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Filibuster Reform: Is The Time Right?

Kevin Drum agrees with Duncan Black that it’s fine for Republicans to oppose Barack Obama and the Democrats. He adds, though, that “The filibuster was never intended to become a routine requirement that all legislation needs 60% of the vote in the Senate to pass. But that’s what it’s become. It’s time for reform.”

Steve Benen and Matt Yglesias agree.

I’m not sure where those four were on the issue when the Republican majority was pushing towards the so-called “nuclear option” when Democrats were blocking votes on President Bush’s judicial appointees.  But, seeing as how I was in favor of the idea then and no intervening facts other than the inconvenience for my political preferences have changed, I think they’re right.  And, as Matt notes, the problem has gotten progressively worse since the Republicans took over the minority status.

I don’t now — nor did I then — oppose the filibuster absolutely.  I agree with Donald Douglas that it’s a valuable check on majority tyranny.   But it shouldn’t be nearly so routine as it’s become in recent years.  Benen suggests:

Maybe the number can be lowered from 60. Perhaps there can be some kind of limit on the number of filibusters (kind of like NFL coaches having a limit on how many times they can challenge a referee’s call on the field). Maybe senators can be forced to actually filibuster bills, the way they used to before it became easy. Of course, the chamber can also scrap the filibuster altogether.

The NFL Challenge-style option is relatively novel but actually strikes me as a good solution.  (Perhaps if they successfully challenge two bills, they get a third!)  And, certainly, I like the idea of forcing real filibusters. But something other than the present system of unlimited veto power of the minority party makes sense.

And this is a good time to push for such a move.   The Republicans have had the shoe on the other foot within very recent memory, so they may be more amenable to the idea than usual for a minority party.  And the Democrats have been in the minority recently enough that they should be amenable to something less than ending the filibuster outright.

UPDATE: As numerous commenters point out, the numbers are subject to gaming.  So, an increase in filibusters may reflect some combination of more willingness to use the practice on ordinary bills and parliamentary maneuvering to make filibustering more necessary.  An NFL Challenge system wouldn’t work, then.

I should note, too, that I have no objection to the implied Republican filibuster of the stimulus bill which required the Democrats to therefore put together 60 votes.  Something that massive and controversial is precisely the sort of thing for which 50 percent plus 1 shouldn’t be enough.

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About James Joyner
James Joyner is the publisher of Outside the Beltway, an associate professor of security studies at the Marine Corps Command and Staff College, and a nonresident senior fellow at the Atlantic Council. He's a former Army officer and Desert Storm vet. He has a PhD in political science from The University of Alabama. Views expressed here are his own. Follow James on Twitter.

Comments

  1. You must also credit the majority for part of the stimulus in filibusters as they have become downright vindictive towards the minority and somewhat out there with the legislation they are ramming down the majority’s collective throat.

    OT – heard Bill Clinton give a speech today. He is bright, articulate, able to think on his feet, full of wonky statistics, and very full of himself with just a bit of a selective memory. He did give an excellent defense of the stimulus package, albeit one I don’t share since I differ with him on certain fundamental assumptions. Nonetheless, it is easy to see why he was so popular.

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  2. The idea of a a number of “free” filibusters is interesting, but it is likely to be gamed. For example, bring up bills to provoke filibusters, then steamroll legislation for later. Perhaps something with the number increasing or decreasing based on success. So if you fail to close debate with 60 votes, then the next time you need 59 to close debate (aka stop the filibuster). Likewise, closing debate with 60 means you need 61 next time. This would allow the number to adjust incrementally (with some stop limits). Winning one vote makes the next one harder. So you develop legislative momentum that in turn is self correcting.

    Even more, I would suggest sunset laws that based on the number of positive votes sets the maximum number of years for the legislation lapses and has to be re-voted.

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  3. just me says:

    I am not keen on the idea of doing away with the filibuster-although I do not think it should be used to stop nominations. But I think the filibuster has a place when it comes to legislation, although I did say then and I think now that when a party chooses to filibuster they should have to actually have to physically filibuster with their guys camped out and ready to give speeches until the other party sways enough votes to stop it.

    Removing the ability to filibuster from the minority party will essentially take away any power they have to influence legislation.

    The only changes I would like to see to the rules are to prohibit filibusters of nominations and to make senators actually filibuster. Requiring them to be present and to do the filibuster the old fashioned way would I think be just as likely to make them pick battles wisely than to remove the ability entirely and remove their ability to influence legislation.

