Back in 2010, I wrote about the filibuster in a post called “Puppies, Cats and Filibusters“. In it I argued for the talking filibuster. It didn’t seem at the time that there was any real move to do away with it totally, but making someone actually show up and explain why while holding the floor and appearing on C-SPAN seemed reasonable. It has only taken a few years, but it looks like Harry Reid and a number of Senate democrats are moving toward a similar solution. I am still waiting, however, for a clear explanation of how exactly the change could be accomplished.
Here is what I understand so far. It usually takes 67 votes to change Senate rules, but there is a mysterious thing called the “nuclear option” where the rules could be changed with only 51 votes. We know there are 53 Democratic senators and 2 who will caucus with them at least one of whom (Saunders, VT) should be voting with Reid on this.) So there are probably enough votes if there is some party solidarity. But how does that “nuclear option” work? That is the question.
Senate Republicans have refused to let scores of bills go forward in recent years, often because Mr. Reid will not allow the party to put amendments on those bills. This practice is deplored by the minority in both chambers, but only in the Senate can bills be stopped through the minority protest. Mr. Reid would like to limit what procedural motions are subject to filibusters, and to force senators to return to the practice of standing around forever, reading the phone book or what have you, if they choose to filibuster a bill before its final passage.
“If a bare majority can proceed to any bill it chooses,” said Mr. McConnell, deeply angry, “and once on that bill the majority leader all by himself can shut out all the amendments that aren’t to his liking, then those who elected us to advocate for their views will have lost their voices in this legislative process.”
Mr. Reid countered that the filibuster was “not part of the Constitution.”
“It’s something we developed here to help get legislation passed,” he said. “Now it’s being used to stop legislation from passing.”
McConnell is referring to the Democrats’ proposal to change Senate rules with 51 votes rather than 67. But his outrage isn’t particularly convincing. As Senate whip, McConnell was a key player in the GOP’s 2005 effort to change the filibuster rules using — you guessed it — 51 votes. As he said at the time, “This is not the first time a minority of Senators has upset a Senate tradition or practice, and the current Senate majority intends to do what the majority in the Senate has often done–use its constitutional authority under article I, section 5, to reform Senate procedure by a simple majority vote.”
Now, Reid, at the time, was steadfastly opposed to changing the rules with 51 votes. He condemned the idea as “breaking the rules to change the rules.” So McConnell isn’t the Senate’s only inconsistent member on this point. But the fact is that McConnell was right the first time: The reason that Republicans believed they could change the rules with 51 votes in 2005 and Democrats believe they can do the same today is that they can.
So I guess it really is a constitutional not nuclear option to change the rules by a simple majority. And the changes being proposed are pretty modest. Basically you could only filibuster final passage of a bill, not bringing it to the floor at all. The Republicans seem to want to amend bills and I think this is OK, but there has to be acaveat that any amendment must be related to the actual substance of the bill. Room for some compromise here?
But if you want to know what this is important at all think about all the judges being held up, all the bills that don’t come to the floor of the Senate because someone (and we currently don’t have to know who) decides they want something to come to a vote.
This is from the Washington Post.
In order to overcome a filibuster — when a political party attempts to block or
delay action on a bill — the Senate can invoke a procedure called cloture. Sixty
votes, or three-fifths of the Senate, is required for cloture regardless of
whether all senators are present and voting. If cloture is passed, a time limit
is placed on the debate, ultimately ending the filibuster. Read related article