Filibuster reform back on the table?

The filibuster has been brought back up in American politics. Frustrated by the failure to move the Import-Export bill out of his chamber (though it did pass last night), Senate Majority Leader Harry Reid (D-NV) has once again brought up the idea of the so-called “nuclear option” to get rid of the procedural tactic to stall legislation:

Senate Majority Leader Harry Reid (D-Nev.) will not attempt to strip Republicans of their power to filibuster before the November election but is leaving open the possibility if Democrats hang on to the Senate.

The Democratic leader caused a stir on Thursday when he slammed a Republican objection to passing Export-Import Bank legislation without amendments and said he should have listened to colleagues who pushed for changes in Senate rules.

But Reid on Monday said he has no plans to attempt to limit Republicans’ ability to block legislation by a tactic known as the constitutional option — or, by critics, as the “nuclear option.”

“We’re not going to do it this Congress,” Reid told The Hill.
Democrats are leaving open the option of rewriting the filibuster rule if they keep their Senate majority. Republicans are unlikely to push for such reform if they capture the chamber because they are ideologically opposed to curtailing the power of the Senate minority.

Changes to the filibuster were on the table just after the 2010 mid-term elections. Senate Democrats wanted to require an sustained filibuster, meaning that a member would opposing a bill would have to speak from the floor constantly to delay a vote for final passage. Conservative bloggers actually approved of the idea, though that didn’t make it in the final agreement, which made some very minor reforms, including the elmination of “secret holds.” Some other Senate Democrats, including Sen. Tom Udall (D-NM), wanted to eliminate the filibuster all together through parlimentary tricks and gimmicks.

While this issue seems to have headed back to the sidelines for now, a recently filed lawsuit will challenge the constitutionality of the filibuster in federal court:

The nonpartisan nonprofit Common Cause sued the U.S. Senate on Monday, challenging the constitutionality of the filibuster rules that require routine 60-vote thresholds for bills and nominations that often have majority support. Several House Democrats and three undocumented students who would be aided by the so-called DREAM Act also joined the suit.
“They are putting the Senate in a straitjacket,” said Stephen Spaulding, staff counsel for Common Cause. “They cannot adopt their own rules, and that’s an issue we think the courts should settle.”
In addition to Common Cause, three DREAM Act students and four House Democrats — Reps. John Lewis and Hank Johnson, both of Georgia, Michael Michaud of Maine and Keith Ellison of Minnesota — were named as plaintiffs in the suit.
The Democratic lawmakers argue that their votes in the House have been “diluted” by the filibuster rule, since such bills as the DREAM Act and campaign-finance DISCLOSE Act passed the House and won backing from a majority of senators but fell short of the 60-vote threshold. The DISCLOSE Act garnered 59 votes in the upper chamber.

“These bills continually pass the House and get blocked in the Senate,” said Sarah Dufendach, vice president of legislative affairs for Common Cause, which pushed for the DISCLOSE Act. “Their vote is being diluted. Their constituency is being diluted.”

Apparently, Mr. Spaulding has never read the Constitution. You may not like the procedure in the Senate, but Article I, Section 5 Clause 2 is pretty clear that each chamber of Congress “may determine the Rules of its Proceedings.” That’s a glaring hole in their case, one that makes me wonder why they’ve even bothered outside of the fact that filibuster will, once again, be a campaign issue in the fall.

At the Washington Post’s “Post Partisan” blog, Jonathan Bernstein completely dismantles the lawsuit, pointing out the absurdity of it:

The Common Cause group argues that constitutional provisions are not unlimited. That’s true, but they are wrong that Senate Rule 22, the rule that governs filibusters and cloture, conflicts with other constitutional provisions.

For example: The plaintiffs argue that the Constitution specifies certain votes require Senate supermajorities, and therefore the supermajority for cloture conflicts with a constitutional presumption that all other votes will be by majority rule. That logic just doesn’t make sense.

The simplest way to reconcile the requirement of certain supermajorities with the instruction that the Senate gets to set its own rules is to say that the Senate sets its own rules except for where the Constitution specifies otherwise. Thus the Senate does not have the option of not keeping a journal of its proceedings, but it does have the option of whether to make all votes recorded votes; it must use a supermajority for passage of treaties but can choose to handle floor procedure however it sees fit.

Looking at the larger picture, the Common Cause group makes much of majority rule. The truth is that filibusters (and their much-despised cousin, holds) are only one way that the Senate, and that Congress in general, subverts simple-majority rule. The majority party can prevent popular items from coming to a vote by killing them in committee, by simply refusing to offer them on the floor or by blocking amendments from being offered.

It makes little sense to say that the Constitution requires a simple majority to bring something to a vote on the Senate floor but permits a well-positioned minority to block it before that point.

To put it another way, eliminating the filibuster wouldn’t achieve majority rule in the Senate; it would achieve what the House has — majority-party rule. That’s a very different thing. And it’s extremely difficult to believe that the Constitution mandated majority-party rule, given that parties didn’t even exist yet.

The plaintiffs begin by asserting that “Nothing is more fundamental to a democratically elected legislative body than the principle of majority rule.” That, too, is not true. We use majority decision for all sorts of good reasons, but what’s really fundamental are ideas of representation and democracy, and neither of them is strictly dependent on majority rule; to the contrary, virtually everything about Madisonian democracy leads us to be suspicious of simple-majority rule — beginning with the existence of the Senate in the first place. Bicameralism is all about undermining simple-majority rule.

No one said governing was easy or that there wouldn’t be roadblocks along the way. The filibuster, which has been around for 200 years, plays a legitimate role in Congress. If Republicans or a group sympathetic to them had filed this lawsuit, Democrats would be screaming at the top of their lungs about “minority rights,” and justifibly so. They did this in 2005 when then-Senate Majority Leader Bill Frist (R-TN) was going to try a parlimentary trick to get rid of the filibuster for judicial nominees. Cooler heads prevailed, though I’m still not sure the deal made was the right one.

What’s next, a lawsuit requiring that the party that controls the presidency also controls Congress? That’s on the same line of thought as the lawsuit against the filibuster. The legislative process wouldn’t be slowed down then, right? The Democrats in that joined this absurd lawsuit wouldn’t feel like their votes or constitutencies are “being diluted” anymore.

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