Filibusters Again

Steve, Matt Yglesias, and Kevin Drum are all calling for reform of the filibuster. I agree. I am of two minds on the question of eliminating it entirely. (To anyone who thinks it’s just obvious that the filibuster should be eliminated, I have three words for you: Janice Rogers Brown.) But what seems absolutely clear is that if it is kept around, it ought to be transformed back into a tool that is actually painful for the minority to use, and that they will therefore use only when they feel very, very strongly. As Kevin wrote:

“The filibuster was never intended to become a routine requirement that all legislation needs 60% of the vote in the Senate to pass. But that’s what it’s become. It’s time for reform.”

I don’t think it’s enough, though, to say that Senators who want to filibuster should be made to actually stand up and speak for hours on end. To see why, consider this:

“While a filibuster would seem to be more taxing on the side doing the talking, that isn’t necessarily the case. The filibusterers need only one person in the Senate chamber at any one time, prattling away. The other side must make sure a quorum — a majority of all senators — is on hand, a constitutional requirement for the Senate to conduct business. If there’s no quorum after a senator has demanded a quorum call, the Senate must adjourn, giving those leading the filibuster time to go home, sleep, and delay things even more. To ensure a quorum during the rancorous civil rights filibusters, cots were set up in Senate anterooms, and majority senators presented themselves in bathrobes during early-morning quorum calls.

Those seeking a quorum can even demand that the Senate’s sergeant at arms arrest senators who aren’t present and drag them into the Senate chamber, a measure that has led to absent senators playing hide-and-seek with police officers around Capitol Hill. As recently as 1988, officers physically carried Sen. Robert Packwood onto the Senate floor at the behest of then-Majority Leader Byrd.”

This means that the pain of filibusters falls disproportionately on the side that is trying to end debate, not on the side that is mounting the filibuster. Senators do not like to hang around the Senate all night long. Sometimes, they would rather catch up on their sleep, go to fundraisers, fly back to their districts, or do whatever else they feel like doing. As things stand now, only one Senator from the side mounting a filibuster has to give up the rest of his or her life in order to be present in the Senate. The rest of them can just catch up on their beauty sleep. The side that is trying to end the filibuster, by contrast, has to keep almost all its members around in case of quorum calls.

If we’re going to reform the filibuster, this has to change. The Senate might make cloture votes require 60% of the votes of those who are present and voting, for instance. That would mean that the side that was mounting a filibuster would have to keep all its members around for the duration. Alternately, the Senate might adopt a rule that said that during filibusters, if a quorum was not present, the Senator who was speaking could decide to go on speaking or to allow a vote on cloture, to be decided by a majority of those present and voting. If s/he decided to go on speaking, s/he could do so, but no other Senate business could be conducted until the next business day. If s/he opted for the cloture vote, it would take place.

There might, for all I know, be problems with either of these proposals. And there’s probably an even better proposal out there. But what has to change, I think, is the fact that Senators can now declare their intention to filibuster and either have their way (if no one forces an actual filibuster), or visit considerable inconvenience on their opponents (if a filibuster is forced), without having to suffer the same inconveniences themselves.

That’s an incredibly perverse set of incentives. It might have been designed to create the idiotic situation we have now, in which a party that has seventeen fewer Senators than the other is nonetheless in a position to dictate what the majority party can pass, not just on issues on which they feel very strongly, but as a matter of course.