What Changes are Democrats Proposing?
The changes that Senate Majority Leader Harry Reid, D-Nev., is considering boil down to two changes. The first would eliminate filibusters on the Motion to Proceed — essentially, a motion to bring a matter up for debate. Right now, members can actually filibuster not just a measure, but even taking up a measure.
The more substantial change would be to return to some variation on requiring a vote of senators present, rather than the whole senate, in order to proceed. That would force the minority to keep members on the floor in order to keep a filibuster going, rather than forcing the majority to try to break it.
These two changes would not eliminate the filibuster, but they would require members to actually filibuster an act of Congress, rather than the idea of debate itself. It would also put the onus on the minority to keep the filibuster going once started — making it easier to break, and harder to sustain indefinitely.
Why Not Just Eliminate the Whole Thing?
If the filibuster is such an important part of gridlock, it may seem like a no-brainer to get rid of it. Still, there are reasons for both parties to be concerned about rule changes that affect the rights of the minority.
Democrats have held the Senate only since 2007. Prior to that, Republicans held the body for all but two years since 1995. Needless to say, your perspective on the filibuster changes once you’re in the minority. What had been a tactic to obstruct and delay now becomes a method to keep truly awful legislation from passing. One can imagine, five years from now, that a GOP-controlled Senate with just 52 Republicans could pass through anti-choice legislation, or reinstate Don’t Ask, Don’t Tell, or repeal the Affordable Care Act. Without the filibuster, Democrats could complain, but they’d be powerless to stop the legislation.
Additionally, some Democrats are simply leery of playing around too much with Senate traditions. The Senate prides itself on its institutional consistency, and at least theoretically, senators like to believe that they put the Senate above mere partisan aims. The filibuster may do more harm than good, but it’s harm with a long and storied tradition.
There are also good reasons why a parliamentary body should allow the minority, or even one senator, to delay legislation through the use of debate. Strom Thurmond was absolutely, horribly wrong about civil rights, but nobody can say that the Senate did not take note of his objections, nor that his complaints were stifled. In a democracy, free and open debate is not a luxury, but a necessity. Even when it makes it hard for you to get things done.
Filibuster reform has been held up in no small part because Senate rules require two-thirds support to amend them. Since the minority party benefits from the filibuster’s ability to stop the majority, Senators in the minority have been loath to support filibuster reform. With 40 votes against reform, any changes to the rules are blocked.
There is a time when that could change, however. The Senate has by long custom continued its rules from session to session, under the theory that two-thirds of senators were not up for re-election in the previous year, so the Senate, as an institution, has not changed. This stands in contrast to the House of Representatives, which adopts new rules at the start of each session.
There is not, however, any particular reason why the Senate must continue its rules at the start of a new Congress. The standing rules say they continue, but a new Congress could, in principle, simply author new rules, and declare that they need not be bound by the old ones.
That gives Democrats an opportunity. On the first day of the session in January, a majority of Senators could change the rules, or chuck them out and start over. The vote could even be structured to block a filibuster on the measure itself.
If Democrats decide not to change the rules, then they lose their chance until 2015 — meaning that the GOP would be free to continue to obstruct and delay. There’s no guarantee that Democrats will still hold the Senate at that point, either.
That is one more reason why Democrats may hesitate to change the rules altogether. Once the precedent is established that a majority can change the rules, there’s nothing stopping Republicans from changing the rules once they regain control of the Senate. Reid and his caucus have to balance the significant damage done by the filibuster with the prospect of further changes affecting them when they’re in the minority again.
Can the GOP Stop This?
Probably not. If the Democrats want to go ahead, there’s not much the Republicans can do to stop it. They can, however, retaliate with a series of parliamentary tricks, which could, in the short-term, cause more havoc than the filibuster.
Democrats who support changing the filibuster are hoping that the changes are minor enough that Republicans stop short of all-out war, and it’s likely they are. Still, saber-rattling is about all the GOP can do in the short term. The decision to go forward with filibuster reform is up to the Democrats, and they alone will have to decide whether the gain from erasing it is enough to outweigh the costs.
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