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FIghting Abuse of the Filibuster

by: BruceMcF

Wed Nov 16, 2011 at 19:23:38 PM EST

A while back, I described how the peculiar institution of the US Senate Filibuster came into being:
The ability to Talk a Bill to Death was introduced by mistake when Aaron Burr in 1806 argued for removal of the motion to "move the previous question". This is a motion that can be used to postpone debate, when a measure does not yet have a majority, and can of course also be used to bring a measure to a vote, if it has a majority. Aaron Burr appealed to the fact that it had only passed once in the previous four years - but then again, the Senate did not at that time have a filibuster tradition.

But then we went for nearly two centuries with the filibuster being used to kill much progressive legislation, but not being used on a routine basis.

Eventually, as filibusters became more common, the Senate found that it had to re-introduce a version of "moving the previous question", which is the infamous, and confusing to non-insiders, "cloture" vote. This was originally set at a the same supermajority as required of Constitutional Amendments, 2/3 of Senators voting.

This held us through to the post-WWII era. After the experience of the decades long filibustering of civil rights legislation, the cloture threshold was lowered to 60% ~ but it was 60% of all Senators. At the same time, the "morning business" part of the Senate session was created, which allowed many routine operations to continue alongside a filibuster.

It was at this point that the foundations for the present abuse of the filibuster were in place. With far more ideological overlap then than now, there was an informal understanding of the kinds of things that would be subjected to filibuster and the kinds of things that would not be. But there was no longer strong support in the rules for restricting filibusters to major issues, which has led to the "60 Senators to get anything done" rule of thumb that now governs the Senate.

Ideally, we would just eliminate the filibuster. There are enough road blocks in our divided system of government as it is, and indeed if it ever stood in the way of a radical reactionary power grab ~ then the radical reactionaries would just sweep it away at that point in time.

However, getting Senators to give up something that gives the Majority something to hide behind and the Minority massive power is tricky. What I am going to sketch is a means for curbing the gross abuse of the filibuster.

BruceMcF :: FIghting Abuse of the Filibuster
Step One: Elect 50+ Democratic Caucus Senators and a Democratic Vice President

This should have been done at the beginning of 2011, but it wasn't. To do it requires a majority of votes at the beginning of the Congress, when the Senate rules are first voted into existence.

If the Democrats hold the White House, then 50 Democratic Senators are sufficient for this to work. Otherwise, 51 Democratic Senators are required.

Step Two: Keep It Simple

The reason for the abuse is straightforward: until and unless the Majority can get 60% for cloture, it only takes one member of the minority to sustain a filibuster.

And while in most parliaments that have a filibuster, a filibuster really is an effort to "talk a bill to death" ~ in the Senate there is a much simpler way to execute the filibuster. This is to look around and see that there are less than 50 Senators in the chamber, then "suggest the absence of a quorum", which creates a quorum call. The quorum call keeps going through a roll call of Senators until 50 have answered the call, and then business can proceed.

So the majority who want to get work done are pinned down by the filibuster, while the minority only ever has to have one there at a time. For safety, you'd have two, to allow for emergency bathroom breaks, etc. ... but in reality, most of the blocking minority can be asleep in their beds ignoring the quorum call, while the majority have to sleep in cots and get out to answer each one through the night.

This is why there is abuse of the filibuster: because the balance of power is broken. Those blocking progress have less to do than those who want to do the people's business.

One additional rule would flip this around:

  • During a filibuster, after a vote for cloture has taken place, if 2/3 of the Senators answering a quorum call have voted for cloture, debate is immediately closed off and business proceeds.

Under this rule, the bulk of the minority is pinned down, because if there are only 25 of them there, then 50 of the Majority answering the quorum call would kill the filibuster. If there are only 20 of them there, it only takes 40 of the Majority to kill the filibuster. If there are 16 or fewer, enough Majority members lurking in the cloak room to make up the quorum can kill the filibuster immediately by one of their number going to the chamber and suggesting the absence of a quorum, and the rest showing up as soon as the quorum call starts.

The safe number of Minority members to maintain a filibuster is 34. But if there are 34 Minority members in the chamber, it only takes 16 of the Majority to maintain a quorum and force the Minority Senator in the well to keep speaking.

Note that this does not really touch the "Major Filibuster" ~ the "Mr. Smith Goes to Washington" type filibuster. If 41 Senators really believe strongly about a measure not going ahead, seriously enough that they are willing to take the floor and hold it in numbers ... then the filibuster will stand.

But this nonsense of threatening a filibuster over an appointment that is going to get 80 votes ... filibusters over the motion to start debating a measure ... agreeing to rules requiring 60 votes in order to be allowed to proceed without a filibuster ... these routine filibusters and even worse the "conceded filibuster" can be weeded out. A routine filibuster would force the minority to stay in the Chamber, while most of the Majority can fly home, schmooze, fund-raise ... even, heaven forbid, run committee hearings and get the other work of the Senate done.

Even if much of the Majority seemed to be out of town, the threat of a coordinated return to Washington would always be looming over the filibustering minority, as it would only take too many Minority members gone for a single quorum call to kill the filibuster.

Step 3. Put it in the rulebook.

Normally the filibuster cannot be changed in was that benefit a majority ... because that change itself would be subject to filibuster. However, there is this golden period after the Senate is sworn in and before the rules have been adopted that the "Constitutional Option" is in force.

The parliamentary procedure is that the rule is proposed. The actual President of the Senate ~ the Vice President of the United States ~ is presiding.

Now, ordinarily, if the Minority didn't like it, they could try to filibuster it. But a Majority Senator objects "on Constitutional Grounds", along the lines that the Constitution gives the Senate the power to make its own rules, and until the Senators have made the rules for who has the floor, the presiding officer is not bound by rules in session in previous Senates.

The Minority objects, and the Chair (VP) overrules. The Minority appeals, and a member of the Majority moves to table the appeal. A majority vote, and the objection is tabled. Another majority vote, and the modified rule is put into place.

Step 4: Then Kill the Filibuster

Of course, taming the abuse of the filibuster is not the end goal. The end goal is killing it entirely. But curbing the abuse of the filibuster is a first step in the right direction.

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The floor is open ... (3.00 / 2)
... of course, while you could try to filibuster your own comment box, the blogosphere works in parallel, so it won't hold up debate.

Apathy, of course, can still kill debate, even when the filibuster is not available.

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