Ruth Marcus | Building a Better Filibuster

Washington – My approach on the filibuster is the same as Bill Clinton’s on affirmative action: mend it, don’t end it. Here are four and a half steps to a better filibuster.

Step One: No filibuster for executive branch positions.

The president is due enormous deference in staffing his own administration. That’s been sorely lacking in recent years. The latest victim is Dawn Johnsen, the president’s choice to head the Justice Department’s Office of Legal Counsel, whose nomination was withdrawn after languishing for 14 months.

Once, filibustering a nomination — executive or judicial — was a rarity. Defeating a nomination by filibuster was rarer still. In the 60 years before Barack Obama took office, cloture petitions, the procedure for ending a filibuster, were filed for 32 executive branch nominations. During Obama’s presidency, cloture petitions have been filed in the case of 14 executive branch nominees. This understates the problem because it does not include nominees such as Johnsen who never got that far.

Some filibuster critics have lumped together executive branch and judicial nominations, contending that the filibuster is inappropriate or even unconstitutional in both cases, or that filibustering judicial nominees is particularly noxious.

I’d leave the filibuster where it is — a break-in-the-case-of-emergency tool — for judges. The Senate should be more assertive when it comes to a lifetime appointment.

Step Two: Allow only one bite at the apple.

A single senator seeking to gum up the works can filibuster the proposal to take up a measure, not simply the measure itself. Because it takes time to end debate (see Step Three), this doubles the opportunity for gridlock. It breeds filibuster as harassment, even when the underlying measure is overwhelmingly popular. Democratic Sens. Evan Bayh of Indiana and Michael Bennet of Colorado have recommended doing away with the ability to filibuster a motion to proceed. They’re right.

Step Three: Grease the skids.

The existing rules don’t only slow things down because they require 60 votes. They slow things down because they also take up a lot of Senate time — a huge disincentive to trying to end debate. Once a cloture petition is filed to cut off debate, it must sit around for two days. After that, the rules provide for 30 hours of debate before a vote to end the filibuster. During those 30 hours, the Senate can’t take up other business. This delay is unnecessary and counterproductive. It sounds like an oxymoron, but a fast-track filibuster would be a huge improvement.

Step Four: Be patient.

Fixing the filibuster is going to take time. Changing Senate rules generally requires a two-thirds vote — more than the number to overcome a filibuster. There is a way to get around this, but it would cause an uproar.

So the only realistic fix is one that would take effect far enough into the future that the senators voting won’t be certain which side it is likely to benefit when it actually happens. It would be nice if enough Republicans and Democrats would agree to change the rules as of the new Congress, in January 2011. Practically, however, it will probably take the prospect of the White House changing hands to make the deal doable. An agreement to fix the rules down the road could also ameliorate behavior now.

Step Four and a Half: There’s nothing magical about 60.

Until the rules were changed in 1975, ending debate required 67 votes. A 60-vote supermajority is not inscribed in stone, although it’s a reasonable compromise between a simple majority and two-thirds. If a lower number would lure more supporters, fine by me.

Iowa Democrat Tom Harkin has suggested a gradually lowering threshold to end debate: 60 on the first vote, 57 two days later and so on until only a simple majority is required. But the filibuster’s value is not as a delaying tactic, it is as a supermajority requirement.

It’s popular to argue that filibuster abuses could be curtailed by requiring Mr. Smith Goes to Washington-style marathons. This makes for good theater, but it would end up making life more difficult for filibuster opponents, who would be required to maintain a majority on the floor to keep the Senate in session.

A better solution would be changing the rules to help end the paralysis, not make it more telegenic.

Ruth Marcus’ e-mail address is [email protected].

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