Democrats Lack Votes For Filibuster Reform

Much to the disappointment of Ezra Klein and others, it's unlikely that Democrats will have the votes necessary to change the filibuster when the 112th Congress convenes.

As James Joyner noted yesterday, Ezra Klein and others have been pushing Democrats to reform the filibuster in order to make it easier for legislation to get through the Senate. For the moment at least, though, it appears that Democrats lack the votes even to invoke the so-called “nuclear option”:

Senate Democrats do not have the votes to lower the 60-vote threshold to cut off filibusters.

The lack of support among a handful of Senate Democratic incumbents is a major blow to the effort to change the upper chamber’s rules.

Democratic leaders in both the House and Senate are pushing for filibuster reform at the start of the new Congress next year.

Five Senate Democrats have said they will not support a lowering of the 60-vote bar necessary to pass legislation.
Another four lawmakers say they are wary about such a change and would be hesitant to support it.

A 10th Democrat, Sen. Carl Levin (D-Mich.), said he would support changing the rule on filibusters of motions to begin debate on legislation, but not necessarily the 60-vote threshold needed to bring up a final vote on bills.

Not surprisingly, many Demcoratic Senators recognize the fact that, while the filibuster is a  pain now, it could prove useful in the future:

“It won’t happen,” said Sen. Dianne Feinstein (D-Calif.), who said she would “probably not” support an effort to lower the number of votes needed to cut off filibusters from 60 to 55 or lower.

Sen. Daniel Akaka (D-Hawaii) echoed Feinstein: “I think we should retain the same policies that we have instead of lowering it.
“I think it has been working,” he said.

Sen. Mark Pryor (D-Ark.) said he recognizes his colleagues are frustrated over the failure to pass measures such as the Disclose Act, campaign legislation that fell three votes short of overcoming a Republican filibuster Tuesday.

“I think as torturous as this place can be, the cloture rule and the filibuster is important to protect the rights of the minority,” he said. “My inclination is no.”

Sen. Jon Tester, a freshman Democrat from Montana, disagrees with some of his classmates from more liberal states.

“I think the bigger problem is getting people to work together,” he said. “It’s been 60 for a long, long time. I think we need to look to ourselves more than changing the rules.”

Sen. Ben Nelson (D-Neb.), who is up for reelection in 2012, also said he would like the votes needed for cloture to remain the same.

“I’m not one who think it needs to be changed,” he said.

And, they’re right. The filibuster as it exists has been in place for decades and has served very well it’s primary function of ensuring that the minority has the voice it was intended to, and to ensure that the Senate serves it’s intended function of putting a brake on the populism of the House of Representatives.

This is a concept that James Madison communicated quite well when spoke of the reason why the Senate provided equal representation to the states regardless of size in Federalist No. 62:

[T]he equal vote allowed to each State is at once a constitutional recognition of the portion of sovereignty remaining in the individual States, and an instrument for preserving that residuary sovereignty. So far the equality ought to be no less acceptable to the large than to the small States; since they are not less solicitous to guard, by every possible expedient, against an improper consolidation of the States into one simple republic.

Another advantage accruing from this ingredient in the constitution of the Senate is, the additional impediment it must prove against improper acts of legislation. No law or resolution can now be passed without the concurrence, first, of a majority of the people, and then, of a majority of the States. It must be acknowledged that this complicated check on legislation may in some instances be injurious as well as beneficial; and that the peculiar defense which it involves in favor of the smaller States, would be more rational, if any interests common to them, and distinct from those of the other States, would otherwise be exposed to peculiar danger. But as the larger States will always be able, by their power over the supplies, to defeat unreasonable exertions of this prerogative of the lesser States, and as the faculty and excess of law-making seem to be the diseases to which our governments are most liable, it is not impossible that this part of the Constitution may be more convenient in practice than it appears to many in contemplation.

