No, really: Is it time to get rid of the filibuster?

posted at 8:20 pm on January 5, 2011 by Allahpundit

Well, maybe not “get rid of,” but how about reform? Three Senate Democrats rolled out their compromise proposal this morning and at least one writer at National Review (Dan Foster) says … it doesn’t sound half-bad. I’m inclined to agree. The specifics:

–End the filibuster on motions to proceed (since this amounts to unlimited debate on whether to allow debate at all).

–Make all filibusters on substantive measures “talking” or “Jimmy Stewart” filibusters; Senators much actually stand and hold the floor. (How it works now is senators essentially jutannounce their intention to block proceedings and then go grab a sandwich.)

–When cloture is secured on judicial and other nominees, post-cloture debate is limited to two hours instead of the present 30 (since nominations aren’t subject to the same amendments that bills and other measures are)

–Eliminate secret ‘holds’, requiring senators to attach their names to efforts to block nominees

–Force the majority to allow the minority to offer at least three germane amendments to any bill (rather than the majority ‘filling the tree’ to shut out the minority, a Harry Reid specialty).

The threshold worry is that the GOP is still in the minority and therefore stands to lose some leverage if this goes through. True, but that’s meaningless with a Republican House. Anything nutty that Reid passes will die on Boehner’s desk. Think ahead to 2012, when the House will almost certainly stay red and a slew of red-state Senate Democrats will be fighting for their political lives in November. That chamber could flip to the GOP too. If filibuster reform passes now, thereby setting a precedent for the next Congress, and Obama loses his own reelection bid, then the filibuster would be the Democrats’ last means of preventing the repeal of ObamaCare. They could still do it if they’re willing to talk — and talk and talk and talk until the GOP gives up — but this package would weaken their hand. Plan ahead!

As for the particulars, please do read Foster’s thoughtful post. I think he’s right that the “talking filibuster” would be a big enough weapon for a committed minority to kill important legislation on the floor (Democrats had better hope so per my point above about ObamaCare repeal). And the GOP has complained for ages that Reid hogs all the amendment opportunities for Democrats, effectively leaving the party with no options on a bad bill except to filibuster. McConnell grumbled about that in an op-ed just this morning, in fact; under this new package, he’d be guaranteed at least three chances to tempt the Testers and Pryors and Nelsons of the world into siding with the GOP on amendments that could potentially kill the underlying bill. In fact, Foster thinks that because there are likely to be more centrist Democrats in the chamber than centrist Republicans, the ability to dangle amendments at fencesitters in the other caucus would favor the GOP permanently. I’m not so sure about that — between Brown, Snowe, Collins, Murkowski, Kirk and whoever’s elected in 2012, there are actually plenty of RINOs there with maybe more to come — but it’s worth considering.

Exit question: What am I missing here? The big structural concern, obviously, is that this will make the Senate run faster, and faster government tends to be bigger government. I wonder, though, if rolling back the filibuster won’t make both parties more open to the idea of repealing legislation they dislike down the road instead of thinking they have to stop it dead on the Senate floor before it passes in the first place. There are problems with that scenario too — if laws are bouncing on and off the books, it becomes a logistical nightmare for people to plan around them — but there are no ideal options here. The question is, which is better?


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“this will make the Senate run faster, and faster government tends to be bigger government

Amen Brother! What they need is to be stuck in molasses!!!

the Coondawg on January 5, 2011 at 8:23 PM

Two basic rules of thumb:

Anything that slows the Senate down is a good thing.

Anything proposed by the Dems does not have the best interests of the country at heart. (You know they will play it to their advantage and do end runs while the Rs try to follow the rules).

INC on January 5, 2011 at 8:24 PM

Barring some ginormous scandal in Boehner’s Congress or the complete demolition of our presidential nominee, the Senate’s flipping next year – no question.

I say go for it. While they’re at it, throw in a caveat that filibusters on judicial nominations is out of order and all nominees shall have an up or down vote. There’re enough conservative Dems to kill Obama’s loonies, so there’s very little risk.

KingGold on January 5, 2011 at 8:25 PM

I prefer a do nothing Congress.

