Reworking the Filibuster

By Fester:

In an off-handed way, I have to respect the Republican Party's basic approach even though I think it will kick them in the ass.  They are an opposition party that is actively seeking to oppose an agenda that they disagree with.  I think their opposition rhetoric is ridiculous and makes them look stupid, but they are attempting to lay a marker to the American public that they would do things differently if/when the Democrats screw up in full Schiavo-Katrina mode.  This is a good thing as it aligns the incentives up for Democrats to be minor instead of major douche-bags and it allows for a clearer path of public accountability as people don't need to be political junkies to know who to punish or reward at the next election.

I agree with BJ that liberals must be very careful about wishing to do away with the filibuster.  I think it needs to be reformed.  The basic American framework has been to give a determined minority some tools to protect its vital interests.  So I understand the threat of the filibuster on Supreme Court nominees, appeals court nominees, and major direction changers in public policy such as a decision to go to war or to pass the largest discretionary spending package in nominal terms.  Those are game changers, and our system does not want game changers happening every six months. 

One of the big reforms to the filibuster that I would support would be a redistribution of the costs of filibustering.  Slate explains that right now, the up all night and reading from the phone book side of the equation is fairly easy on the filibustering side while the faction that wants to vote has to incur significant personal expenses:

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.

This is an ineffective signal as it is not costly to the minority that opposes the legislation.  And if a signal is not costly, it produces a whole lot of false positives so that renaming a post-office could become a fillibustable stand.  We don't want that systemically.  We want the filibuster to be a tool that is only used on high importance and high salience issues that have the potential to be game changers.

Hilzoy at the Political Animal proposes a couple of rule changes that could invert the cost structure:

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.

A much simpler rule change would be a complete inversion of the assumptions.  If the Senate rules assume that a vote is to go forward in all cases where there are not forty one votes against cloture, that would completely invert the incentive structure. 

Any of these rule changes would preserve the filibuster for game changing moments but it would raise the cost so the every day usage of this tactic would become extremely expensive and unpopular for a minority to use on low salience disputes.