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  4. Tlaloc says:

    Joyner,
    It actually sounds like you and Kevin Drum et al are talking about two different things. You seem to object to the use of the filibuster in regards to a specific issue (judicial appointments) whereas their objection has to do with the frequency of use (which has grown enormously since the republicans lost power).

    I personally think that bringing back real filibusters is the correct solution, and repubs should go for it since it’s a hell of a way to slow down the machinery of government.

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  5. Bithead says:

    I think the whole thing can be discounted on the basis of the following question;

    Where in the blink was their objection to filibuster when they were the vast minority? Seems to me there just objecting to tools when they became useful to the party opposite.

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  6. physics geek says:

    The number 60 isn’t magical. In fact, it isn’t the original number required for cloture. It used to be 67? I can’t recall exactly. The number was changed procedurally by Democrats to prevent slowly increasing numbers of minority GOPers in the Senate from filibustering.

    Funny, but I don’t remember Drum bitching about how the filibuster was slowing things down when the Democrats were in the minority. I guess that, maybe, he cared a little bit less back then.

    As for the theory that the filibuster is being overly used these days, I believe that this can be tied to the diminishing number of conservative Democrats and/or liberal Republicans in the Senate. If everyone in each party walk in lockstep, you have no incentive to reach out to people of differing ideology, which means that the minority party has no recourse except the filibuster. Frankly, despite opposing its use to stop judicial nominations, I completely support the ability to filibuster, regardless of who is in charge. That some cannot, I believe, does not speak well of what actually motivates them.

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  7. ggr says:

    Every party is against the filibuster when they are in power, and for it when they’re not. But I think they should actually have to carry it out on the floor, if only for entertainment value. In the days of youtube I think there’s potential for some pretty amusing compilations.

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  8. The more I think about this, the more I am open to just about any reform. The sole caveat is that the minority party gets to decide if the change takes effect immediately or when the senate next changes minority. A change that would benefit the minority would take effect immediately. A change that would benefit the majority would only take place when the majority changes. Thus we would likely see senators framing what would be the best solution they could come up with knowing that it would be a “You cut and I will choose” scenario for the current minority.

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  9. Old wine in new bottles…

    Apropos the recent return of debate over the filibuster, I’ll just point you to the Signifying Nothing archives for my proposed reform thereof: What I’d do: tweak the Senate rules slightly, to require 2/5+1 to vote to continue debate upon a call fo…

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  10. Joe R. says:

    And, as Matt notes, the problem has gotten progressively worse since the Republicans took over the minority status.

    Perhaps that only means that Democrats are introducing more objectionable legislation. Perhaps not, but I wouldn’t use the graph to automatically draw the conclusion of Republican abuse.

    The NFL Challenge-style option is relatively novel but actually strikes me as a good solution.

    Novel, yes. Good, not so much. As YAJ says,

    The idea of a a number of “free” filibusters is interesting, but it is likely to be gamed. For example, bring up bills to provoke filibusters, then steamroll legislation for later.

    If one side–EITHER side–started pushing through bad bill after bad bill, there would be no way to stop it.

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  11. MM says:

    I’ve always felt that the filibuster should require actual filibustering. If you’re that passionate about opposing the legislation, then you should be willing to sit there all night and read the phone book aloud.

    Otherwise, abolish it and change the rules of the senate to require a supermajority of 60% of present legislators for a bill or a nomination to pass.

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  12. davod says:

    I find it ironic that we are discussing the fillibuster after Congress just passed a bill where just about everyone admits they didn’t read the contents.

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  13. just me says:

    I should note, too, that I have no objection to the implied Republican filibuster of the stimulus bill which required the Democrats to therefore put together 60 votes. Something that massive and controversial is precisely the sort of thing for which 50 percent plus 1 shouldn’t be enough.

    James I think you and others should note that the 60 vote majority requirement had nothing to do with a threat of filibuster, but because the rules require that this kind of deficit spending measure receive a 3/5′s majority to pass. Senate rules themselves required the 60 votes. Granted the GOP may have been threatening filibuster, but with or without a filibuster threat 60 votes were going to be required for passage.

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  14. Jim says:

    Funny….back in 2004 and 2005 I remember Senator Bryd state the filibuster was the bedrock of the Senate. All these figures who want to get rid of it now were dead set against the ‘nuclear option.’ It does show how morally bankrupt they are but they should remember that eventually Republicans will be in the majority again. When that happens I expect a new found reverence for it.

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  15. Tlaloc says:

    Perhaps that only means that Democrats are introducing more objectionable legislation. Perhaps not, but I wouldn’t use the graph to automatically draw the conclusion of Republican abuse.

    I’ll take it you were asleep for the entire bush administration…

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