Mr Reid, Tear Down This Filibuster

One of the most frustrating things that’s happened in the last few years has been the overuse and misuse of the filibuster.  Senate Majority Leader Harry Reid--see the morning post–has decided that one of his top priorities will be to pass legislation to tighten rules on the use of the filibuster in the legislative chamber. The overuse of the lazy Senator’s filibuster has stymied nearly every attempt to get Democratic legislation through the Senate.

Bloomberg has an excellent article on the changes that will be proposed and what impact this could have on an Obama second term.  The bill is called “The Mr Smith” bill.  It’s be reintroduced by Sen. Frank  (D-NJ). The bill would require those who want to filibuster a nomination or a bill to appear on the floor and actually speak. This means that Republican senators can’t just scream filibuster and the go home to dinner and cocktails.  The bill was first introduced in 2011.

“The filibuster is being abused to create gridlock and prevent the Senate from doing the people’s business. Instead of being a deliberative body, the Senate has become a deadlocked body,” Lautenberg said in a press release Wednesday. “The ‘Mr. Smith Bill’ would help break the obstruction in Washington, bring transparency to lawmaking and hold senators accountable for their actions. This bill will stop senators from launching a filibuster and then skipping off to dinner, leaving our work in a stalemate.”

The bill — co-sponsored by Sens. Dick Durbin, D-Illinois, and Kirsten Gillibrand, D-New York — also would require that the Senate move for an immediate vote once debate ends and those conducting the filibuster give up the floor.

“Right now, senators are allowed to filibuster and force the Senate to use up a week or more on a single nomination or bill, even if there is no debate occurring on the floor,” Lautenberg’s office said. “Under the Lautenberg proposal, that time could be reduced significantly.”

Typically, a Senate rule change requires a super majority of 67 yes votes, something that will be difficult for Democrats, with their narrow 53-seat majority, to achieve. However, on the first legislative day of a new Congress, a simple majority of senators, just 51 votes, can approve new rules.

According to Lautenberg’s office, 91 cloture votes were taken in the 111th Congress — almost “four times the 24 cloture votes taken 20 years ago and almost double the 54 cloture votes required in the 109th Congress (2005-2006), when Republicans were last in the majority.”

This is the first item that would reform the procedure that became infamous in the Jimmy Stewart movie.   It has moved from being a true expression of frustration with a piece of legislation or a process to a systematic way to gridlock. It has increased the polarization that characterizes Congress these days. It isn’t used to either protect the rights of the minority or to force debate.  It’s used for pure political gain.  The Bloomberg article states that “there were more filibusters between 2009 and 2010 than there were in the 1950s, 1960s, and 1970s combined”.  This will give you an idea of what’s become of a symbol of democracy.  It’s became a way for Mitch McConnell to hold back progress including help for the unemployed, veterans, victims of domestic abuse, and judicial appointments.  Newly elected Senators appear to be on board for reform.

Chris Murphy, the incoming Democratic senator from Connecticut, couldn’t have been clearer: “The filibuster is in dire need of reform,” he told Talking Points Memo. “Whether or not it needs to go away, we need to reform the way the filibuster is used, so it is not used in the order of everyday policy, but is only used in exceptional circumstances.”

Angus King, the independent senator-elect from Maine, said, “My principal issue is the functioning of the Senate.” He backs a proposal advanced by the reform group No Labels that would end the filibuster on motions to debate, restricting filibusters to votes on actual legislation. The group also wants to require filibustering senators to physically hold the Senate floor and talk, rather than simply instigate a filibuster from the comfort of their offices.

And it’s not just the new guys. In an election-night interview on MSNBC, Senator Dick Durbin ofIllinois, the Democrats’ second-in-command, emphasized the importance of filibuster reform. Senate Majority Leader Harry Reid is a committed guardian of institutional prerogatives who put the kibosh on filibuster reform in the previous Congress. But even he has given up protecting the practice. “We can’t go on like this anymore,” he told MSNBC’s Ed Schultz. “I don’t want to get rid of the filibuster, but I have to tell you, I want to change the rules and make the filibuster meaningful.”

That doesn’t go nearly far enough. The problem with the filibuster isn’t that senators don’t have to stand and talk, or that they can filibuster the motion to debate as well as the vote itself. It’s that the Senate has become, with no discussion or debate, an effective 60-vote institution. If you don’t change that, you haven’t solved the problem.

Common Cause actually sued the US Senate this year to end the filibuster.

Enter Common Cause.  It argues that a minority in the Senate has used the filibuster to hold up all manner of legislation, including (most importantly, for this suit), the DISCLOSE Act (to tighten electioneering disclosure requirements in the wake of Citizens United) and the DREAM Act (to create a path to U.S. citizenship for certain aliens).  It argues that the 60-vote requirement in Senate Rule XXII violates the default parliamentary majority-takes-all rule, the careful balance of powers in the legislative branch and between the three branches, and the power of the Senate itself to changes its own rules (because along with Rule V (which continues the Senate rules from Senate to Senate) Rule XXII seems to require that 3/5 of Senators vote to change Rule XXII).  In particular, Common Cause argues that the filibuster violates the Quorum Clause, the Presentment Clause, the power of the VP to break a Senate tie, the Advice and Consent Clause, and the equal representation of the states in the Senate–all of which in different ways assume majority rule.  It also argues that the filibuster is in tension with the eight constitutional exceptions to majority rule.

Again, the Bloomberg article says it best and btw, it’s written by Ezra Klein.

Party polarization has turned the filibuster into a noxious obstacle. Filibusters are no longer used to allow minorities to be heard. They’re used to make the majority fail. In the process, they undermine democratic accountability, because voters are left to judge the rule of a majority party based on the undesirable outcomes created by a filibustering minority.

Ideally, a bipartisan majority of senators would end the filibuster — either immediately or with a delayed trigger six years after a deal is struck — so neither party would know which is poised to benefit. But doing away with the filibuster in the next Congress has some appeal, too. Democrats control the Senate and Republicans control the House; there will be no instant power grab leading to one-party dominance.

So, go Harry.  If they’re going to cause gridlock, then at least make them stand on the Senate floor until they drop.  The American people deserve explanations instead of secretive political maneuvers.