Thanks to the passage of the Seventeenth Amendment and other changes in American politics over the past two centuries, the “protection of the states’ purpose of the Senate has been muted somewhat, but the Senate still plays the role that Jefferson and Washington anticipated it would:

The “Senatorial saucer” conversation between George Washington and Thomas Jefferson is part of U.S. Senate legend. Jefferson had returned from France and was breakfasting with Washington. Jefferson asked Washington why he agreed to have a Senate.

“Why,” said Washington, “did you just now pour that coffee into your saucer before drinking it?”

“To cool it,” said Jefferson; “my throat is not made of brass.”

“Even so,” said Washington, “we pour our legislation into the Senatorial saucer to cool it.”

It’s unclear if this conversation ever actually took place, and it’s probable it didn’t, but it nonetheless describes quite aptly the role the Senate, and the filibuster, plays in our system. There’s no reason to change it.

FILED UNDER: Congress, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. I would argue that the filibuster (and this is not based on a partisan position or a policy preference position) goes well beyond the function you describe above. The very fact that laws must be passed twice in identical forms and the fact that the representational basis of the Senate is substantially different from the House means that the functions that Madison describes above (and as the likely apocryphal saucer conversation) will be achieved. Indeed, the filibuster did not develop until quite a while after Madison wrote the above-quoted words, so what we are seeing now is not what he was describing.

    The filibuster has become a minority veto over legislation, which strikes me as problematic in a representative democracy, This is especially problematic because not only can a minority of Senators effectively veto legislation, those Senators might represent a relatively small minority of the overall population.

    I could live with the filibuster if it was, in fact, truly extended debate. It has become a procedural process that means it is extremely easy to use. A minority veto should not be that easy to deploy.

  2. Steven.

    You raise fair points.

    Ideally, I would prefer to see filibusters really be filibusters. If that were the case, I would suspect that you’d see much more bipartisan cooperation on legislation in the Senate, and far less use of the filibuster.

    But, Senators are lazy and they’re not going to want to have to actually replicate Mr. Smith Goes To Washington

  3. just me says:

    I like the filibuster and I think it serves a good purpose. And I think the fact that it can be frustrating to the majority party is a good thing.

    I wouldn’t mind seeing some changes though.

    I don’t think the minority party should be able to filibuster appointments. I think a simple majority vote is all that should ever be needed. The reality is more often than not a filibuster over an appointment is due to philosophical differences rather than the actua competence and qualifications of the nominee.

    I would also like to see them require those filibustering to truly filibuster. I think this more than anything would make the minority party think about what legislation really needs to be filibustered. If they have to camp out over the weekend I doubt they are going to do it over a minor bill. Basically I think the battles taken on would be chosen more wisely.

    Oh and while it isn’t really a filibuster I think the practice of holds needs to stop, or at least be modified so that a hold can’t be indefinite, but is limited in time and the purpose is intended for a congress member to make the case for their position then let the committee take their vote. I think the practice of holds bothers me far more than filibustering. I imagine there aren’t the votes to really change this one either though, because it puts a lot of power into one congress member’s hands, and if anything congress members like their power.

  4. Brummagem Joe says:

    “The filibuster has become a minority veto over legislation, which strikes me as problematic in a representative democracy, This is especially problematic because not only can a minority of Senators effectively veto legislation, those Senators might represent a relatively small minority of the overall population.”

    Essentially this is true. We’ve been through similar long periods on our history before and it usually gets resolved usually when an electoral penalty starts ot be paid (although there was that little disturbance in the 1860’s). At the moment the Republicans are abusing the system and as Doug say the Democrats don’t have the votes to change it. Many of them don’t wish to change it, I don’t, but there’s a limit to how long this abuse can go on for. I see no inclination on the part of Republicans to modify their behavior and of course they’ve just provided the Dems with a rock solid alibi for similar conduct should the Republicans ever regain control of the senate. Given the population, and state wealth disparities and wealth transfers involved, this is going to become a considerable issue if it goes on too long.

