Feb. 7, 2016

Senate Experts Argue to Save the Filibuster, Sort Of

Advocates and opponents of changing the Senate rules will find something to like in a new book hitting shelves next week that documents the history of filibusters.
In "Defending the Filibuster," Richard Arenberg and Robert Dove outline their case for substantive reform without undermining the chamber.

The bipartisan duo push the case against an effort led by relative Senate newcomers Tom Udall (D-N.M.) and Jeff Merkley (D-Ore.) to change the chamber's rules by a simple majority vote at the beginning of a new Congress.

Arenberg, a Senate Democratic aide for 34 years, and Dove, who rose through the ranks to spend 13 years as the Senate's parliamentarian under Republican patronage, issue a warning to advocates of using the blunt instrument of a simple majority to tweak Senate rules.

"Do not succumb to the temptation to permit a simple majority to rewrite the entire Senate rulebook at the outset of every Congress. This is a slippery slope," they write. "It will almost inevitably lead to strict majority rule of debate and amendment, turning the Senate into a smaller and less significant shadow of the House of Representatives."

In making this caution, Arenberg and Dove allude to the lesser policy stature of the so-called upper houses of other bicameral legislatures. The question is whether the Senate has already gone too far down that road to pull back.

The authors push reformers to seek to move changes through regular order, instead of undermining the historical argument that the Senate is a "continuing body" because two-thirds of Senators are not up for election every two years. Under the existing rules, a two-thirds supermajority can be required to cut off debate on rules changes.

Reformers, however, can take some solace as Dove and Arenberg agree with their view that there are provisions in the current rules that promote dysfunction.

The authors call for making the motion to proceed to bills non-debatable, which is to say, not subject to a filibuster. That position has gained some traction in recent years; Majority Leader Harry Reid (D-Nev.) said earlier this year that he would try to make such a move if Democrats maintain the majority in the next Congress. However, Reid has indicated he would do so using a simple majority, not the two-thirds majority generally required.

As the authors note, the Majority Leader could avoid cloture on proceeding to bills at any time by using an arcane process of morning hour debate.

"This route has, for some reason that escapes us, fallen out of favor with modern majority leaders (since Robert Byrd used it)," the book says, before noting that treaties and nominations are already protected from filibusters on motions to proceed.

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