proceedings, among other things.

The book spends a chapter on the related problem of “filling the amendment tree,” the process by which the Majority Leader uses his procedural advantage to block other Senators from offering unwanted amendments. The current Republican minority has criticized Reid for abusing the practice to avoid holding floor votes on politically charged matters that could put Democrats facing tough re-election contests this November in a vulnerable position.

On that point, the authors side with Republican position, saying “the right of the minority to participate in the amendment process must be protected.”

Arenberg and Dove thought that the so-called “gentleman’s agreement” to curb filibusters of motions to proceed and filling of the tree that Reid and Minority Leader Mitch McConnell (R-Ky.) entered into at the start of this Congress might actually succeed. In reality, neither side changed its tune all that much as the elections drew closer.

In one other area, the authors actually favor action that could slow down the Senate. They want to overhaul the budget reconciliation process, which has been exploited by both parties as a means around the 60-vote requirement to overcome filibusters.
The 2001 and 2003 tax cuts under President George W. Bush and the 2010 health care law were implemented with the assistance of the expedited budget process.

“Reconciliation was never intended to serve as a gaping hole in the regular Senate rules, including filibusters; was never intended to increase the size of deficits; and certainly was never intended for the passage of major authorization bills.”

That Dove believes budget reconciliation has gone too far should come as no surprise. In a story that Roll Call broke in 2001, then-Majority Leader Trent Lott (R-Miss.) pushed Dove out of the parliamentarian’s job in the midst of a dispute about whether a budget resolution contained extraneous material.

Arenberg and Dove use a mix of scholarly research and personal anecdotes gathered in decades of Senate service to build their case. Both men now work in academia.

Despite decades working in the weeds of Senate process, the authors manage to craft a book that should be more accessible to people interested in the function of government but who may not have read or understood all 1,608 pages of “Riddick’s Senate Procedure.”

Before reaching that conclusion in the book, the authors detail the history of attempts to write and rewrite rules that govern filibusters, dating to Vice President Aaron Burr’s farewell address as an important early point in the Senate’s tradition of unlimited debate.

As those familiar with the origins of the filibuster know, before 1806 the Senate had a previous question motion that could theoretically end debate on legislation. The authors of the book point out that after the Senate changed its rules in response to Burr’s suggestions, the chamber functioned for more than a century with no way to limit debate until the first cloture rule in 1917.

Regardless of whether you agree with their conclusions, the book will be a must read for anyone who wants to be a part of the debate about how to improve the function of the Senate.

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