Mojave Mark on January 5, 2011 at 8:25 PM

I actually thought Dan Foster’s post was quite convincing. But now that you’re endorsing it, I must reject it, you filthy RINO.

mcg on January 5, 2011 at 8:25 PM

It’s a trap!

Knucklehead on January 5, 2011 at 8:26 PM

Other than maybe allowing a little more time than two hours for post-cloture debate, those reforms seem reasonable to me.

Slublog on January 5, 2011 at 8:26 PM

No, really.

GnuBreed on January 5, 2011 at 8:30 PM

http://www.youtube.com/watch?v=dddAi8FF3F4

!!

Purple Fury on January 5, 2011 at 8:30 PM

I think thgey should add these proposed rules, except keep the existing filibuster. No need for peeing on the Semate floor. The substantive debate occurs outside the hall and on TV in any case.

The republic has been around long enough that we really have enough laws already. Adding any more should require more than just 51%.

pedestrian on January 5, 2011 at 8:31 PM

It’s a trap!

Knucklehead on January 5, 2011 at 8:26 PM

It always is from the left!

bluemarlin on January 5, 2011 at 8:32 PM

Never, ever, never, never, never trust a democrat.

SouthernGent on January 5, 2011 at 8:33 PM

If the Dems are proposing it, there is an ulterior motive and it will not go well for the Republicans. What I read was that they were also changing the rule to amend the rules such that a simple majority can change it in the future. If this is the case, then they are doing the old Massachusetts Senate appointee end-around. Right now, the filibuster is out, when they are in the minority, they will propose a rule change and since only 51 votes will be needed, they can assume enough Republican squishes to re-instate the filibuster to “protect the rights of the minority party for the sake of fairness”.

/Don’t trust them, they have never done anything good.

AZfederalist on January 5, 2011 at 8:33 PM

Anything proposed by the Dems does not have the best interests of the country at heart. (You know they will play it to their advantage and do end runs while the Rs try to follow the rules).

INC on January 5, 2011 at 8:24 PM

SPOT ON…

look at PAYGO for cripe sakes…

cmsinaz on January 5, 2011 at 8:34 PM

Holy crap load, Batman.

–When cloture is secured on judicial and other nominees, post-cloture debate is limited to two hours instead of the present 30 (since nominations aren’t subject to the same amendments that bills and other measures are)

You mean the Senate can confirm Obama’s far-left nominees faster? Gee, where do you I sign up?

True, but that’s meaningless with a Republican House.

Just so long as the Senate doesn’t pick up the agenda previously picked up by the House.

filibuster would be the Democrats’ last means of preventing the repeal of ObamaCare. They could still do it if they’re willing to talk — and talk and talk and talk until the GOP gives up — but this package would weaken their hand. Plan ahead!

I’m sorry, have you met Republicans? They’ll restore the filibuster in the name of being “fair” and “open” and “getting screwed”. Democrats, hypocritical as always, make sure of it.

Think of how much horrible legislation would have passed this year had the 60-vote threshold not existed. Now look at Democrats pushing it and conservatives saying, “That’s not so bad.”

amerpundit on January 5, 2011 at 8:37 PM

can’t trust them…sorry allah

cmsinaz on January 5, 2011 at 8:37 PM

You can leave the threshold in place and still undermine the process enough to make it applicable in only the very worst cases.

That’s what Democrats are trying to do.

amerpundit on January 5, 2011 at 8:38 PM

Just so long as the Senate doesn’t pick up the agenda previously picked up by the House.

Which was in the last Congress. Which means that any legislation that was passed by Pelosi’s House and is still in the hopper is now as meaningless as her future.

KingGold on January 5, 2011 at 8:39 PM

If this is such a good idea, let’s revisit it in two years when GOPers control the Senate and get some of that vaunted bipartisan support. Until then, eff it.

elcapt on January 5, 2011 at 8:40 PM

They couldn’t have implemented these changes when they were in the majority in both houses?

Timing = their motivations are suspect = the entire proposal must be looked at with a jaundiced eye.

massrighty on January 5, 2011 at 8:41 PM

They couldn’t have implemented these changes when they were in the majority in both houses?

massrighty on January 5, 2011 at 8:41 PM

excellent point my friend

cmsinaz on January 5, 2011 at 8:42 PM

The idea of forcing folk filibustering to actually be there to do it is a good one…the administrative filibuster was a joke.

