Is that a fact?
The GOP thinks that they will take the Senate next year. The Dems think they will hold on to it. Can’t we get bi-partisan support to eliminate the filibuster effective Jan 3, 2013? Jan 3, 2015? Jan 3, 2017?
That way, we get rid of it, but nobody knows which party benefits.
Finished reading the report I linked to above and it talks another option (in two flavors), both of which also require breaking with established precedent but could be done at any time.
Flavor 1
After a cloture vote has failed, the presiding officer of the Senate could issue a constitutional point of order ruling that the supermajority cloture rule is simply unconstitutional. This would break with the precedent, however, that the presiding officer does not issue constitutional points of order but puts them to a vote by the entire senate. When the minority party appeals the presiding officer’s point of order the majority party could table the appeal by majority vote (tabling is not a debatable motion) and, in effect, the filibuster option would be dead.
Flavor 2
After a failed cloture vote, a senator in the majority raises a constitutional point of order. Following precedent the presiding officer puts it to the full Senate for a vote but then breaks with precedent by declaring the issue non-debatable. Then a simple majority could affirm the constitutional point of order saying that the 60-vote cloture requirement is unconstitutional and it would be dead.
But I can see why neither side would be super eager to kill it on via that method.
The report also mentions that eliminating the filibuster through these types of gimmicks (my word, not the report’s) could cause problems. The Standing Rules have many strict requirements in them and in the day-to-day working of the senate much work is done via unanimous consent decrees where the Senate unanimously agrees to ignore some rule to get something done. If the filibuster is killed in a way that leaves the minority unhappy, they could just refuse to participate in unanimous consent decrees.
The problem with option “a” and it has been noted here. Nobody wants to listen to a Senator read the encyclopedia for 72 hours. The majority party senators will leave. When they do, the Senator reading the encyclopedia can note the absence of a quorum and then go smoke 'em if he’s got 'em until the Sargent at Arms rousts 49 other senators out of bed at 4am (while members of his own party are suddenly elsewhere, until one appears to relieve him). Such dedication of making him read for 72 hours requires the majority party to keep a quorum on the floor. Nobody likes this, so the mere threat will end the bill. Plus there are a thousand other things that need done and we can’t be tying up the Senate for months on end.
Option b is intriguing, and I like some flavor of it. I liked the old fashioned “let’s wait a minute” aspect of the Senate to keep the House from ramming something through, but the abuse of it is stifling. Maybe have a limited number of filibusters; maybe a filibuster delays passage for 6 months; maybe a certain, but definite, number of hours of debate after no cloture.
Sixty votes in the Senate for every piece of legislation is not what the framers intended and needs to be curtailed.
Interestingly enough, a speaker named Reed once presided over a major change to the Senate’s rules: “Reed’s Rules and the Disappearing Quorum”
Worse the the filibuster is the “Senatorial hold” where any one Senator can stop something from being even being considered. Until 2011, a Senator could even do this in secret (i.e., his/her name wasn’t even attached to the hold). That thankfully was eliminated by a 90+ vote.
If its’ not too much of a hijack, Justice Roberts switched to make it 5-4 to uphold the Social Security Act.
Justice Roberts also switched sides to uphold the ACA by a 5-4 vote.
The mere fact that we refer to this as “switching sides” shows how messed up the whole situation is.
The easiest way to get re-elected senator is to avoid casting votes on controversial issues, and the easiest way to do that for a senator of the majority party is to hide behind filibusters. S/he doesn’t have to make the hard votes and can blame lack of action on the issues on the filibustering minority party.
Maybe I’m making this up, but it seems that there was also at one time some discussion as to the type of issue that a fillibuster should be used for. I believe it was originally intended to permit the review of (read: scuttling of) some of the president’s appointments, but it is now used virtually any time a bill or proposal of any sort is moved toward passage. Maybe there could be some agreement that the filibuster be reserved for specific uses.
I wish I had quoted Rule 5 in Post #14 that said exactly this. Oh wait, I did.
In reply to your other post on the Senate rules of order, there was a political manouver that few except parliamentary law geeks like me care about. During the Obamacare debate, an unusually long amendent was introduced. A senator asked for it to be read in full as a delaying tactic and the Senator withdrew the amendment. The thing is, under Senate rules the amendment still should have been read. A point of order was made and the parliamentarian agreed that the amendment should be read. The presiding office ruled the point of order was not well taken and on appeal his ruling was upheld and the amendment was not read. This precedent set is that the Senate can blatantly (i.e. even against the parliamentarian’s suggestion) violate its own rules by majority rule.
Thomas Reed was Speaker of the House of Representatives. It was the House procedure that were changed. The situations are pretty similar however.
Harry Reid can’t overturn the filibuster himself. He needs a majority of the Senate to vote in favor of doing so. And the filibuster doesn’t just empower the Senate Minority in relation to the Majority it also empowers individual Senators in relation to both the Majority and Minority. Requiring an extra 10% voting margin to conduct controversial business creates more opportunities for individual Senators to extract concessions for going along with their caucus leaders. Harry Reid and Mitch McConnell may wish with all their hearts to push the button on the “nuclear option” but it’s a tough sell to get people to vote away some of their power and influence.
The flaws in this seem obvious to me. Limit filibusters by number and you’ll get the other side creating phony bills to get the other to use up their allotment.
The Republicans are the ones that have exploited the filibuster to this whole new abusive level. Get rid of it and ultimately it will be the Republicans who lose.