When I spoke with Jeff Merkley a couple weeks ago about Senate rules reform, he conceded that the Democratic caucus would have to arrive at a consensus set of rules before they would be able to hold together as a caucus and use the Constitutional option to change the rules by majority vote on January 5, the first day of the new Congress. That consensus has begun to take hold, and it comes in three parts, according to Sen. Tom Udall (D-NM), who is leading the effort.
The consensus package will aim to put an end to “secret holds” (anonymous filibuster threats) and disallow the minority from blocking debate on an issue altogether. Those two reforms are fairly straightforward. The third is a bit more complex. Udall, along with Sen. Jeff Merkley (D-OR), say there’s broad agreement on the idea to force old-school filibusters. If members want to keep debating a bill, they’ll have to actually talk. No more lazy filibusters.
But how would that actually work? In an interview Wednesday, Udall explained the ins and outs of that particular proposal.
“What we seem to have the most consensus on, is what I would call… a talking filibuster,” Udall told me. “Rather than a filibuster which is about obstruction.”
Doing away with secret holds won’t really do anything, in my view, though it feels good to assign a hold to an actual Senator rather than anonymously. The second part of this basically means ending the filibuster of the motion to proceed. That will allow the Majority Leader to bring anything to the floor, and will speed up the process significantly on non-controversial legislation, essentially cutting the time in half.
This third part is what Merkley has called “continuous debate.” After 41 Senators or more successfully maintain a filibuster by voting against cloture, they would have to hold the floor and go into a period of extended debate. Without someone filibustering holding the floor, cloture is automatically invoked, and the legislation moves to an eventual up-or-down vote, under this rule change.
This would institute the actual filibuster. The Majority Leader would have the capacity, which Harry Reid says he doesn’t have now, to force the minority to keep talking to block legislation. It becomes a test of wills at this point – whether the minority wants to hold out for days, or whether the majority wants to move to other legislation.
I think this could work as long as a few other issues get ironed out. For instance, post-cloture time on nominations should be eliminated, as there’s nothing to amend on a nomination. There are a couple other reforms like that which would basically allow the majority to take things with broad support and just pass them without delay. This would free up time for the majority to wait out a filibuster. Without that time, with other pressing matters sitting on the calendar, there would be a lot of pressure on the majority to move on. If you can strike a balance between allowing less delay on noncontroversial issues so that the party filibustering doesn’t have as many other choke points in the system, then at there would be an even chance of waiting out the filibuster. As it is, the majority could raise pressure with the media, and of course there would be more attention paid to a talk-a-thon in the Senate. But if talking continuously means that 100 other issues get piled up, I don’t know if the Majority Leader could wait that long.
What is good with this rule is that cloture gets automatically invoked. So it’s not a matter of pressuring individual Senators to split off, but just to get back the floor. The minority, then, doesn’t have to go on record in reverse of their position; they could just let cloture be invoked. The incentives are set up properly; painful to hold the filibuster, easy to let it go.
This will all get decided by next week, when Udall makes the motion for the Senate to change its rules January 5.
UPDATE: Jonathan Bernstein doesn’t think much of these rules changes, but he also doesn’t engage with IMO the most important one of this list, eliminating cloture for the motion to proceed, which will cut the time frame for noncontroversial legislation in half. Bernstein adds that using the Constitutional option at the beginning of Congress will make it harder to use what was called the “nuclear option,” which could be used to change the rules at any time, in mid-session. I don’t know why one has much to do with the other, but Democrats have never been ready to go there on the nuclear option, so just getting them to this point is pretty good work from the freshman Senators who just two years ago would have been laughed out of the caucus with this grievance.



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I’m inclined to agree. Republicans have no shame so it won’t bother them if they aren’t anonymous anymore. I also don’t think just making people use old school filibusters will change much. The caucus sticks together so well they’d just spell each other until Harry Reid caves. After all, anybody can talk for ten minutes…
Bernstein is just a straight up hardcore defender of the filibuster for some reason. I find it hard to take him seriously on this matter.
More Kabuki theater. Sound and furry with no real meaning. What’s disappointing is that it’s now coming from so-called progressives. Progress would be expanding the Senate to reflect the growth of our population over the past two hundred years. The number of House members as well. Peace
I don’t want to expand the Senate, I want to abolish it. Alternatively, you could set a population limit on the states, forcing them to split if it reaches above a certain threshold. But that’s highly unlikely. The House should absolutely expand.
Do you have a link? I’d very much like to read about that!
I agree with you. The Senate, like the House of Lords, is an anachronism that needs to be abolished. Clearly serves only the “Lords” of Universe these days and completely blindsides the needs of the populace at large.
House should be expanded and given full reign.
