Filibuster Reform: Why a Gridlocked Senate Needs it, But Won't Let it Happen

As the final hours of the 112th Congress come to a close, the political machinations for the 113th Congress are already in full swing. While the country recovers from the fiscal cliff fiasco, the elder statesmen and women of the Senate are busy preparing for what could be a new all-out political war kicking off on Thursday concerning the fascinating matter of rules reform.

Now, rule reform may sound boring (I’ll be honest, it probably is) but its importance cannot be underscored enough. The undeniable target of any proposed reform is Senate Rule 22, better known as the filibuster. An archaic holdover of Senate procedure that allows a single senator to slam the breaks on any and all legislation by refusing to end debate on a bill, the filibuster allows every senator the ability to prevent laws from being put to a vote. Filibusters can be overcome by a vote of 60 senators but are otherwise fatal to a bill, especially since a single bill can be filibustered multiple times.

In the lead-up to the end of the year, Senate Majority Leader Harry Reid (D-Nev.) has made clear that he would pursue filibuster reform at the start of the next Congress. Unsurprisingly, he has met bi-partisan opposition that is looking to water down any potential reforms to the point of ineffectiveness.

This fight matters, folks, and we need to understand what’s at stake.

The arguments in the fight over filibuster reform delve deeply into the anachronistic and admittedly dated procedural rules of the Senate.

Despite its boring nature, filibuster reform has the potential to seriously shift the balance of power in the Senate and in Congress.

The Filibuster


The filibuster itself does not exist as a rule, but rather comes into being out of a collection of Senate traditions. The exercise of a filibuster is relatively straight-forward: at any point in time, a senator can invoke the long-standing Senate tradition of unlimited debate and just start talking. That senator can keep talking until he or she decides to stop or is ordered to stop by the invocation of cloture (more on that in a second). The filibuster may be exercised on any one of several procedural motions, effectively allowing senators wishing to stall a bill multiple bites at the apple.

Filibusters are most often ended by the invocation of cloture. To invoke cloture, a senator must first find 15 additional signatories and submit a motion to the Senate. After a day, the motion is brought up for a vote: If the cloture motion wins a three-fifths majority (60 senators), then cloture is invoked. However, invoking cloture does not bring an immediate end to debate. The filibustering senator(s) are allowed 30 more hours before they have to sit down. Only then is a filibuster truly broken.

In the old days, the filibuster was exercised by the minority party, always in-person, to block a bill it found particularly abhorrent. Rarely used, the filibuster was intended to be an act of last resort by the minority party. Today, filibusters are rarely carried out in person, as the mere mention of a filibuster threatens to eat up days of Senate time, forcing the majority party to back off or clog up the Senate.

The use of the filibuster as a tool of obstruction has skyrocketed in recent years. The 110th Congress (2007-2008) experienced a record 139 motions to invoke cloture. This trend continued in the 111th Congress, with the filing of 137 motions to invoke cloture. In comparison, only 20 cloture motions were filed between 1950 and 1969.

Unsurprisingly, no bill passed the 111th Congress without a full 60-vote majority in the Senate; even bills that had the full 60-vote support withered on the vine due to the scarcity of available floor time caused by the constant invocation of cloture.

The filibuster has evolved in the 112th Congress, with less cloture votes being called by the Democrats in order to avoid long, drawn out fights. Just over 110 cloture motions have been filed in the 112th Congress, a slight decrease from the Congress before. This drop is primarily attributable to having a Republican House providing less bills that Senate Democrats want to bring up for a vote.

Getting to Reform


The filibuster is uniquely positioned within a body of rules that are both completely flexible yet stubbornly tenacious. The core of the debate surrounding filibuster reform hinges on whether the Senate is considered a “continuing body.”

Individual senators stand for election on a rolling basis, meaning that approximately one-third of the Senate is up for election at a given time. This gives rise to the argument that the Senate is a “continuing body” that is never truly “new” due to the automatic retention of two-thirds of its members every election cycle.

Combining this “continuing body” theory with the language of Senate Rule 5, which states that “[t]he rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules,” leads to the argument that any proposed change to the filibuster rule can itself be filibustered because the filibuster is still inherent in the “continued” rules.

In essence, because the filibuster has been accepted as part of the Senate rules, efforts to remove the filibuster from the rules can be filibustered. Are your eyes crossing yet?

To call this theory contentious is a massive understatement. Senators from both sides have expressed support for an alternative theory, dubbed the “nuclear option” due to its potentially explosive impact on Senate politics (it’s also referred to as the “constitutional option” by those seeking to keep the rhetoric a bit softer).

The nuclear option outlines that because the Constitution is silent on the numerical requirement for changing Senate rules, a 51 vote majority must be sufficient. Employing the nuclear option would allow 51 senators to go in and change the Senate rules to their choosing. They could eliminate the filibuster or reform it as they pleased, with the minority powerless to stop them.

