Balkinization  

Saturday, November 10, 2012

Filibuster Reform

Gerard N. Magliocca

One of the significant issues that will face the new Congress is reform of the Senate's procedures.  Majority Leader Reid now says that he supports changes in the rule governing cloture petitions, which are used to end debate in the Senate.  So let me restate my proposal about that question, which I made in an Essay published last year by the Northwestern Law Review.

My idea is to turn the filibuster into a suspensory veto that would last for no more than one year in a given Congress.  This is based on the power of the British House of Lords, which was a model for the Senate and currently has the power to delay most legislation passed by the House of Commons for up to one year.  The unrepresentative House of Lords does not possess (though it once did) an absolute veto over most legislation, and neither should a minority of the Senate.

Here's how my suggestion would work.  Once a bill reaches the Senate floor and a cloture petition is filed, the one-year clock would start to run.  This means that the majority party can get its way on any bill or executive nomination so long as cloture is filed by the end of the first session of Congress (e.g., Dec. 31, 2013).  Any new measure brought to the floor after that point could be blocked and would have to be reintroduced in the next Congress.  This would move the filibuster closer to its original function, which was to prevent hasty action at the end of a Congress.

One wrinkle in this proposal is that the Senate minority would face a disincentive to block a bill in the first session because that bill could be amended and those amendments (no matter what they are about) could not be filibustered, unless the Senate adds some kind of germaneness rule or a limitation on filing amendments once cloture is filed.  Nominations,  though, do not pose this problem since you can add only other nominations to the motion on the executive calendar.

There are other ways to reform the filibuster, of course, but it is time to act.

      

Comments:

Hmm, this might make some sense if it were limited to bills that had already passed the House. Otherwise, couldn't any bill be made into any other bill through the process of amendment? In which case you would effectively be saying that the filibuster could only be used in the first session of the Congress. And if that is your objective, (a) why would you want to do that and (b) why not just say so directly?
 

I thought the original function was to prevent bills from being voted on before every Senator had the opportunity to say whatever they wanted about the bill? To prevent measures from being rushed through before debate was finished.

Really, I think the only reform needed is to restore the original function, was that Senators could talk as long as they wanted.
 

A year seems like a long time. That works in England because the Commons are elected for (potentially) 7 years. The equivalent period in the US, accounting for the 2 year House, would be 3-4 months.
 

Mark

I may be missing something but I think the analogy is just to the Senate, that's the only part of Congress that has filibusters, right?

Brett

I actually agree with you (twice in a week)! I'm not sure why they don't have to actually talk anymore, but if they did have to actually be talking to maintain them I bet there would be less of them...On the other hand if you can't imagine something that would make Congress' approval sink even lower the sight of Senators reading cookbooks to hold up business could do it...
 

Didn't the House have an equivalent to the filibuster under Speakers throughout the 19th Century and up until the reign of Uncle Joe Cannon, when he and his iron fist were finally neutralized?

Time to do the same with the filibuster in the Senate.

Majority rules. For better or worse. When we indulge in these exercises of nuance on something so fundamentally anti-democratic in the way it has been so abused, it only feeds the monster.
 

I suppose it's at least theoretically possible to filibuster AND say something relevant about the bill. For instance, you could have filibustered the ACA for 15-20 hours by the simple expedient of reading it aloud, which nobody in their right mind could deny was relevant speech. I'm sure you could have found days worth of relevant things to say about it.

I have to say that getting rid of the filibuster is well down my list of needed legislative reforms.

Abolishing voice votes, that's top of my list. Most of them don't involve a real count, or even time for anybody to yell out "aye" or "nay"; "Allinfavorsayayeallopposedsaynaytheayeshaveit!" is one word, as anybody who views CSPAN knows.

With modern technology, there's no reason every last vote shouldn't be a recorded vote; Just give the members keychains with "Aye" and "Nay" buttons, already.

But, of course, voice votes function to allow the leadership to lie about how the vote went, and to permit the houses to operate in defiance of the Constitution's demand they have a quorum to conduct business. Which is why they won't give them up.
 

Mr. Whiskas, the issue as I see it is how long the Senate can hold up legislation passed by the House. In England, it's ok to hold things up for a year because the House isn't going anywhere. In the US, the House has a relatively short time frame in which to act.

Personally, I'd abolish the filibuster altogether.
 

I agree with Brett's take as to the purpose of the filibuster.

If the purpose be to ensure complete debate, allow a filibuster to last for fixed period of debate on the bill.
 

My suggestion would be for 1 hour per member, plus 2 minutes per page of the legislation, clock only to run while a quorum is present in the chamber.

It's not "debate" if one side is talking to an otherwise empty room.

My dream list of reforms:

1. Give every member a keychain with "Aye" and "Nay" buttons. With it being a felony for anybody other than the member to press the buttons. All votes are recorded.

Oh, and the keychain has a mike that's open and broadcasting whenever it's inside the legislative chamber... It's the public's business, the public is entitled to eavesdrop.

2. Place panoramic webcams around the chambers, so it's perfectly evident when no quorum is present.

3. The Congressional Record becomes a perfectly accurate verbatim record, no extending or revising of remarks.
 

Mark

Ah, I see, I thought I might be missing something, and was :)
 

Interesting reform idea. For more on how the filibuster is fili-bucking up democracy, please check out: www.cartoonomist.com
 

Joe Reed broke the House equivalent of the filibuster, leading to a short term increase of the power of the Speaker, which broke under Cannon.
 

Good point from Mark Field.

Realistically, either way, I don't see the filibuster going bye bye, so the best we can hope for is a modification. With apologies to mls, I think this can occur by majority vote in January.

I think some form of the OP works though nominations are of great importance. A time limit there is needed.

