Norman Ornstein: We Must Reform The Filibuster

[TampaYankee]

Op-Ed Contributor, New York Times

A Filibuster Fix By NORMAN ORNSTEIN

Published: August 27, 2010

AFTER months of debate, Senate Democrats this summer broke a Republican filibuster against a bill to extend unemployment benefits. But the Republicans insisted on applying a technicality in the Senate rules that allowed for 30 more hours of floor time after a successful vote to end debate. As a result, the bill with its desperately needed and overdue benefits for more than 2 million unemployed Americans was pointlessly delayed a few days more.

The Senate, once the place for slow and careful deliberation, has been overtaken by a culture of obstructionism. The filibuster, once rare, is now so common that it has inverted majority rule, allowing the minority party to block, or at least delay, whatever legislation it wants to oppose. Without reform, the filibuster threatens to bring the Senate to a halt.

It is easy to forget that the widespread use of the filibuster is a recent development. From the 1920s to the 1950s, the average was about one vote to end debate, also known as a cloture motion, a year; even in the 1960s, at the height of the civil rights debates, there were only about three a year.

The number of cloture motions jumped to three a month during the partisan battles of the 1990s. But it is the last decade that has seen the filibuster become a regular part of Senate life: there was about one cloture motion a week between 2000 and 2008, and in the current Congress there have been 117 more than two a week.

Even though there might be several motions for cloture for each filibuster, there clearly has been a remarkable increase in the use of what is meant to be the Congressional equivalent of a nuclear weapon.

Filibusters arent just more numerous; theyre more mundane, too. Consider an earlier bill to extend unemployment benefits, passed in late 2009. It faced two filibusters despite bipartisan backing and its eventual passage by a 98-0 margin. A bill that should have zipped through in a few days took four weeks, including seven days of floor debate. Or take the nomination of Judge Barbara Milano Keenan to the United States Court of Appeals for the Fourth Circuit: she, too, faced a filibuster, even though she was later confirmed 99 to 0.

Part of the problem lies with todays partisan culture, in which blocking the other party takes priority over passing legislation or confirming candidates to key positions. And part of the problem lies with changes in Senate practices during the 1970s, which allowed the minority to filibuster a piece of legislation without holding up other items of business.

But the biggest factor is the nature of the filibuster itself. Senate rules put the onus on the majority for ending a debate, regardless of how frivolous the filibuster might be.

If the majority leader wants to end a debate, he or she first calls for unanimous consent for cloture, basically a voice vote from all the senators present in the chamber. But if even one member of the filibustering minority is present to object to the motion, the majority leader has to hold a roll call vote. If the majority leader cant round up the necessary 60 votes, the debate continues.

Getting at least 60 senators on the floor several times a week is no mean feat given travel schedules, illnesses and campaign obligations. The most recent debate over extending unemployment benefits, for example, took so long in part because the death of Senator Robert Byrd, a Democrat from West Virginia, left the majority with only 59 votes for cloture. The filibuster was brought to an end only after West Virginias governor appointed a replacement.

True, the filibuster has its benefits: it gives the minority party the power to block hasty legislation and force a debate on what it considers matters of national significance. So how can the Senate reform the filibuster to preserve its usefulness but prevent its abuse?

For starters, the Senate could replace the majoritys responsibility to end debate with the minoritys responsibility to keep it going. It would work like this: for the first four weeks of debate, the Senate would operate under the old rules, in which the majority has to find enough senators to vote for cloture. Once that time has elapsed, the debate would automatically end unless the minority could assemble 40 senators to continue it.

An even better step would be to return to the old Mr. Smith Goes to Washington model in which a filibuster means that the Senate has to stop everything and debate around the clock by allowing a motion requiring 40 votes to continue debate every three hours while the chamber is in continuous session. That way it is the minority that has to grab cots and mattresses and be prepared to take to the floor night and day to keep their filibuster alive.

Under such a rule, a sufficiently passionate minority could still preserve the Senates traditions and force an extended debate on legislation. But frivolous and obstructionist misuse of the filibuster would be a thing of the past.

Norman Ornstein is a resident scholar at the American Enterprise Institute and a co-author of The Broken Branch: How Congress Is Failing America and How to Get It Back on Track.

See orginal artcile at:

http://www.nytimes.com/2010/08/28/opinion/28ornstein.html?_r=1&hp=&adxnnl=1&adxnnlx=1283011408-wGDY8c4kTcAmbzlb6zyeSQ

[MsGuy]

Interesting proposal. First cloture rule I've seen that respects both the traditional Senate filabuster and the the need for a majority to be able to govern.

[JKane]

The Senate, once the place for slow and careful deliberation, has been overtaken by a culture of obstructionism.

I'm afraid all politics are heading this way. Obstructionist Republican minorities keep the California legislature from accomplishing anything every day.

We can only hope the Tea Party nutjobs who won so many primaries marginalize republicans further and it drops them under the threshold of relevance.

When was the last time SCOTUS decided anything important on more than 5/4?