"Avast ye debate pirates!" ~The 2011 Filibuster Reform Compromise

Last week, the Senate took up a debate that can only reasonably take place once every two years: whether to change the Senate rules, specifically those pertaining to the filibuster and the cloture needed to end one.

The romantic in me loves the filibuster. One senator showing the resolve to stand up for his (or her) beliefs and argue his cause. Every one can have his voice heard. And then the process continues, either the lone senator has rallied support, or he hasn't.

But, alas! That's only how the process works in my head. Nowadays the filibuster has been twisted into a stall tactic used to block even the most banal of bills. Either the minority has its way or no legislation makes it to an outright vote. Though such tactics have led most observers to agree that some sort of reform is needed, no one is saying that the Senate should get rid of the filibuster in its entirety.

In 1975, a similar point was reached. The senate majority invoked a 1957 decision by then Vice President Nixon and led a powerful compromise that took the constitutional (aka: "nuclear") option off the table in exchange for lowering the threshhold of votes needed to pass cloture from two-thirds (67 of 100) to the current three-fifths supermajority (60 of 100), excluding special cases such as with international treaties. Simple, right? After the change, another fifteen years of relatively civil discourse prevailed until the early nineties when the filibuster came back into vogue.

Some filibuster critics would like this fix to be applied again, lowering the cloture requirement to 55 of the current 100 senators. Others have taken a more complicated route in proposing that for each successive vote on a cloture motion, the cloture level be decreased by two senators until either a majority passes the cloture motion or the measure is withdrawn. I think lowering the cloture level any more would be ill-advised. The Senate is meant to stand as a more deliberative counterweight to the wild flails of the House. If a slim majority can pass any legislation in this, the slower house of Congress, then the party in power could pass anything it wishes with no say from a substantial section of the public's representatives.

A better option is to make the filibuster more like its romanticized image. If you have an issue with the matter at hand then of course you should be able to fully explain your hesitations and slow down the proceedings. But you should have to actually be present in the Senate chamber to do it. Under the 2010 rules, senators can halt debate by placing a phone call to a court clerk. Furthermore, using a "hold," which I will get to later, senators can stop debate anonymously. That goes against everything a representative-democracy stands for. Senators could then avoid pressure or reprimand from both their colleagues and the constituencies that appointed them.

As I mentioned at the onset of this post, as the required first action of the 112th Congress, the Senate had to agree on the rules to which it will adhere for the next two years. Though the compromise of 1975 included a provision that the rules of the Senate can only be changed with a(n insurmountable) two-thirds majority, some Senators and legal experts have maintained that such a restriction would violate the Article I, section 5 of the Constitution ("each House may determine the Rules of its Proceedings") which supposedly implies that a simple majority as all that is needed.

Championed by Tom Udall (D-NM), some of the younger Senators of the 112th congress moved to change the rules with regard to the filibuster. A comprehensive reform was quickly dropped once it became apparent there wasn't enough support. However, both parties agreed to a compromise in an effort to address some of the complaints. As part of the compromise, several separate measures were put to a vote that would alter the dilatory procedures surrounding Senate votes.

1. Rejected 46-49: To require senators to be on the floor to filibuster.
2. Rejected 41-51: To improve the debate and consideration of legislative matters and nominations in the Senate.
3. Rejected 12-84: For cloture to be invoked with less than a three-fifths majority after additional debate.
4. Accepted 81-15: To permit the waiving of the reading of an amendment if the text and adequate notice are provided.
5. Accepted 92-4: To establish as a standing order of the Senate that a Senator publicly disclose a notice of intent to objecting to any measure or matter.

The first resolution would have been amazing had it passed. I'm still impressed that it received as many yeas as it did. Similarly, the next resolution, a comprehensive and complex proposal, received an impressive number of votes. The third resolution had no chance. The fourth is nice but I'm sure someone filibustering can still find something to have read to stall for time. It is the fifth resolution that may make the most substantive effect.

This resolution has to do with the mysterious "holds" that can be placed by any senator to block debate. I say mysterious because holds aren't actually in the senate rules, much less the Constitution. From the little anyone knows about them, they work like this: Prior to last week's legislation being passed, a single anonymous senator could make a request to their party leader that debate be suspended. The senate leaders then agree on the duration of the hold and all work on the bill grinds to a halt until the displeased senator's concerns are sated.


Now, thanks to the rule changes, if a Senator puts a hold on a measure, it will be placed in the public record after two days. Progress. Trifling progress perhaps, but progress nonetheless.


This is definately not the end of debate on this issue, but perhaps these small fixes have provided the Senate some extra time before they slip back in to the mire of senatorial partisanship.