The time is right. Perhaps filibuster reform is within reach.
Republicans are frustrated by the Democrats’ use of the filibuster to block their desire to get bills to President Obama’s veto pen. There have been 55 cloture votes (to end filibusters) required already this year. The Iran nuclear pact resolution, efforts to defund Planned Parenthood and all of the FY2016 appropriations bills are among those successfully thwarted.
Democrats remember all too well the 494 cloture votes that then-Majority Leader Harry Reid (D-Nev.) needed over the previous four years when the Republican minority so badly abused the filibuster.
With the frustration fresh in memory on both sides of the aisle and with no one certain which party will have the majority in the next Congress, there may finally be a chance for the critical mass necessary to reform the rules. This requires a two-thirds vote to end debate.
Majority leader Mitch McConnell (R-Ky.) has apparently appointed a new task force to explore changes in the filibuster rule. The Republican leadership is saying all the right things. McConnell has made it clear that the Senate would use its rules to change the rules. They would oppose using the controversial and questionable “nuclear option.”
If this is going to work, it must be bipartisan from the outset. I admire much of what the Republican leadership has been saying about the filibuster, but I hope they will engage Democratic leaders.
More than a year ago, I argued in the Washington Post that filibuster reform would benefit both parties and called for a bipartisan panel. I wrote, “Negotiators would be uncertain which status they would hold when the rules took effect, creating a better chance that they would work in a bipartisan fashion to reach the fairest and most effective rules for the Senate.”
It would be tragic if the Senate waits too long. A Republican majority with a newly elected Republican president or a Democratic majority with a new Democrat in the White House in 2017 might succumb to renewed partisan pressure to ditch the filibuster.
Unlimited debate in the Senate has played a crucial role in the Senate’s protection of the minority for more than 200 years. As former Majority Leader Lyndon Johnson warned, “If we now, in haste and irritation, shut off this freedom, we shall be cutting off the most vital safeguard which minorities possess against the tyranny of momentary majorities.”
I would support five changes. Former Senate parliamentarian Robert Dove and I argued in the revised and updated edition of our book, Defending the Filibuster, published earlier this year that eliminating the filibuster on the motion to proceed would, “greatly reduce the number of purely obstructionist filibusters. Once consideration of a bill takes place, the minority would retain their right to filibuster the substance of the legislation.” Also, the procedural steps to take a bill to conference with the House need not be subject to filibuster.
Another reform might be to change the rule now requiring three-fifths “duly chosen and sworn” to three-fifths “voting, a quorum being present.” This would require senators opposing cloture to be present for the vote or risk that fewer than 60 senators could invoke cloture.
I strongly urge the Senate reverse the November, 2013 action allowing a simple majority to end debate on judicial nominations. The use of the so-called nuclear option is really an insult to the Senate’s rules. A procedural expediency was used to create an interpretation that “three-fifths” means “a simple majority.” This is what Joe Biden back in 2005 called, “a lie about a rule.” I have long argued that the elimination of the right of minorities to filibuster empowers any president of either party with a majority in the Senate to disregard the views of minority senators in selecting nominees for the federal courts. This allows presidents to make appointments to these lifetime positions on the bench on a much more partisan basis than has been historically possible.
Finally, I would hope the Senate will end the abuse of rules and precedents like excessive use of “filling the amendment tree” to block minority amendments, Rule XIV to circumvent committees to bring legislation directly to the floor, and the use of reconciliation for legislating beyond its original intent.
Only if both parties seize the moment will a bipartisan rules reform happen.