I’ve written before about the need to end the filibuster and I called for an end to the process. But last night I was reading through a very interesting discussion on politico.com’s Arena and I think I have changed my mind. Instead of ending the process entirely, the Senate should change its rules to make its use very rare. There are lots of good ideas expressed, so if you are interested, use the link and read through the entries.
Tom Korologos (billed as a Republican strategist) argued for keeping things as they are pointing out that it takes super-majorities of the Senate to override Presidential vetos and ratify treaties, but I disagree that those are the same thing and those are in the Constitution and are not just Senate rules. The point being that there should be some situation requiring a super-majority, but not every bill. There is something wrong when every piece of legislation coming before the Senate requires a 60 vote cloture to even proceed to debate. So what to do? Here are some ideas.
Theada Skocpol suggests
Much of this is happening by Senate custom and party rules — interacting with ideological and regional extremism — not because of the Constitution. The Senate and the Democrats should make changes that they will have to realize could work in the other direction at a later time. Filibusters should have declining margins as time passes, reducing the supermajority needed to proceed to a vote from 60 to 57 to 55 — and maybe even down to 53 or 50. Minorities should be able to force delay and protracted debate, but not block government action altogether.
I like Bernard I. Finel’s ideas
The American political system already contains a great number of veto points, so a supermajority requirement in the Senate is neither necessary nor conducive to good public policy. That said, I could see a case for the rare use of a filibuster in extreme circumstance. But I’d like to propose two modifications. (1) A filibuster should actually tie up Senate business completely. The party responsible for the filibuster should have to speak from the floor throughout the process, and should as a result take the blame for shutting down the legislative process and, indeed, in some cases shutting down the federal government. The cost-free filibuster we have now is simply too tempting to use for purely obstructionist purposes. (2) Maybe, like the challenge flag in pro football, each party could have a limited number of filibuster opportunities per legislative session. That would keep it an option for important issues, while not allowing the minority to be obstructionist across the board.
Christine Pelosi also agrees with the make them talk idea. Let’s make Senator’s who want to filibuster be like Jimmy Stewart in Mr. Smith Goes to Washington.
To these ideas I would add that even if the filibuster is maintained, let’s not allow it for Presidential nominations. Maybe Supreme Court, but not the lower courts and certainly not for cabinet members. And there shouldn’t be “holds” allowed for those nominees.
Lanny Davis is all for abolishing the filibuster and wants to file a lawsuit that it is unconstitutional. I think that might be going a little far but I do agree that
For Democrats: The filibuster is good when they were in the minority and they blocked numerous judicial nominations of President Bush, requiring Republicans to get 60 votes for cloture in order to obtain an “up or down” vote by majority rule. But the filibuster is bad when they are in the majority and the Republicans are insisting on 60 votes before they can have an up-or-down vote on health care. Yes, one was about judicial nominations. The other about health care. But as my law school professor used to say, “that’s a distinction without a difference.” The principle is the same — the constitution requires only majority rule — and so do Democratic principles. The Democrats ignore that principle that an up-or-down vote should be allowed, with majority rule governing, when they are in the minority, but insist on it when they are in the majority.
For Republicans: They sanctimoniously threatened a constitutional challenge and the “nuclear option” — ignoring Senate Rules to force up-or-down votes without 60 votes and cloture — when they were in the majority and insisted on the “up or down” vote for President Bush’s judicial nominees, and accused the Democratic Senators of being “obstructionists” when they were filibustering. (Indeed, that argument in large part defeated then Minority Leader Tom Daschle in his reelection race). But, shamelessly it seems, now that they are in the minority, Republicans have suddenly forgotten about the principle of majority rule and the need for an “up or down vote,” and now they are obstructing a vote on health care and requiring 60 votes to have it.
Can both parties at least admit to their double standard on majority rule vs. the filibuster?