The possibility of Democrats losing their 60th Senate seat in Massachusetts next week, slim as it is, should concentrate minds once again on the travesty of the 60-vote threshold for enacting legislation in the Senate. The Senate being what it is, of course, prospects for a major change in rules governing filibusters are not that good, unless some new dynamic is introduced.
At The American Prospect, Mark Schmitt may have identified an avenue for Senate reform: link rules restricting filibusters to rules tightening up the use of the budget reconciliation process.
He predicts, quite plausibly, that if Republicans continue to gum up the works in the Senate by voting en bloc against cloture motions, needing just one Democrat (at present) to hold up action, Democrats will increasingly resort to the reconciliation process, which fast-tracks legislation and prevents filibusters. But that’s hardly an ideal scenario:
[B]ecause budget reconciliation was designed for a completely different purpose it makes an awkward fit for big policy initiatives. It’s like entering a house through the pet door instead of the front door — you might fit, if you twist just the right way, but it will be painful. Provisions that don’t directly affect the budget can’t be included, so, for example, much of the fine detail of health-insurance regulation in the current bill would likely have been lost if pushed through reconciliation. If Congress chose reconciliation as the means to pass a jobs bill, it could include tax credits for job creation but probably not many of the infrastructure-spending initiatives that would directly create jobs.
Still, what choice does any majority party in the Senate have if the minority party chooses to block all major legislation? The experience with health reform is all but certain to create momentum among Democrats for using reconciliation whenever possible. And thus the dilemma, says Schmitt:
So what we have in the Senate are two extremes: the rigid, partisan system of near-total stasis created by the filibuster, on the one hand, and the merciless, closed-door, majority-controlled arcane process of budget reconciliation on the other. A solution might be found in reforming both: Loosen the stranglehold of the filibuster…. And in return, offer the minority party a reform of the power of budget reconciliation that currently cuts them out entirely. Start by permanently limiting reconciliation to measures that actually reduce the deficit (a rule the Democrats adopted in this Congress) and then look at reforms that open up the process to longer debate and a wider range of amendments.
Schmitt cites a number of feasible filibuster reforms, including Sen. Tom Harkin’s proposal to gradually lower the votes needed for cloture after repeated efforts to move legislation are thwarted, along with the very popular idea of requiring actual stemwinding filibusters instead of paper threats. But what’s important is Schmitt’s notion of packaging together reforms attractive to both majority and minority parties. The big question is whether Republicans are interested in any reforms, if only because they hope someday to return to majority status in the Senate. Maybe a bill or two whipped through the Senate via reconciliation would bring them around.
I think the filibuster problem is much more difficult to solve than you imply, since it involves the classic collective action problem of a conflict between between national or “Democratic Party” goals, and individual Senators’ goals.
The filibuster works wonderfully well right now for Senators Nelson and Lieberman, and perhaps Landrieu, Byrd, and others. They have strong motivation to keep it, and indeed to resist attempts to get around it through reconciliation. The ‘inevitable’ move towards increasing legislating through reconciliations to avoid filibusters will lesson the importance and power of individual Senators; as such, many will vote against it in order to maintain their power (are there 50 votes for a public option or an early Medicare option? I doubt it, and I think Reid counted noses and realized reconciliation wouldn’t work either).
The filibuster (and holds, and UCAs, and all the other anti-majoritarian rules of the anti-majoritarian body called the US Senate) may eventually be ended. But it will NOT be ended just because Republicans are trying to block everything.
It will be ended if and only if a solid majority of Senators think their individual interests will be promoted by allowing the Senate to take more collective action. That is not the case right now, and it is not (just) the Republicans’ fault.
I’m not sure I understand the need for compromise. As we’ve seen on health care, Republicans are unwilling to meet us half way. More importantly, the filibuster was never intended to kill legislation. If Republicans want to repeatedly use it for that purpose, that abuse justifies a change in the rules.
Do we need the filibuster? Thomas Geoghegan, writing in the August 12, 2009 issue of The Nation, puts it as follows:
“The fact is, as long as we have the filibuster, we ensure the discrediting of the Democratic Party and we’re more likely, not less, to have a terrible bench.
Sure, sometimes liberal Democrats put the filibuster to good use when Republicans are in power. Sure, sometimes a liberal senator can use the filibuster to stop a piece of corporate piracy. It’s impossible to prove that the filibuster never does any good. But the record is awfully thin. Look at all the financial deregulation that Senator Phil Gramm and leading Democrats like Larry Summers pushed through only a decade ago. The filibuster did not stop their effective repeal of the New Deal, but it would block the revival of it today.
On the other hand, Republicans and conservative Democrats use their filibusters on labor, health, the stimulus, everything. They can and will block all the change that Obama wanted us to believe in. And even when they lose, they win. For example, when we say that after a major rewriting of the stimulus package–a rewriting that seriously weakened the original bill–it “survived the filibuster,” what we really mean is that it didn’t.”
It’s interesting that in his January 10th Op-Ed piece for the NY Times, Geoghegan omits from his “several promising lines of attack” the nuclear option, which is described by wiki as follows:
“In U.S. politics, the “nuclear option” is an attempt by a majority of the United States Senate to end a filibuster by majority vote, as opposed to 60 senators voting to end a filibuster. Although it is not provided for in the formal rules of the Senate, the procedure is the subject of a 1957 parliamentary opinion and has been used on several occasions since. The term was coined by Senator Trent Lott (Republican of Mississippi) in 2005.”
Considering Geoghegan’s reasonings for killing the filibuster, Judis and Teixeira’s strong conclusion that the Republicans are very likely not coming back to power for at several decades, the Republicans having egregiously abused their filibuster privilege, and the fact that if we don’t take serious action on climate change soon civilization as we know it will cease to exist after about 2060, we should use the Nuclear Option and let Obama and Congress get about the business of fixing the messes we’re in.