As to having time to "say" what they wanted, I think in practice in meant to do all what a senator does, including researching and obtaining information. Also, it functionally required compromise & I'm sure that was part of the idea unless the people involved were clueless as to consequences.
 

Joe- no apology necessary, but I would refer you to the foreword (written by Senator Mark Udall and former Senator Ted Kaufman) to Defending the Filibuster: "if the Senate were to employ a majoritarian way of doing business and adopt new rules by a simple majority vote at the beginning of each new Congress-- as was suggested during the 111th Congress by a frustrated faction of our colleagues- we fear that it would trigger major and destablilizing changes in the role and nature of the Senate as a body."
 

This comment has been removed by the author.
 

With respect to those cited, I think such fears are overblown.

To remind by basic conciliatory position, I don't demand the Senate to simply have a "a majoritarian way of doing business" and letting a majority re-examine and alter the rules once every two years will not do that. I'm open though. Make it every four or whatever years, if that is what it takes.

Mark Field can note the "destabilizing" nature of the current Senate and/or how "the role and nature of the Senate as a body" can readily survive with a simple majority rule. Of course, changing the filibuster rule (and leaving in place a slew of other delaying mechanisms) will change SOMETHING of its current "nature," but not sure to the worse.

[or we can replace the filibuster with the robot that delays posting comments]
 

Tom Toles' WaPo political cartoon today may supply, in part, sort of a reform of the Senate Filibuster: Require talking as in the days of Senator Strom Thurmond. Senators of both parties require much off-floor time to replenish their political campaign coffers. If a filibustering Senator is actually required to speak on the floor of the Senate, he/she has less time for campaigning for funds. Money talks. Make the filibustering Senators put their mouths where the money isn't. Yes, money talks, but talking on the Senate floor does not raise money. Senators of both parties know that.
 

Fine idea, but as I say, require that a quorum be present, no making them run out their time in an empty chamber.

It's a right to debate, and it isn't "debate" if you're talking to an empty room.

But they actually do make money talking to the empty chamber, you know; Speeches in front of a camera when there's nobody there to listen are frequently used by incumbents as campaign material, to make their district think they're making these fabulous speeches to the rest of Congress, when they might as well have been in a broom closet.
 

This comment has been removed by the author.
 

Brett, that's not a bad idea to require a quorum for the filibuster, but let's make it so the quorum must be made up of Senators that support the filibuster. No reason to make those who vote for cloture sit there and listen.
 

"Require talking as in the days of Senator Strom Thurmond."

In these discussions, from time to time, those who are dismissive about such "solutions" note that such things aren't necessary. There are lots of procedural gimmicks, like quorum calls, that will delay and delay w/o talking. For instance, someone could ask for a full reading of a large budget bill.

The "two track system" was a major move because filibusters could be ongoing while other business could be accomplished. If the Senate actually could not do work, that could be a forceful thing.
 

"Brett, that's not a bad idea to require a quorum for the filibuster, but let's make it so the quorum must be made up of Senators that support the filibuster. No reason to make those who vote for cloture sit there and listen."

Again, the point of the privilege is, supposedly, to ensure debate. It's not debate if only one side shows up. That's your idea of "the world's greatest deliberative body"? One in which the members avoid exposure to anybody saying something they disagree with?

I'd also point out that it's hardly outrageous that a bill be read aloud before a vote. Rather, it's outrageous that they aren't.

Voting on bills nobody knows the contents of. Hardly a sign of a healthy deliberative body.
 

Perhaps Brett with this:


"I'd also point out that it's hardly outrageous that a bill be read aloud before a vote. Rather, it's outrageous that they aren't. "

is personally a better listener than a reader. Might a reasonable listener better understand a 2,000 page bill than a reader? Consider if blogs and comments were in real time audio. That would compete with the Tower of Babel. Congressmen have staffs, committees, sub-committies, etc, that design, develop and communicate their work under the direction of the Congressmen. There is no simple solution to assure an efficient republican form of governance for an America with over 300 million residents and much more territory than at the time of the founding. While debate may be part of a republican form of governance, there are many other parts of importance.
 

Brett

But if you want to deter abuse of filibuster by making people be present during them why make the people who are voting to end the filibuster be there?
 

Unless we require each member of Congress to be present when each bill is read,* including many that have no chance of passing (but who knows what one will?!), reading the bill is not going to do much for understanding.

Even then, actually understanding the bill, often including nuanced complexities, actually requires close reading and contemplation, with help of staffs etc.

The full reading being waived has been in place for a long long time for a reason.

---

* Which, let's be realistic for a second, is not practicably possible with all the bills, amendments, etc. are in place, even if the government was much smaller.
 

I'd also point out that it's hardly outrageous that a bill be read aloud before a vote. Rather, it's outrageous that they aren't.

# posted by Brett : 9:43 PM


That is complete nonsense. Why do you think they hire staff?
 

If the staff are going to know what's in the bill, instead of the members, maybe we should elect the staff?

Look, Joe, if they're passing laws so fast it's impractical to simply read them aloud before voting on them, then the problem isn't proposing that they read them aloud.

The problem is that they're passing too many laws to have the slightest clue what's in them.
 

Numbnuts, the staff summarizes the bill for the congressman. The idea that these people haven't the slightest clue what they are voting for is moronic even by your usual standards (which are pretty fucking low).
 

Brett just reading them aloud, most likely at a rapid pace while the chamber is mostly empty, is not going to do much here. That's the bottom line.

Legislation is often complex and actually understanding it requires study and close reading. So, you are grasping on symbolism here.

And, again, we can have a fraction of the national laws (the same thing applies to any sizable locality) and spending time that could be spent on other things to just reading laws aloud (including loads of stuff that won't pass, but you have to read that aloud too) is not practicable.

That's why some time back waiving the full reading was put in place.

 

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