My Proposal on Filibuster Rules

I am about at the end of my rope on listening to the current filibuster debate, all the more so because whatever side some Senator is on today, you can bet a pile of money that they were on exactly the opposite side 10 years ago, when the majority-minority positions of the two major parties was reversed.  Senators from both sides can argue all day that their current stand is "on principle", but this is crap.  If all these people's stands were "on principle", then about 100 Senators have completely changed their principles in the last 10 years. 

Before I take my shot at truly coming up with a solution "on principle", here is but one example of this switch of sides.  I will use the NY Times as an example, mainly because they are so much fun to criticize.  Thanks to Powerline for pointers to some of these editorials.

In their editorial titled "Senate on the Brink", dated March 6, 2005 the Times stated:

To block the nominees, the Democrats' weapon of choice has been the
filibuster, a time-honored Senate procedure that prevents a bare
majority of senators from running roughshod.

and further:

Now [the White House] threatens to do grave harm to the Senate. If Republicans fulfill
their threat to overturn the historic role of the filibuster in order
to ram the Bush administration's nominees through, they will be
inviting all-out warfare and perhaps an effective shutdown of Congress.

Wow! Its sure good that we have this filibuster thingie to protect our way of life.  And its great to have champions like the NY Times who are stalwart defenders of this procedure. 

Except when they are not.  Back when the majorities were reversed almost exactly a decade ago, on January 1, 1995 the NY times editorialized:

The U.S. Senate likes to call itself the world's greatest deliberative body. The
greatest obstructive body is more like it. In the last season of Congress, the
Republican minority invoked an endless string of filibusters to frustrate the
will of the majority. This relentless abuse of a time-honored Senate tradition
so disgusted Senator Tom Harkin, a Democrat from Iowa, that he is now willing to
forgo easy retribution and drastically limit the filibuster. Hooray for him.

For years Senate filibusters--when they weren't conjuring up romantic images
of Jimmy Stewart as Mr. Smith, passing out from exhaustion on the Senate
floor--consisted mainly of negative feats of endurance. Senator Sam Ervin once
spoke for 22 hours straight. Outrage over these tactics and their ability to
bring Senate business to a halt led to the current so-called two-track system,
whereby a senator can hold up one piece of legislation while other business goes
on as usual.

and further (note the Senators who are players in this quote 10 years ago):

Mr. Harkin, along with Senator Joseph Lieberman, a Connecticut Democrat, now
proposes to make such obstruction harder. Mr. Harkin says reasonably that there
must come a point in the process where the majority rules. This may not sit well
with some of his Democratic colleagues. They are now perfectly positioned to
exact revenge by frustrating the Republican agenda as efficiently as Republicans
frustrated Democrats in 1994.

Admirably, Mr. Harkin says he does not want to do that. He proposes to change
the rules so that if a vote for cloture fails to attract the necessary 60 votes,
the number of votes needed to close off debate would be reduced by three in each
subsequent vote. By the time the measure came to a fourth vote--with votes
occurring no more frequently than every second day--cloture could be invoked
with only a simple majority. Under the Harkin plan, minority members who feel
passionately about a given measure could still hold it up, but not indefinitely....

The Harkin plan, along with some of Mr. Mitchell's proposals, would go a long
way toward making the Senate a more productive place to conduct the nation's
business. Republicans surely dread the kind of obstructionism they themselves
practiced during the last Congress. Now is the perfect moment for them to unite
with like-minded Democrats to get rid of an archaic rule that frustrates
democracy and serves no useful purpose

Gee, now I'm starting to think this filibuster thingie might not be so good.  I kindof get confused as to which principled stand by the NY Times I should get behind.

My Plan

First, recognize that I am not a lawyer, nor a constitutional scholar, nor do I play one on TV.  But seeing as the "experts" are tripping over themselves in their hypocrisy, there is not reason I can't jump in the fray too.

My idea for this started when I found out something about filibuster rules -- there are already certain votes that by Senate rules have been made immune to filibuster.  Thank God for blogs, because you won't find this anywhere in the MSM, though its apparently common knowledge.  Everyone treats a change in filibuster rules for judge confirmations as "a break in the dam" or a "slippery slope" which will wipe out the entire filibuster rule.   However, such exceptions have already been made.  The most used one is for budget votes - neither party may filibuster certain budget votes.  The logic for this is obvious - no one want to let 41 people shut down the government.  The majority party should be able to pass their budget.  This exemption is why Senate leaders often bury controversial provisions (recent example:  ANWR drilling) in the budget -- so they can't get filibustered.  Other votes exempt from filibuster include votes under the War Power Act and a number of really trivial things that I can't remember right now - I am looking for a link and would appreciate help.

This leads me to what seems like a fairly obvious, moderately principled position on filibuster:  Change the Senate rules to allow filibuster on new legislation, but exempt votes from filibuster that are required to keep the basic functions of government running.  This latter exempt category would include things like approving budgets, raising the debt ceiling, and voting on nominees of all types.

Postscript:  By the way, as a libertarian, I am generally all for seeing the government shut down, and don't shed many tears when the Senate does nothing.  However, I think my proposal is pretty true to the intentions of the Constitution.  In particular, of all the functions that are currently being shut down by the filibuster, it is galling that it is the court system that is being ground to a halt, since the courts are one of the few institutions where even a hard core libertarian like myself accepts a strong role for government.  Which is not to say that I am happy with the power courts and judges have been taking on themselves of late.

Update:  Here is a further good proposal that I am not sure why no one is talking about - if they are going to filibuster, lets make them actually filibuster, i.e. keep talking and talking:

  However, I think that these Princeton students have the right idea:  If you are going to filibuster, then you should have to filibuster.
Filibusters should come at some personal and political cost. We should
abolish the candy-ass filibusters of modern times, and require that if
debate is not closed it must therefore happen

prospect of John Kerry, Hillary Clinton or Ted Kennedy bloviating for
hours on C-SPAN would deter filibusters except when the stakes are
dire, if for no other reason than the risk that long debate would
create a huge amount of fodder for negative advertising. If Frist were
to enact the "reform" of the filibuster instead of its repeal, he would
sieze the high ground. He could take the position that the Republicans
are merely rolling back the "worst excesses" of the long period of
Democratic majority in the Congress, and that filibusters will still be
possible if Senators are willing to lay it all on the line. Indeed,
even the students at Princeton would be hard-pressed to argue against
such a reform of the filibuster, since extended speechifying is
precisely the means they have used to make their point.

One Comment

  1. Max Lybbert:

    Yes, the newest Republican talking points memo points out that Senator Byrd used a nuclear option of sorts several times in the past, but didn't consider it all that big a deal ( )