Is Compromise on the Filibuster Even Possible?

Posted May 25, 2010 at 3:16pm

Last week, I testified at a Senate Rules and Administration Committee hearing on the filibuster. It turned out to be an extraordinary hearing in several ways.

[IMGCAP(1)]First was the appearance as a witness of Walter Mondale, the former Senator from Minnesota, former vice president, and current, former and future paragon of public service. Mondale was a key figure in the Senate in 1975 when the last significant change in Rule XXII occurred — on a bipartisan basis, which was not all that extraordinary at the time. Mondale as vice president in 1977 also figured prominently in the next serious change in the way the Senate does its business, when then-Majority Leader Robert Byrd (D-W.Va.) broke the back of the filibuster-by-amendment, then being conducted by liberal Democrats James Abourezk (S.D.) and Howard Metzenbaum (Ohio) on a natural gas bill that was a top priority of their own party’s president.

Mondale is a marvel — at 82 he looks young and sounds younger, and was a smart, articulate, funny and insightful witness. But he was also the young whippersnapper in the hearing room when 92-year-old Robert Byrd was wheeled in to make a statement.

Byrd does not look young, I am afraid, and struggled a bit with his notes, but his statement was vintage Byrd, powerful and powerfully delivered, a defense of minority rights in the Senate and simultaneously an attack on the abuse of Rule XXII, along with a larger critique of a Senate increasingly dominated by money, especially the obsession with raising campaign dollars. Watch both Mondale and Byrd on the video available at the Rules Committee website (the Senate Rules Committee is a model for all panels about how to make hearings easily accessible in real time and afterward).

This hearing was the second of at least three on how the filibuster has changed in the Senate, with a focus to come on what to do about it. Democrats on the Rules Committee put up charts showing the explosion in the number of cloture motions in the past two Congresses, a dramatic departure from long-standing practice and norms and an abuse by the minority of the intent of the rules. Republicans on the committee used the same data to complain about the abuse by the majority of premature cloture motions and tactics such as filling the amendment tree as ways of pre-emptively cutting off debate and curtailing the right of the minority to offer amendments to major bills.

Both sides had a serious point — this is in part a chicken and egg problem — although my testimony, and that of Washington University political scientist Steve Smith, suggested that the minority use of filibusters on measures and appointments that end up passing unanimously or nearly so, taking days and weeks of precious floor time, is a clear tactic of obstruction. But during the course of the hearing, a possible area of compromise emerged, with some real dialogue offered between witnesses and Senators.

It started with discussion of filibusters on the motion to proceed, which cannot be portrayed as vehicles to amend bills or offer substantive alternatives — they block debate by refusing to allow bills to come up. If a body is going to have a rule allowing unlimited debate that requires a supermajority to shut off, to give a minority an opportunity to have a great national debate about an important issue, there is no good reason to allow two bites at the apple, one on the motion to proceed and a second on the bill itself, eating up more and more time.

But rules changes that only expedite action without taking into account the legitimate gripes of the minority about a growing inability to have adequate time for debate and amendment will be very hard to sell to a deeply divided partisan chamber. So what about a trade-off — no more filibusters on motions to proceed, along with majority commitment on many issues to allow significant time for debate and amendment?

In theory, this kind of trade-off could occur via an informal understanding between the parties and their leaders. Or it could be done through changes in the formal rules.

The members of the Rules Committee are almost all institutionalists and would be sympathetic to some entente in this fashion. I remain skeptical, in part because I do see a clear minority party strategy to try to stretch out every issue major and minor, and a slew of nominations, controversial or not, to make it harder for the Senate majority and the president to pass and implement their agenda. I don’t see much incentive to do anything that will expedite action; nor is it clear to me that the Majority Leader would agree to seriously cut back his ability to curtail amendments.

Even if a compromise were achieved, it would be a small step forward — doing nothing, for example, to end the ridiculous explosion in secret holds of nominations that are blocking many dozens of key presidential appointees with sterling credentials from serving for months or years while they twist cruelly in the wind in the Senate.

There are other changes that would make sense as well, ones I will discuss in future columns. But the simple fact that a hearing went beyond partisans talking past one another and simply reiterating their talking points, was more than I expected.

Norman Ornstein is a resident scholar at the American Enterprise Institute.