published Sunday, December 16th, 2012

Fix the filibuster rule

Americans used to expect Congress to find enough bipartisan agreement to solve the nation’s problems, big or small. Abuse of filibusters in the U.S. Senate in recent years, mainly by Republicans, has trashed that prospect. Now, it commonly takes a super-majority of 60 votes in the Senate to pass any meaningful legislation — a circumstance that essentially allows the Senate’s minority party to paralyze the Senate and thwart progress of any sort.

Consequently, very few bills get enacted into law. Stalemate rules.

Observers once would have described filibusters the old-fashioned way. When bills proposing laws of various sorts got to the Senate floor for debate, opponents were allowed to rise and speak against the bill as long as they could stand and talk. When all the senators had had their say — however long it took — a vote was taken and a simple majority won.

The 1939 movie, “Mr. Smith Goes to Washington,” pretty much captured the historical essence of days-long filibusters. Opponents could talk a bill to death, or persuade their colleagues to make enough bipartisan changes to satisfy the opposition.

That hasn’t happened in years. Now, and especially in the last decade, it takes merely the threat of a filibuster to stall progress of a bill at almost any stage of the legislative process, from committees to a vote even to bring a bill to the floor for debate. The latter has become the common rule. Worse, instigators of a filibuster to defeat a bill don’t even have to identify themselves. Rather, they can anonymously place a “hold” on a bill — an implied threat of a filibuster relayed to the Senate’s majority leader by a minority leader.

And if the majority leader does call for a cloture vote — an attempt to get a 60-member vote to override the threatened filibuster — the minority party generally votes against cloture in lock-step uniformity, denying the majority the 60-vote margin needed to defeat a filibuster.

With control of the Senate in recent years split so narrowly that neither has a 60-vote majority to end a filibuster, the mere threat of filibuster reigns. The current Democratic majority, counting independents who usually caucus with them, will rise from 53 to 55 members in January. But that’s still not enough to defeat the minority’s paralyzing filibusters.

A recent report by the Brennan Center for Justice of New York University’s School of Law summarizes the recent history of filibuster abuse in a call for reform of the Senate rules. Among its findings:

• “As of October 2012, the current Congress has enacted 196 public laws, the lowest output of any Congress since at least World War II. This is not purely the result of divided party control of chambers. Control of the House and Senate also was divided from 1981 to 1987, and 2000 to 2003.

• “The current Senate passed a record low 2.8 percent of bills introduced in that chamber, a 66 percent decrease from 2005-2006 and a 90 percent decrease from the high in 1955-1956.

• “Cloture motions — the only way to forcibly end a filibuster — have skyrocketed since 2006, creating a de facto 60-vote requirement for all Senate business.

• “In the last three Congresses, the percentage of Senate floor activity devoted to cloture votes has been more than 50 percent greater than any other time since at least World War II, leaving less time for consideration of substantive measures.

• “On average, it has taken 188 days to confirm a judicial nominee during the current Congress, creating 32 ‘judicial emergencies,’ as designated by the Office of U.S. Courts. Only at the end of the congressional term in 1992 and 2010 have there been more judicial emergencies.”

It’s figures like these, documented in the stunning rise of filibuster threats in the last two sessions of Congress, that have led Senate Majority Leader Harry Reid to propose changes in the rules for filibusters. One change would require senators proposing a filibuster to find 41 votes in favor of it, rather than the other party having to find 60 votes for cloture. Another would require a “talking filibuster”: Senators in favor of it would actually have to stand and talk it out to sustain it. Whether Reid can persuade enough senators to ignore the regular rule that requires 67 senators to agree to change the rules, however, is unclear.

Senate Minority Leader Mitch McConnell predictably promises to wage war against any move to restrict the current abuse of filibusters. Republican House Speaker John Boehner threatens retaliation by majority Republicans there, as well. McConnell suggests that he would have fellow Republicans leave committees without quorums to conduct business if Reid tries to force rule changes.

Yet given the paralysis in the Senate due to the mere threat of hundreds of filibusters, both of Reid’s proposals seem reasonable. The legislative impasse needs repair. Congress’ record low approval rating in voter polls confirms that. If senators can’t fix the stalemate, they can’t fix anything else.

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