There are at least two pending proposals to change Senate Rule XXII, which governs the filibuster. While all 53 returning Democrats have pledged to support a rule change next week, they must agree on which change to make. That will depend on why they think the filibuster exists. (More)

The Filibuster, Part II – Which Change … and Why?

This week Morning Feature considers proposals to reform the Senate filibuster rule, which all 53 returning Senate Democrats pledged to attempt next week when the 112th Congress opens. Yesterday we looked how the filibuster was created. Today we examine the reform proposals that have been offered recently. Friday we’ll conclude with the procedural hurdles, and why even 53 votes does not guarantee success.

Apart from the procedural hurdles we’ll discuss tomorrow, there is a substantive hurdle to changing the filibuster rule: at least 51 Senate Democrats must agree which change to make.

The menu so far:

JanF summarized the proposals earlier this month in HEMMED In – Filibusted. Note that Sen. Tom Udall (D-NM) has not offered a specific filibuster rule. He proposes that a new rule can be adopted by a 51-vote majority when the 112th Congress convenes next week. But Senators Tom Harkin (D-IA) and Jeff Merkley (D-OR) have offered specific changes.

  • Harkin Proposal – Sen. Harkin’s proposed change would require 60 votes for cloture when a filibuster begins, but reduce the threshold for cloture with each successive attempt. I’ve seen two variations, one allowing cloture votes every two days, another every 10 days. Either way, the number of votes needed for cloture decreased by three with each attempt. Thus, 60 votes would be needed on the first cloture attempt, 57 votes on the second, 54 on the third, and a simple 51-vote majority on the fourth attempt. This would allow a minority to extend the debate from 6 to 30 days, depending on the period between cloture votes. But the minority could no longer permanently block a final vote on a bill.
  • Merkley Proposal – Sen. Merkley’s proposed change would shift the burden of sustaining the filibuster from the majority to the minority. At present, only one senator is needed to announce a filibuster, while 60 must be present and ready to vote for cloture to end it. Sen. Merkley’s rule would force an increasing number of dissenting senators – he proposes five for the first 24 hours, 10 for the next 24 hours, and 20 thereafter – to be present on the Senate floor to sustain a filibuster. This would apply even during quorum calls. At any point, any member could ask for a count of senators on the floor objecting to regular order. If there are not enough to sustain the filibuster, it ends and a simple majority can pass the bill. If there are, cloture would still require 60 votes.

Other proposals – ranging from requiring those filibustering to stand at the podium and talk non-stop, up to eliminating the filibuster entirely or at least for certain votes – have been discussed in the media but not yet formally proposed.

Why have the filibuster?

Which proposal to choose depends on why you think the filibuster should (or should not) exist. As we discussed yesterday, the filibuster was not created by the Framers as a means to protect minorities. The filibuster rule is not in the Constitution, and did not exist in the Senate until 1805, when outgoing Vice President Aaron Burr suggested the Senate strike their “Previous Question” rule. This rule allows a simple majority to end debate at any time by “calling the question.” As we saw yesterday, that rule can be abused to deny dissenters a chance to be heard. The rule also exists in Robert’s Rules of Order, and I’ve served on committees where it was abused. Such abuses are frustrating, unfair, and violate one of the most basic human impulses: the need to be heard.

The Senate agreed with Burr and repealed their “Previous Question” rule. That left no parliamentary mechanism for ending debate on a bill, and the filibuster was born. But whatever Burr’s reasons, the filibuster has evolved into something more: giving each senator a near-veto. While a senator’s filibuster does not block action in the House – as a presidential veto does – from 1917 until 1970 cloture required the same two-thirds supermajority needed to override a presidential veto. While the rule was changed in 1970 to require only 60 votes for cloture, that still left every senator with a power second only to the presidential veto.

Keep that last italicized phrase in mind when a senator says, as some have said before and at least one doubtless say will next week, “this will make us no different from the House of Representatives.” Every current senator has served his or her entire Senate career with near-presidential power over Congress.

If their goal is to preserve that near-veto power with slightly greater limits, look for senators to rally around Sen. Merkley’s proposal. His rule would still allow 20 senators to block legislation indefinitely unless there were 60 votes for cloture.

If their goal is to ensure the minority an opportunity to speak, look for senators to rally around Sen. Harkin’s proposal. His rule would allow dissenters to extend the debate, but a minority could no longer block a vote indefinitely.

I favor Sen. Harkin’s rule. How about you?

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Happy Thursday!