Monday, January 3, 2011

Taming the Fili

It's a new year, and hopefully there will be a new paradigm in play in the Senate starting in a few days.  While there were plenty of accomplishments during the 111th Congress, a lot more progress would have been made if Republicans had not obstructed Obama and the Democrats at every opportunity.  What enabled them to do so was Rule XXII of the Senate of the United States of America, which provides for unlimited debate.  When a senator exerts this privilege, it is called a filibuster.  Contrary to common wisdom, the current rules do not require a Senator or Senators to hold the floor and speak to maintain a filibuster.  That's why Bernie Sanders' 8 hour and 37 minute speech was a newsworthy event.  Instead, a Senator simply has to indicate that s/he opposes a certain vote.  It's then incumbent on the rest of the Senate to override the objection with a vote for cloture.

If that sounds backwards, that's because it would be in most legislative chambers.  Because the Senate has seen itself as a club of wise old men supervising the country (though the wise part is not readily evident to outsiders), it has been able to operate under a rule, Rule XXII, that presumed a desire for consensus.  But with the increasing radicalization of the Republican Party, their desire for consensus has disappeared.  The Senate is now just like all other democratic legislative bodies on the planet, where conflict is present at all times.  The Republicans were able to exploit a rule created during a less divisive time to frustrate what would otherwise be considered a healthy majority held by the Democrats.

A lot of Democrats and a lot of Democratic Senators are deeply frustrated with what the Republicans did, which is why all returning members are interested in some kind of reform.  There has been some hand-wringing in various comments sections over losing the ability to block bad legislation if the Republicans take over the Senate in the future, which is likely to happen in 2012.  But I think it's important to take the long view.
  1. The filibuster has rarely been used for good.  The majority of filibusters, virtual or real, have been attempts to block needed progress.  Progressives have used the filibuster quite rarely to block something bad.
  2. It gives too much power to individual senators.  This was seen very clearly during the health care reality show debate, when conservadem Ben Nelson was bribed very publicly to sign on.  When every vote is always critical, the marginal vote can extract concessions at whim.
  3. It decisively tips power to conservatives.  Progressives already face the difficulty of persuading people to Do Something.  It's much easier to Do Nothing, which is usually what conservatives favor.  The resulting compromise is usually to Do Something Half-Assed in order to meet the demands of the last Senator to sign on.
  4. The Senate's election pattern makes it small-c conservative enough.  Again, there's no reason to make it harder to Do Something.  The rolling replacement cycle makes the Senate inherently conservative in that it doesn't fully reflect the current mood of the voting population.  That was the intent of the Framers of the Constitution, unlike the filibuster.
  5. If the filibuster is such a great idea, why not have the House adopt it?  Of course, if something like rule XXII was adopted by the House, the chamber would be full of fail like the Senate was, but to a greater degree because it has so many more members.  That's why the House eliminated unlimited debate in 1842.
I also think it's important to review the legal situation.  Here's how I see it (N.B. - IANAL).
  1. It's unconstitutional.  Article 1, Section 3, Clause 3 of the Constitution reads, "The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided."  To me this says that all votes are to be decided by a simple majority, except for those explicitly listed in the Constitution as requiring a super-majority.  Rule XXII usurps the power of the Veep by requiring a super-majority for cloture, which is done by a vote, usually a recorded one.  This is another one of those cases where it would have been helpful if the Framers had spelled out what they intended. But I see no indication that they intended for normal business to require more than 50%+1 in either chamber, so I think it's a reasonable assumption that a simple majority was intended.
  2. The continuing body argument is bunk.  The Senate's traditionalists have asserted that the chamber is a "continuing body" because a majority of its members are always holdovers from the previous two cycles.  The continuity of membership is used to argue that the Senate is always in session and is bound to the rules either set at the beginning of the session back in the depths of time, or as amended using the procedure currently in the rules.  In the Senate's case, rule changes require 60 votes to come to the floor and 67 votes to pass.  (This supposed continuity doesn't exist in the House, where it is agreed by all that the rules are wiped at the end of each Congress and new ones can be adopted by a simple majority at the beginning.)  However, nothing in the Constitution indicates the Senate continues between Congresses.  The pocket veto indicates the opposite, because Senate bills can die in the same manner as House bills.
  3. A quorum can do what it wants.  It was established long ago that the power of quorum in the Senate is unlimited as far as conducting normal business is concern.  Setting the body's rules is just one of several items of business it can perform.  As such, it's not possible for a simple majority of 50%+1 Senators to be able to permanently require future votes to pass with a super-majority of some arbitrary number.  Nor does it make sense.  If it were to be true, a particularly destructive group of 50%+1 legislators could set a requirement of unanimous consensus for passage, effectively blocking the body from doing anything at all in the future.  That would be an absurdity.  (Note that a rule or law passed during the normal operation of a body is different from super-majority requirements laid out in the basic organizing document, which in the Senate's case is the Constitution.  Such documents are usually agreed to by consensus because before their adoption there is no procedure to follow.  They also frequently set a super-majority for amendment, which is very high in the case of the Constitution.)
Clearly, I'm in favor of blowing the filibuster to smithereens.   But the Senate is unlikely to go that far, mainly because it would mean individual senators would lose a lot of personal power to the body as a whole.  However, it could chose between several options that fall short of elimination.  One is to simply reduce the requirement to 55.  Another is to make the requirement for cloture 3/5 of members present and voting, not 3/5 of all seated members.  A more complex proposal is to reduce the requirement each time a vote is taken, starting at 60 or 67 and counting down to 50%+1.  A rather different proposal from the first three is to shift the burden to the opponents by requiring them to have a certain number of people on the floor.  If the number of members falls below a certain level, cloture is automatically invoked.

There are also a couple of proposals that could be adopted in parallel the ones above.  The first is to limit filibusters to final passage, instead of allowing them at multiple points in the process.  The other is to end the so-called secret hold.  Both of these make sense and I suspect they will be adopted even if nothing else is changed.

As for the filibuster in general, I have no idea what the result will be, if anything.  There is some question as to whether it can be done at all, given the precedents the Senate chooses to apply to itself.  It may take some kind of negotiated settlement to make any changes.  While it is won't help pass better legislation because of the change of control in the House, reform still would mean that Obama's judicial and other appointees would no longer be held up at whim.  Streamlining that process may be the most important thing the Senate achieves during the next two years.

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