David,
I apologize that I cannot cite the article at TPM that was posted today but according to the article, Harry Reid is in consultation with Mitch McConnell to “water down” any filibuster reform.
That is just great, Harry who was made to hold a meeting in the basement when the R’s were in charge, saw how the crappy filibuster worked against all of the bills passed by the House with Nancy P. guidance, and then died in the Senate, is now in consultation with Mitch to water down any revisions. He should not even be talking to the R’s on this and just get it done. I wonder how Senator Udall one of the point men on this reform is taking this s#it from Harry.
I’m not so much for abolishing the Senate as I am for reforming the crap out of it. If draconian term limits is part of that then so be it. I think public funding of campaigns and an absolute ban on corporate lobbying would go a long way toward that too. Being able to buy access is just wrong.
This is the piece
As far as Udall being upset at Reid: Please. That is all part of the dance.
If I’m understanding this correctly the filibuster was used to kill or delay good legislation coming up from the House for years. Why weaken it now just when the Repugniks have recaptured the House? This might have been a good idea 2 years ago, but it seems like it will only smooth the way for regressive legislation if done now. Is there something I’m misinterpreting here?
So they’ll have an excuse. So they can say they HAD to pass the Republican sponsored ______________ (give More money to the rich people) bill
Margaret,
Thank you. I went to the link you posted and got a message that MY link is broken.
We live in the boonies and just switched to Broadband from dial-up, but I am still having trouble doing some of the things I would like to do with this computer.
So again, I thank you and my hope against hope is that somehow, this Senate gets functioning again, but I realize that chances are slim and none.
Hmm. it does the same thing to me but the TPM story is still there. I’ll try again.
http://tpmdc.talkingpointsmemo.com/2010/12/how-harry-reid-and-mitch-mcconnell-could-upend-filibuster-reform.php
That link works.
I am so glad that you got the chance to dine out with Mr. and Mrs. cbl.
cbl2 was the first one that welcomed me when I wrote my first post back at Christmas 2005 and I remember asking the commenters to take it easy on me for my first post and cbl2 was a welcoming comment I will never forget.
Saw this, will have a comment shortly.
I’m glad I did too. :)
The filibuster has to be preserved — period. Otherwise you get a “majority” that’s able to ram through, literally, the most depraved legislation it wants with only fifty-one politicians. No legislative body should have such unfettered power. That’s why the founders created a Senate in the first place, to balance out the House of representatives. They knew full well the dangers inherent in allowing a simple majority of politicians to pass laws. In order to preserve the rights of the minority, there has to be a system in place that would implement this fundamental protection.
Having said that, filibuster reform that would actually force politicians to go on record filibustering desperately needed legislation so that public pressure can be brought to bear would benefit the public in the long run. Reid is far too accommodating of Republican filibuster threats. He needs to go. But also in need of elimination is the ability of a majority leader to coddle the minority, which Reid excessively does at every opportunity.
23 phony Democratic Senators are up for re-election in 2012.
The Senate needs to develop some new rules to keep the KABUKI game going.
The 23 Democratic Senators up for election in 2012, need to ack like Dems the next couple of years, so they will not be able to participate in the Kabuki.
If the Dems win the Senate and the House in 2012, the republicans will ask the rules be change back to 40 = the majority in the Senate.
Nancy, Harry, Obama, Mitch = Millionaires
Millionaires stick together! to screw poor americans.
Nothing = Nancy passing 400 Liberal Bills and Harry killing 400 Liberal Bills
That’s a rather dishonest reason for not taking someone seriously. Like it or not, the filibuster is constitutional and it should remain. Don’t go blaming the procedure when it’s the people who abuse it that are to blame.
Whoa there, let’s not have any of that, what do they call it, LOGICAL thinking going on here! Someone might decide it’s a good idea to follow it!
regarding your observation that the chances are between slim and none.
regrettably slim has left town
Senate rules reform. Another soft tissue issue that means little to real people livin in real America with real lives. The Senate should be talking about Jobs, the wars, the economy, renewable energy and getting it all moving in the right direction. Now. Failure to do that will not play very well in the future. Hope the next Congress/Senate gets on with some reality.
It’s brought up now because you never known when the next opportunity to make this improvement/fix will come around.
The post above is very good, an improvement over what we were hearing just a few days back and yet not ‘all the way’. I suspect this Senate won’t accept much more progressivity than this.
One suggestion for consideration: leave open a way for a filibuster to be interrupted for business on other issues and a return to the filibustered issue without major headaches. This prevents a filibuster on one bill from being used as a convenience to prevent ALL action on any issue.
Parliamentary democracy works pretty well for most countries. Why are we different?
Also the Great Compromise had nothing to do with preventing runaway populism. It was a (bad) way of balancing power been large and small states.