Frustration over abuse of the filibuster reached a critical point last year, and changing the rules became a cause backed by a growing number of Democratic senators, including Majority Leader Harry Reid of Nevada. Now that Democrats have gained two seats, there is clearly majority support for an overhaul, and several new members have indicated it is a priority.
There are two critical questions: what to do and how to do it.
There are effectively two ways to implement a rule change. The first would be through regular order — passing a rules package that either avoids a filibuster itself, or that has support from more than two-thirds of those present and voting, the cloture standard for a rules change. The second would be through what some call the “constitutional option,” by having the vice president declare as the new Senate convenes that it is not a continuing body, not bound by previous rules, and that a majority can implement new rules.
In 1975, we saw a hybrid of the two ways. Vice President Nelson Rockefeller stunned the political world, including the Senate, by declaring that the institution was not a continuing body. Leaders in both parties then negotiated an agreement that altered the threshold for cloture on bills, resolutions and nominations from two-thirds of those present and voting to three-fifths of the Senate as a whole, while also curtailing delays after cloture motions were adopted.
That worked fairly well for more than three decades. Then we saw a dramatic increase in use of the filibuster. The minority has argued, with some merit, that many of the filibusters were protests against the majority leader cutting off their legitimate amendments. But that has nothing to do with filibustering nominations or routine measures. The rule did not change — the strategy and culture did. Overcoming that culture requires some rules changes.
Ideally, those changes would come by having bipartisan buy-in, with a better way to guarantee relevant amendments in return for ways to make sure it is the minority that bears the burden to sustain debate, instead of putting the burden on the majority to find 60 votes.
Democrats might say, forget the goo-goo stuff. Why is it so much better to do it in a bipartisan way when we can do it on our own without dilution? The answer is that use of the constitutional option will inflame Republicans and ensure that broader cooperation on issues other than the current fiscal negotiations and immigration will disappear. Far better is to have the capacity to pass lots of bills with broad bipartisan support, also supported by the president, and put pressure on House Republicans.
What would such an agreement look like?
We can start with Michigan Democratic Sen. Carl Levin’s plan to eliminate filibusters on motions to proceed, while also providing ways for senators to offer timely and relevant amendments. But any changes should go further. Ideally, it would take 41 senators to continue debate on a measure or nomination every time the majority brought up a cloture motion, not 60 senators to stop debate.
Short of that, I would institute one cloture change, moving from three-fifths of the Senate to three-fifths of those present and voting. Why? Because now, if the majority says, we will bring the place to a halt and go around the clock, the burden is on the majority to have 51 senators sleeping on cots outside the chamber to make a quorum, while the minority needs only one or two to note the absence of a quorum and to object to unanimous consent agreements.
That change would affect only big bills but would not change the incentive to obstruct small and routine ones, or nominations, where it would be entirely impractical for the majority leader to stop everything to prevail. Here we need to streamline the process, cutting back the time to ripen a cloture motion from 30 hours of post-cloture debate to, say, 15 per side, but with the proviso that senators actually have to be on the floor debating continuously during those hours.
These are reasonable changes that do not eliminate filibusters but sharply curtail their misuse. They should attract thoughtful and responsible minority senators. If they don’t, then it’s time to consider other options, including the constitutional one.
Norman Ornstein is a resident scholar at the American Enterprise Institute.