JIMV on January 5, 2011 at 8:42 PM

Open Wide Harry! Here it comes

400lb Gorilla on January 5, 2011 at 8:42 PM

Which was in the last Congress. Which means that any legislation that was passed by Pelosi’s House and is still in the hopper is now as meaningless as her future.

KingGold on January 5, 2011 at 8:39 PM

The Senate will pick it up, send it back to the House, and if it’s squish-magnetic enough it’ll attract some Republican support.

Boehner will kill it, if he realistically can, but he’ll look like the big, bad tyrant who is blocking bipartisan legislation from even coming up for a vote.

Would it be terribly disastrous for us? No. But it’s a risk we don’t need to take going into 2012. You don’t volunteer to put yourself into that position.

amerpundit on January 5, 2011 at 8:43 PM

Maybe if we had reasonable, responsible Senators. Who here thinks that’s what we’ve got? Show of hands…..

ElectricPhase on January 5, 2011 at 8:45 PM

Which was in the last Congress. Which means that any legislation that was passed by Pelosi’s House and is still in the hopper is now as meaningless as her future.

KingGold on January 5, 2011 at 8:39 PM

Curious, what if the Senate does not make any changes to it? Are all bills they passed in the 111th dead once they 112th starts? I should know this and I do not, sad!

bluemarlin on January 5, 2011 at 8:45 PM

I think he’s right that the “talking filibuster” would be a big enough weapon for a committed minority to kill important legislation on the floor

silly me. I thought this is what they still did in the Senate…..where the hell have I been?

ted c on January 5, 2011 at 8:48 PM

One aspect of the disaster that is California that goes unnoticed is how it was a relatively mixed state politically, until the 2/3rds majority limit to pass budget bills came up. Then, while the diminishing GOP could stop stuff, it also led to more and more Dems getting elected, promising more and more of this and that until they’ve taken over the State with their stupidity.

Curiously, the CA voters have just changed that rule to a simple majority (sort of the equivalent to eliminating the fillibuster). This could quickly lead to more GOP getting elected when the Dems try to push harder on their Privileged Class Society that puts the Greens, Unions, and bureaucrats living outside market forces with a boot on top of the private sector that pays for all their privileges.

One can argue that the same is a possible, if not probable, result of the Senate ‘adjusting the fillibuster’ rule. The Senate is currently full of liberals and RINO/wannabee liberals. They pontificate and posture about this and that feel good program, but tend to get very little done. With the filibuster changed, this Senate is likely to start doing a lot more stupid ‘liberal’ stuff that voters don’t want, which in turn will promote a stronger conservative GOP Senate in the next term…

It’s a gamble, but hey, it’s not to say that letting things ride is all that wise — look where it’s got us! Perhaps, in a way, this is the Democrat’s way of saying, “Obamacare is a massive screwup, we need to change the rules to undo it… Besides, when the GOP does finally kill Obamacare in 2013, everyone can thank the Democrats for leading the way by changing the Senate rules in 2011″…

drfredc on January 5, 2011 at 8:51 PM

If this is such a good idea, let’s revisit it in two years when GOPers control the Senate and get some of that vaunted bipartisan support. Until then, eff it.

elcapt on January 5, 2011 at 8:40 PM

THIS!

Democrat = Lying scumbags
Republican = clueless, ball less, cross islers
Tea Party Patriots, Man up,
give no ground,
give no quarter,
we didn’t send you to carry the Demrats water,
fight, fight, fight,
day and night,
fight the left,
the squishy right,
kick their asses round that town and
tear their little playhouse down!

dhunter on January 5, 2011 at 8:53 PM

♪Something bad…in the Congress-hood…♪
♫Who ya gonna call?♫

Fili-busters!

Dark-Star on January 5, 2011 at 9:04 PM

There’s an article on this at Red State with a whole other point of view, and it is a little scary.

silvernana on January 5, 2011 at 9:07 PM

If filibuster reform passes now, thereby setting a precedent for the next Congress…

Why not wait until the Republicans take the Senate and then change the rules on filibusters?

The biased MSM is going to come out against the Republicans whether the filibuster rules are changed now or after they take the Senate.