  5. PD Shaw says:

    If the filibuster were removed we would have even more instances, like we did with the healthcare reform bill, in which the legislation is crafted by the Majority leader in chambers and introduced a few days before it is passed. I’m sure Republicans have been guilty of such stealth legislation and debate.

    So, I disagree with Prof. Taylor that the filibuster is necessarily less democratic. It can be, but it also provides opportunity for public input into the legislative process (in a way admittedly not contemplated in Madison’s time).

  6. sam says:

    I’m for keeping the filibuster — on condition that the Senate returns to its traditional form:

    In the modern filibuster, the senators trying to block a vote do not have to hold the floor and continue to speak as long as there is a quorum, although the Senate Majority Leader may require an actual traditional filibuster if he or she so chooses. In the past, when one senator became exhausted, another would need to take over to continue the filibuster. Ultimately, the filibuster could be exhausted by a majority who would even sleep in cots outside the Senate Chamber to exhaust the filibusterers. Today, the minority just advises the majority leader that the filibuster is on. All debate on the bill is stopped until cloture is voted by three-fifths (now 60 votes) of the Senate. Some modern Senate critics have called for a return to the old dramatic endurance contest, arguing that the ease with which a nominal “filibuster” can be staged (compared to the real suspension of business) has led to a progressively wider use of it and has contributed to perceived “gridlock”. http://en.wikipedia.org/wiki/Filibuster_in_the_U.S._Senate

  7. PD Shaw says:

    sam, I think that’s one way of dealing with the complaint that cloture is being denied in bad faith; there may be others like public outcry.

  8. sam says:

    I agree, PD. And I’d like to point out that every time some blog does a story on the filibuster, it always includes that picture of exhausted Senator Smith engaging in a traditional filibuster.

  9. Brummagem Joe says:

    PD Shaw says:
    Wednesday, July 28, 2010 at 11:58
    “If the filibuster were removed we would have even more instances, like we did with the healthcare reform bill, in which the legislation is crafted by the Majority leader in chambers and introduced a few days before it is passed.”

    Hardly, the bills were their respective committees for months on end and spent a considerable amount of time on the floor in both houses before passage. Then they were in conference for weeks before final passage. The whole thing took over a year and most people were beginning to wonder would it ever end. What was in the final bill that that had not been endlessly debated in one forum or another beforehand?

  10. steve says:

    ““If the filibuster were removed we would have even more instances, like we did with the healthcare reform bill, in which the legislation is crafted by the Majority leader in chambers and introduced a few days before it is passed.”

    Let me second Brummagem. This topic was debated in the election, held up by the gang of 6 for months, and endlessly discussed. I would think that if there were no filibuster, or cloture was set at a lower number, it would have forced the opposition to participate. As things are now, there is zero motivation to cooperate, just filibuster. If the other side has the ability to pass the bill, participation would allow modification in return for some political cover. We regard a 55% majority in presidential elections as a landslide. Heck, even with a numerical minority of votes, winners have been known to claim that they had a mandate. Let cloture reflect these beliefs.

    Steve

  11. I would think that if there were no filibuster, or cloture was set at a lower number, it would have forced the opposition to participate. As things are now, there is zero motivation to cooperate, just filibuster.

    This hits on a key problem that is created by the structure of the current rules: the incentive is for obstruction, not negotiation or even true debate.

  12. PD Shaw says:

    steve, you subsitute the word “topic” for bill. You just want topics to be debated in Congress, not actual bills?

  13. PD Shaw says:

    and steve, I think you have it backwards on cooperation with the minority party. The House of Representatives works on a simple majority and they don’t solicit minority views unless it’s convenient. It’s the Senate, where for several reasons including the filibuster, you are more likely to find bi-partisan efforts.

  14. Brummagem Joe says:

    “What was in the final bill that that had not been endlessly debated in one forum or another beforehand?”

    Still waiting for an answer. I guess it’s easier to talk about terminology.