Are Republicans the Only Hope for Filibuster Reform?

A majority of senators supported including a public option in the Affordable Care Act. A majority of senators opposed excluding car dealers from the scrutiny of the new Consumer Financial Protection Bureau created by recently signed financial regulatory-reform legislation. Yet there is no public option, and there is a car dealer exemption. Why? In today's United States Senate, it takes 60 votes to move legislation.

Some of us were aware of this problem five years ago and urged Senate Democrats, then in the minority, to take advantage of conservative impatience with the filibuster of a handful of judicial nominees to do away with the 60-vote threshold once and for all. It didn't happen, but there's been increasing realization during the 110th and 111th Congresses that with Republicans willing to play "constitutional hardball" and filibuster to an unprecedented extent, the Senate's rules have become a major obstacle to progressive legislation.

In the view of many, however, reforming Senate procedure is a lost cause. TAP's executive editor, Mark Schmitt, regards such change as "likely impossible" and yearns instead for us to somehow engineer a return to "boring politics." Changing the underlying social and demographic drivers of partisan polarization, however, is the real impossible mission. Reforming the Senate, meanwhile, would be difficult but no more so than reforming the nation's energy or immigration policies. Indeed, the lesson of the past 18 months is that reforming the Senate is a likely prerequisite to tackling those or other major challenges. Perhaps it can't be done -- the odds that the planet is doomed to burn are in fact scarily high -- but it would be foolish not to try.

To many, though, change seems self-evidently impossible because any move to reform the filibuster would, itself, be subject to filibuster. When you peer into the details, things look even worse -- Senate rules say that it takes 67 votes to change the rules.

There is, however, a better way. As Sen. Tom Udall of New Mexico has recently observed, a solid case can be made that the dead hand of past Senates cannot bind new ones. The Constitution states merely that "each House may determine the Rules of its Proceedings," presumably by majority vote. Hence, Udall's proposed "Constitutional Option" to adopt new rules on the first day of the 112th Senate by majority vote. The rules have never been changed by a bare majority in the past, but as Ian Millhiser explained in a January TAP article, the legal legitimacy of such a move is clear, and the threat of changing the rules by majority vote at the beginning of a new Senate was integral to the 1975 reforms that brought the filibuster threshold down to 60 votes from 67.

Udall himself expresses agnosticism about precisely which changes he'd like to see made, arguing, persuasively, that the more important step at this point is to build consensus for the principle that 51 votes will suffice to change the rules. Ideally, we'd eliminate supermajority voting in the Senate, but as George Packer's excellent article on Senate dysfunction in The New Yorker highlights, a multitude of problems afflicts the world's worst deliberative body, some of which -- like holds or mere stalling tactics by minorities too small to actually block legislation -- could be ameliorated with more modest reforms. These could be aimed at streamlining Senate action without eliminating supermajorities as such or at phasing out the filibuster over time.

This and other worthy endeavors of reform are opposed by a mix of moderate and senior members of the Democratic caucus suspicious of loose talk of change. Strangely, I've not heard a single Senate Democrat denying that the current cohort of Republican senators has exploited and abused the current set of rules to an unprecedented degree. It's simply that Democrats want to roll back the clock to the filibustering and holds of yore rather than do away with such rules entirely. The only reason the rules permitting current Republican abuse have stayed on the books for so long is that senators generally abstained from abusing them. Individual senators and minority leaders in general have traditionally felt that abusing their privileges too flagrantly might lead to their abolition. If the only response is whining and pleading, abuse will simply continue.

The most superficially persuasive argument that reform opponents mount is that progressives should shy away from curbing parliamentary tactics on which we may well come to rely if Mitch McConnell becomes majority leader. But pursuing this question seriously ends up cutting in precisely the opposite direction. The Senate's been in a downward spiral of increasing obstruction for years now. Does anyone really think a Republican majority would put up with Democrats dishing out what they've been taking? The next Democratic minority will either constrain itself or else will have the rules changed on it. The current dynamic is unsustainable. The only real question is whether Democrats will have the guts to turn it around this winter or if reform will have to wait until the right takes charge.

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