Republicans won the Senate by promising to reform a dysfunctional Congress. Yet with their new majority secure, Republicans are considering rolling back recent filibuster changes that reduced the number of votes required to invoke cloture on executive and most judicial nominees to a simple majority.
This debate asks the wrong question. Instead, Republicans should resist returning to a broken confirmation process and focus on further fixing the filibuster. The start of the next Congress is an ideal opportunity to comprehensively reform filibuster rules — for legislation and nominees — and create a process that protects minority interests without creating an effective minority veto on all Senate activities.
By most measures, today’s Senate is barely functioning as a legislative body. Since 2009, the Senate has passed fewer bills during each two-year session of Congress than at any other point since 1947, the first year data is available. The Senate has also passed fewer of its own bills. From 2009 to 2010, the percentage of bills passed fell below 5 percent for the first time since 1947 — and has stayed there since.
Filibuster use — and abuse — is a major contributor to this dysfunction. The filibuster has blocked votes on everything from raising the minimum wage to reforming government surveillance.
Ironically, it has often discouraged public debate and legislative accountability by preventing votes from even reaching the floor and moving negotiations behind closed doors.
It wasn’t always like this. Due to a procedural change in the 1970s, a senator can filibuster a bill indefinitely without saying a single word. That change, coupled with the rise of partisan polarization and the breakdown of Senate collegiality, made filibuster use skyrocket in recent years. Prior to 1971, the number of cloture motions per Congress (a common measure of the filibuster) never exceeded single digits. In the 1970s, the average number rose to 32; by the 2000s, it was 95. In this Congress, the Senate has had 73 cloture motions filed to date on legislation alone (excluding nominations and constitutional amendments).
There is a bright spot: Last year’s filibuster changes resulted in the Senate successfully considering nominees for up-or-down votes, meeting its constitutional duty to provide advice and consent on presidential nominees. The impact has been particularly striking for judicial nominees, where confirmation rates have caught up with rates under Presidents George W. Bush and Bill Clinton, increasing the capacity of the courts to resolve disputes and protect our rights.
Yet, even the November 2013 reforms addressed only one aspect of the filibuster — the super-majority requirement for cloture on nominations. They did not address other ways the filibuster can obstruct the consideration of nominees, such as the use of the post-cloture debate period (a misnomer, since no actual debate must occur) to use up floor time. Nor did they consider alternative mechanisms for giving voice to minority interests in the consideration of nominations, particularly for lifetime judicial appointments. And, of course, they did not alter the use of the filibuster for legislation.
The start of the next Congress in January is an opportunity to rewrite the rules. It is time to comprehensively reform the filibuster for nominees and legislation, and craft Senate procedures that facilitate both deliberation and substantive decision-making. These reforms must place costs on obstruction.
Most importantly, the rules should require senators to stay on the floor during a filibuster or post-cloture debate period and actually debate. Popular images of the filibuster involve senators speaking late into the night, reciting from the Bible or telephone book to slow consideration of a bill and publicize their opposition. Today’s filibuster looks nothing like that.
Requiring senators to stand up and talk would promote accountability, foster deliberation and give voice to minority interests — while also requiring the minority to expend time and energy to use the filibuster. Indeed, introducing a talking filibuster would make the preservation of a supermajority requirement for cloture far less concerning.
Other reforms include shifting the burden to require at least 40 votes to sustain a filibuster on legislation, rather than requiring 60 votes to break one, or reducing the number of votes required to invoke cloture. Finally, the rules should guarantee the minority party the right to offer germane amendments to legislation, thus ensuring a meaningful opportunity to participate in the legislative process.
Americans know our government is not working. Congress’ approval rating currently sits at only 14 percent, while 2014 turnout rates were the lowest since 1942. The Senate must reform its rules and restore the higher chamber into a functioning body in which Americans can be confident.
Alicia Bannon serves as counsel in the democracy program at the Brennan Center for Justice at NYU School of Law.