Whether the nuclear option is exercised at the start of the 113th Congress will depend on a number of back room negotiations sure to take place over the coming weeks. If it happens, it will most likely happen early on Thursday afternoon, as the rules are reviewed. For now, let’s assume that the nuclear option is exercised, giving the majority room to reform the filibuster however they choose. What could they do? Read on.

Reforming the Filibuster


The first and most obvious option after the invocation of the nuclear option would be to get rid of the filibuster altogether. With its misuse and abuse, cutting the filibuster as a tool of obstruction would let the majority have its way with little to no opposition from the minority party. It is precisely for this reason that it will never, ever happen.

As much as they may decry it, senators from both parties understand that the filibuster is one of few powers that the minority possesses to oppose the majority’s legislative agenda. Eliminating or handicapping the filibuster will be nice for the party in power so long as it retains a majority, but the second the power balance shifts the legislative agenda will shift with it. This sort of back and forth would quickly lead to schizophrenic legislative policy and an even more broken government.

Senator Reid recognizes this reality and has effectively said that, whatever the reform, full-blown elimination is out of the question.

Fortunately, elimination of the filibuster is hardly the only option available to Reid and the Democrats.

A less extreme version of filibuster reform would leave the filibuster intact while limiting its usage. The proposal, often called the “one bite” reform, would allow only a single filibuster per bill, removing the ability of senators to take “multiple bites at the delay apple.” Currently, a bill can be filibustered on procedural grounds several times before it makes it to a vote. This means that the time-consuming process of invoking cloture must be done several times to push through a single bill, sometimes eating up weeks of Senate time.

The “one bite” reform would transform the filibuster from a repetitive and obstructionist tool to a one-time shot at stopping a bill. Eliminating the capacity to indefinitely stall a bill by way of repeated filibusters while retaining the ability for the minority to still attempt to block popular legislation would allow the filibuster to be simultaneously kept around and made more difficult to abuse.

Another option for filibuster reform is instituting a system of diminishing returns on repeat filibusters. Under the diminishing returns proposal, senators would still be allowed to engage in filibusters at will, but the process of invoking cloture would be transformed.

The first cloture motion on a bill would still require a 60-vote super-majority. However, if the majority were to fail to get 60 votes, debate would be allowed to continue for two more days, at which point a second cloture motion could be brought to a vote. This second motion would require only 57 votes to end debate. This process would be repeatable until a fourth and final cloture vote would only require 51 votes.

Realistically, this reform would still allow for a great deal of obstructionism to continue. But, it would address the issue of what has effectively become the “minority veto” ... the ability of the minority party to prevent the passage of legislation favored by up to 59 members of the Senate.

Allowing the majority party to force an issue until cloture is sure to be invoked prevents the minority party from indefinitely stalling a popular piece of legislation while still giving them time to change the minds of the majority or of the voters.

No Sure Thing


Despite the multitude of options on the table, the reality of filibuster reform is still elusive at best.

We’ve been here before: At the start of the last Congress, every single returning Democratic senator (53 in all), submitted a letter to Senator Reid urging him to undertake filibuster reform.

Yet, despite the unanimous support of his party, Reid made a deal with Minority Leader Mitch McConnell (R-Ky.) to avoid filibuster reform in exchange for greater cooperation from the Republicans on reducing “secret holds” and nominee blocking. Whether that deal has faithfully been carried out by the Senate Republicans is a matter of great debate (spoiler: it hasn’t).

While Reid has already made clear that he won’t eliminate the filibuster, that doesn’t mean he won’t invoke the nuclear option to reform it. At worst, bringing up the topic of filibuster reform with a Democratic majority will give Reid some leverage heading into negotiations with McConnell to lay some ground rules at the start of the new Congress.

Without a doubt, any change is risky. Democrats are once-again vulnerable in the 2014 midterm elections. That means that any reform that makes passing legislation easier for the Democrats now may come back to bite them should the Republicans retake the chamber in two years, something sure to be weighing on the minds of the Senate’s Democrats. One proposed alternative suggests enacting changes that would take effect six years from now, meaning that all senators would have stood for re-election before the new rules would take effect. Such a motion would likely lesson the partisan discord in the short term but it would fail to give Harry Reid the flexibility he’s looking for before 2014.

The current state of politics all but ensures that the filibuster will see some sort of reform in the near future. The unadulterated obstructionism of Senate Republicans has resulted in one of the least productive Congresses in history. Procedural fights over basic issues such as the debt ceiling, infrastructure funding, defense spending, and the recent fiscal cliff disaster have resulted in a series of stop gaps and band aids that fail to seriously address or reform the host of issues plaguing this country.

Election night showed that the American people, on both the right and left, are hungry for something different and want to see the gears of Washington get moving again to solve problems, rather than cause them. The nation is facing a host of issues that only become more complex and expensive the longer we wait and constant obstruction and partisan bickering is fast disappearing as a crutch that Congress can lean on. Filibuster reform may be just the fix the doctor ordered.

*Graph courtesy of Washington Post.

How much do you trust the information in this article?

Mark Kogan

Mark is a lawyer and Mic contributor living in Washington, D.C.

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