It's Time To Fix The Filibuster

Historically the use of the filibuster in the United States Senate has been restricted to only those times the minority party felt were especially important, and it was rarely used. For instance, in the 91st Congress (1/69 thru 1/71) there were only 7 cloture votes (votes to cut off a filibuster). As you can see from the chart above, the number of filibusters has ballooned, especially since President Obama took office. And that chart doesn't even count all of the filibusters by the Republicans since then, but only the ones that the majority party tried to end with a cloture vote.

There is no doubt at all that the Republicans have misused the filibuster. They have used it to try and block everything the president and the Democrats have tried to do (passing laws, setting a budget, approving appointees, etc.). The filibuster, as used by the Republicans, is nothing more than a tool to obstruct the efficient operation of government.

Back in January of 2011, there were calls by many Senate Democrats to reform the filibuster rules. But Majority Leader Harry Reid still believed at that time that the Republican Senate leaders had some honesty and honor left in them. Minority Leader Mitch McConnell promised Reid, in a handshake agreement, that the Republicans would stop abusing the filibuster if Democrats would not change the filibuster rules. Democrats did not change the rules, and Republicans immediately broke their word and returned to their use of the filibuster to obstruct everything the Democrats tried to do.

It looks like Reid has learned his lesson. He let the Republicans play him for a fool back in January of 2011, but he's not going to let that happen again. He has said he was wrong back then. Today he is willing to back efforts to reform the filibuster (which can be done with a simple majority vote, but only in January when the Senate sets its rules for the next two years). Counting the two Independents (Sanders of Vermont and King of Maine), the Democrats now have 55 votes in the Senate. They only need 51 to change the filibuster rules (which means it could be done even if 3 or 4 blue dogs balk at going along with the change). And support for the change is gelling among Democrats.

Senator Jeff Merkley (D-Oregon) is one of the prime proponents of filibuster reform. In an interview with The Huffington Post, he outlined some of the changes being proposed:

The critical component, though, is a mechanism that would force senators to physically take the floor and speak in order to maintain opposition to legislation. The effort to end a filibuster is called a cloture motion. Under the proposed rules, if a cloture vote failed to win a simple majority, the bill would be killed and the Senate would move to new business. But if it won a majority -- though less than a supermajority of 60 -- the bill would remain on the floor for any senator who wished to opine on it. If at some point no senator rose to speak, after given several chances to do so, a new vote would be called -- and only a simple majority would be needed to pass it.

"You have to present your case," said Merkley. "If you think there should be more debate, then you've got to debate. You've got to present your case before your colleagues, before the American public. If you haven't got the guts to do that, then you shouldn't stand in the way of the majority vote."

The thinking behind the proposed rule is that it will highlight opposition that is unpopular, but will still allow a determined minority to block legislation. . .

Whether the senators can maintain their filibuster, then, will come down to determination and public pressure. Merkley argued that Republicans would've been unable to block legislation related to jobs for veterans or campaign finance disclosure, for instance, if they'd had to do so in public. . .

Merkely said that the package he and his allies put together will also include more direct reforms. Reid has suggested simply eliminating the filibuster on the motion to proceed to debate, which would save the Senate many hundreds of hours of wasted time the course of a term. Merkley said such a provision was likely to make it into the final package, as well as restrictions on filibustering efforts to send a bill to conference. Under current rules, even after a bill has passed the Senate, the minority can still use the filibuster to attempt to block it from going to a conference committee with House legislation, chewing up days of the Senate calendar.

I hope the Democrats are serious about this. It is time to rein in the abuse of the filibuster system. The plan above would not completely eliminate the filibuster, but it would make senators who wished to filibuster do so in public and on the Senate floor. Silent filibusters by "secret" senators would not be allowed. That's a good start, since only those things where several senators would be publicly willing to keep a talking filibuster going would than be filibustered, and even then it would end when the talking ended.

Personally, I liked the plan being floated back in 2011, which required a series of votes to invoke cloture -- with each vote requiring less support, until finally cloture could be invoked with a simple majority. But the proposal above is a vast improvement over the current system. Now let's hope the Democrats have the backbone to actually put it in place.