RJL on January 5, 2011 at 9:10 PM

Stinking Sneaking Leftys are setting up a
Ambush…..again!

canopfor on January 5, 2011 at 9:10 PM

Kill the unconstitutional filibuster on judicial appointments. Kill the holds. Allow committees to make recommendations but committes can’t reject nominees either. Let’s make some changes now so the Democrat minority can’t prevent President Pence from getting up or down votes on his judicial nominees.

grgeil on January 5, 2011 at 9:17 PM

Stinking Sneaking Leftys are setting up a
Ambush…..again!

canopfor on January 5, 2011 at 9:10 PM

SNAFU!

I hope they don`t fall for this!

bluemarlin on January 5, 2011 at 9:20 PM

Here’s what’ll happen: If this is passed and the Republicans take over the Senate in 2012, the media narrative will immediately become “The new filibuster rules were tried for two years and didn’t work out well. It’s time to go back to the old tried and true method.” And the Repubs will be blamed for obstructionism or some such thing if they don’t.

jdp629 on January 5, 2011 at 9:23 PM

Exit question: What am I missing here? The big structural concern, obviously, is that this will make the Senate run faster, and faster government tends to be bigger government.

That’s the problem.

toliver on January 5, 2011 at 9:25 PM

canopfor on January 5, 2011 at 9:10 PM

I agree!..Hope the new ones are smart enough not to fall for this!..:)

Dire Straits on January 5, 2011 at 9:27 PM

I like having 60% of the Senate have to agree on something before it becomes law. If anything I’d say make it 65 and set the same standard for the house as well.

angryed on January 5, 2011 at 9:46 PM

Cool!

IF you want to make the Senate a smaller House, that’s fine. Just take the logical next step and ABOLISH the duplicative and costly waste.

Regards,

the Dragon on January 5, 2011 at 9:51 PM

Speed is a concern of “the world’s greatest deliberative body”?

GarandFan on January 5, 2011 at 9:54 PM

Just amend to constitution to say that all bills have to pass the senate by a 2/3 majority (after repealing O-Care of course).

OhioBuckeye7 on January 5, 2011 at 9:57 PM

The “talking” filibuster is only necessary to prevent a cloture vote by not yielding the floor. If the minority has 41 votes they can just sit back and take vote after vote. Same effect. The Senate then puts the issue aside and moves on to other business. Effectively, what is being proposed is to not move on to other business until either cloture or the bill is withdrawn. The current system avoids the Mexican standoff.

Hmmm, would have killed ObamaCare nicely except Reid would have just suspended the rule – emergency and all that.

BTW Bernie Sanders screwed up his 8.5 hour filibuster because it is pointless when there is no business before the Senate.

deadman on January 5, 2011 at 10:06 PM

But now that you’re endorsing it, I must reject it, you filthy RINO.

mcg on January 5, 2011 at 8:25 PM

Jaibones on January 5, 2011 at 10:33 PM

Nah! No changes of this magnitude until after the 2012 election. Screw the democrats and any suggestions they come up with. They have prooven that they can’t be trusted.

That being said, I do think it would be good to have a “talking” filibuster because that’s they way it was intended. If you are too lazy to actually filibuster, then how convinced of your position can you be?

Vince on January 5, 2011 at 10:38 PM

Agreed, nuke the filibuster — make everything require a 2/3 majority in the Senate, period.

We’ve had 220 years of passing all the good laws, and the low-hanging fruit have been picked time and time again. There can be a strong presumption that any laws truly necessary will already have been enacted. It should take a 2/3 majority to overcome this presumption.

cthulhu on January 5, 2011 at 10:39 PM

I call shenanigans, Allahpundit! You’re only agreeing with this because you know the “making all filibusters Jimmy Stewart filibusters” thing will be pure blogging gold. J’accuse!

JavelinaBomb on January 5, 2011 at 11:04 PM

I really don’t know what the angle is here. I mean…the Democrats can’t be that stupid, right? (In terms of parliamentary muscle, that is.) They can’t honestly think that the filibuster is somehow hindering them from passing more of their agenda. As a simple observation of political science, any bill that would be filibustered by the likes of Olympia Snow, Susan Collins, Lindsey Graham, Scott Brown etc has absolutely zero – zero – chance of passing the House.

