Joined: 19 Mar 2003
|Posted: Tue Dec 13, 2011 11:55 pm Post subject: filibuster reform
There was some movement towards filibuster reform back almost a year ago with the incoming Congress, led by Democrats Tom Harkin (who tried to reform the filibuster back in the '90s too, when the Dems were the minority party), Tom Udall and Jeff Merkley. Harkin's plan was essentially to end the filibuster, by having a fewer number of votes required for cloture after the first invocation of it, and then fewer until a simple majority decides. Udall and Merkley didn't want to do away with it altogether though.
Here are some highlights from Merkley's proposal:
I've long thought the filibuster needs to be reformed; that its current incarnation is far too easily abused, to the detriment of our country. Unlike many, I never thought that it should be gotten rid of altogether, just reformed into something that more resembles what people actually think of when they hear the word "filibuster". Something that requires the minority to put forth a significant amount of effort and/or sacrifice as a principled stand, rather than just casually signifying an intent to block practically every single bill, amendment or nomination, which has now become the norm:
|Jeff Merkley wrote: |
|#4) Require a filibuster petition:
Require a substantial number of senators, perhaps 10, to file a filibuster petition to block a simple majority vote on an amendment or a bill. By creating a public record, senators have to take responsibility for obstructing the process. This also prevents a single senator from blocking the regular order.
#5) Require filibustering senators to hold the floor:
The public believes that filibustering senators have to hold the floor. Indeed, the public perceives the filibuster as an act of principled public courage and sacrifice. Letâ€™s make it so.
Require a specific number of Senators -- I suggest five for the first 24 hours, 10 for the second 24 hours, and 20 thereafter -- to be on the floor to sustain the filibuster. This would be required even during quorum calls. At any point, a member could call for a count of the senators on the floor who stand in opposition to the regular order, and if the count falls below the required level, the regular order prevails and a majority vote is held.
[... enemigo: in the PDF above, he gives an example of how this would work in practice]
This accomplishes two important objectives. It makes a filibuster visible to all Americans. And it places the responsibility for maintaining the filibuster squarely upon those objecting to the regular order.
This approach creates two specific ways to overcome a filibuster. First, there is still the existing method of following the current rules for deliberation followed by a 60-vote cloture requirement. Second, however, is that a filibuster could collapse at any time if the filibustering senators fail to maintain the required floor presence.
#6) Require continuous debate:
The Senate could also require debate to be continuous. Under this requirement, if a speaker concludes (arguing either side) and there is no senator who wishes to speak, the regular order is immediately restored, debate is concluded, and a simple majority vote is held according to further details established in the rules.
This further expands the visibility of the filibuster. Americans who tune in to observe the filibuster would not see a quorum call, but would see a debate in process.
There are other worthwhile provisions offered, but these were the big ones.
As I said, it was about a year ago that this was all being considered, and of course it was killed, predicated on a handshake agreement in which McConnell assured Reid that Republicans would make an effort to filibuster less if Reid would allow Republicans to offer amendments more often. Fucking assholes.
Anyways, earlier today I ran across an excellent law review article in the Harvard Journal on Legislation, called "The Senate Filibuster: The Politics of Obstruction" which provides an extensive history of the filibuster and makes a pretty fucking solid case that the filibuster is actually unconstitutional, and actionably so (meaning that a single Senator could go to court and the judiciary could rule the Senate rules relating to the filibuster unconstitutional). I highly recommend, though it is kind of long.
I'm now a bit conflicted. After reading that article, I think it is pretty clear that the filibuster is unconstitutional. The framers of the Constitution undoubtedly did not want the Senate to be a super majority body, which is what the Senate filibuster rules institute, in violation of multiple sections of the Constitution. However, I'm not sure I'd want the filibuster to go away altogether. If its use could be as rare as it once was, and supported through principled, extraordinary effort, I think its continued existence might be a good thing overall.
Either way, it is interesting that the Framers saw the folly in requiring a super-majority.. Here is Alexander Hamilton writing in the Federalist Papers:
|Hamilton in Federalist Number 22 wrote: |
|To give a minority a negative upon the majority (which is always the case where more than a majority is requisite to a decision) is in its tendency to subject the sense of the greater number to that of the lesser number . . . . The necessity of unanimity in public bodies, or of something approaching towards it, has been founded upon a supposition that it would contribute to security. But its real operation is to embarrass the administration, to destroy the energy of government, and to substitute the pleasure, caprice or artifices of an insignificant, turbulent or corrupt junta, to the regular deliberations and decisions of a respectable majority . . . . If a pertinacious minority can control the opinion of a majority respecting the best mode of conducting it; . . . the sense of the smaller number will over-rule that of the greater . . . . When the concurrence of a large number is required . . . , we are apt to rest satisfied that all is safe, because nothing improper will be likely to be done; but we forget how much good may be prevented, and how much ill may be produced, by the power of hindering the doings what may be necessary, and of keeping affairs in the same unfavorable posture in which they may happen to stand at particular periods. |
|Hamilton in Federalist Number 75 wrote: |
|[A]ll provisions which require more than the majority of any body to its resolutions, have a direct tendency to embarrass the operations of the government and an indirect one to subject the sense of the majority to that of the minority . . . . If two thirds of the whole number of members had been required, it would . . . amount in practice to a necessity of unanimity. And the history of every political establishment in which this principle has prevailed, is a history of impotence, perplexity, and disorder. |
Anyone else have any thoughts on the subject?