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Krasno & Robinson: Fixing the Filibuster

Sen.-elect Scott Brown (R-Mass.) has promised to join the GOP filibuster of health care reform. To do so, he will not need to give any long-winded speeches, make any parliamentary motions, or even vote. All he will need to do is NOT do something his predecessor did — vote to allow the Senate to vote on the bill itself, a procedure known as cloture.

If that sounds like doing nothing at all, it is. This is the latest step in the evolution of the filibuster from exhausting to effortless. It has always been difficult to pass a bill, but it has never in Senate history been easier to stall or block a vote.

No wonder the number of votes stalled or blocked has dramatically increased. Once a tactic of extraordinary resistance used sparingly, filibusters are now a routine way to oppose anything. Senators have even filibustered bills they support to gain concessions. Several months ago, the Senate unanimously voted to extend unemployment benefits after overcoming three separate filibusters.

All this filibustering has made it extremely difficult for the Senate to act and impossible for it to act quickly. The constant delays are mystifying to citizens and maddening to at least half of Senators at any time. Right now the Democrats are the ones stymied by filibusters, but Republicans will experience the same frustration when they regain control.

The question is how to fix this situation — especially in a way consistent with the Senate’s traditions. The answer is to revisit the procedure to end filibusters, cloture, to make Senators trying to prevent a vote work as hard as Senators trying to force one.

Here is our three-step plan:

1. Make them vote. Cloture is invoked with a vote by three-fifths of the Senate’s membership — the magical 60 votes now necessary for the Senate to do anything. That is why it does not matter whether Sen. Brown votes; anything short of 60 in favor of cloture is a failure.

That is ridiculous. Filibustering Senators are the ones trying to prevent the Senate from voting. It would make more sense to require them, after some hours of debate, to assemble 41 votes to continue, rather than the other way around. Our compromise is to allow three-fifths of Senators present and voting to invoke cloture, making votes against just as important as votes in favor.

2. Make voting easier. By itself, Step One would change little since attendance is generally high for cloture votes. That is because those votes follow elaborate buildup. Fairness requires that it be as easy to try to end filibusters as it is to start them.

The point is to allow a filibuster’s opponents to hold a cloture vote with little delay or warning. That would, in concert with Step One, force a filibuster’s supporters to be constantly at the ready to fend off cloture whether a vote comes at 3 p.m. or 3 a.m.

3. Reduce debate times. Once invoked, cloture allows another 30 hours of debate before a vote occurs. Because the legislative process involves a series of steps, Senators can delay a bill by weeks by forcing multiple cloture votes on a single bill.

The obvious response is to reduce the amount of time for debate following cloture. This would streamline the process and give the majority some leverage to strike deals to forgo filibusters in exchange for prolonged debate.

These reforms would not prevent filibusters, especially on bills like health care reform that arouse strong opinions. But they would end the effortless filibuster, making the decision to start or join one more difficult.

Unfortunately, the Senate’s rules make changes like these all but impossible. That is why when Republicans were last in charge they worked out an elaborate series of maneuvers known as the “nuclear option” to ban judicial filibusters. While a handful of Republicans eventually balked, the mere threat led to a compromise that helped several blocked nominees get confirmed. Nothing prevents the Democrats from doing the same.

But it should not come to that. The current arrangement where a minority of Senators can block or stall everything is unsustainable. This current crop of Senators may be unwilling to push the nuclear button and ban filibusters, but there is no guarantee that future Senators will be so restrained. Senators of both parties who value the Senate’s tradition of unlimited debate should understand that reform is the only hope to preserve it.

Like the vast majority of Americans, we want governmental institutions to work, not be paralyzed by politics and arcane procedures. Restoring the filibuster to its traditional place as an extraordinary tactic of extraordinary opposition is essential to make the Senate work again.

Jonathan Krasno and Gregory Robinson are professors of political science at Binghamton University.

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