Abolishing the filibuster would not land a single additional bill on Obama’s desk. Furthermore, the next party to need the filibuster is almost certain to be the Democrats. Even in an imaginary Democratic year, where Obama won and Republicans lost seats, their chances of holding onto the Senate would be slim.

HitNRun on January 6, 2011 at 12:00 AM

NO, NO, NO!!!

You COMPLETELY misunderstood us, Harry!!!

What we SAID was:

“It’s time to get rid of the filly, buster!!!”

(we meant Pelosi, of course!!)

landlines on January 6, 2011 at 12:10 AM

Unintended consequences—though don’t ask me what those might be. Surely there will be some, can’t miss.

jeanie on January 6, 2011 at 12:15 AM

Only do it if a sunset date is included in every bill.

MayBee on January 6, 2011 at 12:39 AM

If the “hold” isn’t secret, it is more or less worthless for Republicans.

Imagine you’re Jim DeMint putting a hold on the next Wise Latina. Every kook, freak, thug, and scumbag in the Democratic camp would be targeting you, your house, your family . . .

Why do you think the Democrats are so all-fired anxious to get rid of it? These aren’t decent people who play by the rules of civilization, they are violent radicals bent on winning at any cost.

Adjoran on January 6, 2011 at 12:44 AM

“There’s an article on this at Red State with a whole other point of view, and it is a little scary.”

I read the same article (written by Brian Darling) and cross-checked it to confirm its accuracy.

Everything Darling wrote is TRUE! There is no way in hell I am going to support this proposal from Udall, and frankly, I’m a bit dissapointed in people like Allahpundit and Foster for coming out in support of it.

Indy82 on January 6, 2011 at 8:38 AM

–Make all filibusters on substantive measures “talking” or “Jimmy Stewart” filibusters; Senators much actually stand and hold the floor.

“Distinguished ladies and gentlemen of the Senate: here is a list of constituents from my state who are opposed to this legislation: John Abbott who lives on 4321 Main Street, phone number…

(hours later)

…With the President Pro-Tem’s permission, while I replace my Depends, I now yield the floor to the distinguished Senator from…”

Seriously, the idea of allowing the minority to introduce three amendments is a good one, but other than that, the current filibuster rule (the Byrd Rule) can stand–it prevented horrible legislation from passing the lame-duck Senate last month!

The question becomes, why do DEMOCRATS want to change the filibuster rule NOW? When Democrats had 60 votes, after Specter switched parties and before Scott Brown’s election, they could have changed the rules THEN by overcoming a GOP filibuster against a rules change–why didn’t they?

Regarding legislation in the new Congress, anything coming out of Boehner’s House will likely be filibustered by Democrats, not Republicans, so why should Democrats raise the bar for blocking legislation from 41 to 50 votes (plus Biden), so that they can only afford to lose 3 votes instead of 12 from their own caucus?

IMHO, the real reason Dems are doing this has nothing to do with legislation, and everything to do with judicial and Cabinet nominations, where the House has no role. After they filibustered many Bush nominees, Democrats don’t want to let Republicans filibuster Obama’s nominees, so that Obama can grab power in the Executive and Judicial branches, especially at a time of “shake-up” in the White House. Cabinet secretaries can make “rules” that extend well beyond their tenure, while judges are appointed for life, making major decisions long after Obama has retired to writing his third autobiography in Hawaii and Indonesia.

Republicans should resist this temptation to “change the rules”, and they now have 47 votes, more than enough to filibuster a rules change, and without a rules change, the Senate re-convenes under the previous rules!

It would be more difficult to get House-passed legislation through the Senate, trying to get 13 Democrats to vote for cloture, but if McConnell plays his cards right, he could twist enough arms to get cloture in certain cases, since 23 Democrats and only 10 Republicans are up for re-election in 2012! If McConnell can’t get cloture, Republicans can always blame Democrats for obstruction during the 2012 campaign, as a justification for voters to turn the Senate red. Besides, getting 60 Senate votes for cloture is easier than getting 67 Senate votes and 290 House votes to override an Obama veto, so Republicans need to keep their DEFENSIVE weapon against Obama’s appointments: the filibuster.

Steve Z on January 6, 2011 at 12:52 PM