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Filibuster Reform’s Small Steps

With the start of a new session, the time was ripe for the Senate to reform its archaic procedural rules and curb obstruction – to do something about rampant filibuster abuse. It has apparently missed its opportunity for real reform.

  • Mimi Murray Digby Marziani
  • Diana Lee
Published: January 27, 2011

Appeared in Politico.

To be sure, these changes represent steps – albeit baby ones – in the right direction. But they do not come close to addressing the root causes of Senate dysfunction. Here’s why:

First, these proposals would not be implemented through an official rules change. Instead, they rely on a “gentleman’s agreement,” an informal handshake between the parties.

This is already suspect. If the Senate were actually comprised of gentlemen and gentlewomen committed to institutional comity, it wouldn’t be riddled with gridlock in the first place.

In fact, secret holds are already banned. The 2007 Honest Leadership and Open Government Act requires senators to publicly disclose their holds within five days. Most senators, however, routinely dodge this rule with a tag-team-hold technique. By passing off an anonymous hold to a cooperating senator (think relay runners) just before the five-day limit expires, a few senators can maintain a secret hold indefinitely – without technically violating the rules.

The current proposal to ban secret holds would change nothing. It is not a meaningful fix because it lacks any enforcement mechanism.

Similarly, reducing the number of executive appointments that need to be confirmed by the Senate also skirts the underlying issues. This move may lessen the logjam somewhat. But there will still be dozens, even hundreds, of nominees in limbo, while essential executive positions remain unfilled.

Senators are still likely to place indefinite, anonymous holds on uncontroversial executive nominations to extract concessions on unrelated issues. Despite Chief Justice John Roberts’ public rebuke of the Senate for partisan game-playing that has created “judicial vacancies in critically overworked districts,” the current reform proposal would not address the judicial nomination crisis at all.

The current proposal thus contains minor fixes that ignore the core problem: The Senate’s procedural rules incentivize the wrong things. Under the current system, obstruction, partisan maneuvering and strategic gamesmanship predominate. There is little genuine debate on the critical issues facing our country.

Too often, individual senators can wield the extraordinary power to singlehandedly block legislation or nominations, to gain leverage on their pet projects – with no negative consequences. Legislating takes a back seat to obstruction.

There were several effective solutions introduced earlier this month that would make a significant difference in the way the Senate operates. The most important proposal is also the simplest: Make filibustering senators filibuster.

This fix – known as the “Mr. Smith Goes to Washington” proposal – would force objecting senators to actually debate to sustain a filibuster. As the rules now stand, a senator need not be physically present. Instead, the majority party must produce 60 votes to break obstruction and move forward to a substantive vote.

Changing the rules so that a filibustering senator must take the floor, shifts the burden of maintaining a filibuster to the obstructer – making filibusters more difficult to maintain.

Even better, Mr. Smith-style filibusters require real debate. Obstructionists would have to explain their reasons for blocking legislation or nominations that have majority support – and let the American people approve or disapprove of their decision.

Another important proposal would limit the number of opportunities to filibuster a measure. Allowing only one bite at the apple, so to speak. Now, any senator seeking delay gets as many as six opportunities to filibuster a single measure – giving obstructionists the power to effectively kill legislation with a million cuts.

In fact, most of today’s filibusters don’t occur while a bill or nominee is actually being debated on the Senate floor. Instead, the matter is often derailed during the motion to proceed to the Senate floor – therefore preventing public debate entirely.

The American people should not have to settle for baby steps by agreeing to a watered-down compromise. There is too much work to do in 2011 – like stimulating the economy, fighting the continued threat of terrorism and addressing pressing environmental concerns – for the Senate to remain crippled by its own procedural rules.

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