After two years of accelerating frustration in the Democratic base, younger U.S. senators led by Claire McCaskill of Missouri, Tom Udall of New Mexico, and Jeff Merkley of Oregon are trying to put an end to imaginary filibusters.
But they worry that the two party leaders—Democrat Harry Reid of Nevada and Republican Mitch McConnell of Kentucky—will cut a separate peace that does not go far enough.
Under a procedure introduced in 1975, senators who want to filibuster no longer have to actually talk on the Senate floor. They simply register their intent to filibuster and a supermajority of 60 votes needed to cut off debate is automatically triggered, as though a filibuster were actually going on. For instance, the Sept. 11 health and compensation act was held up for four years since its 2006 introduction. In December, Sen. Tom Coburn of Oklahoma singlehandedly delayed the measure again to provide medical assistance to first responders at the World Trade Center complex in 2001. Coburn never had to filibuster.
Last month, every Democratic senator except the retiring Christopher Dodd of Connecticut signed a letter to Reid calling for changes in the filibuster.
The relatively new 1975 filibuster procedure caused all kinds of compromises and changes in various pieces of legislation during the last Congress, on issues from health care to the stimulus, because a single senator could hold the Senate hostage merely by threatening to conduct a silent filibuster. Nor was it just Republicans. A single Democrat could—and a couple did—wander off the reservation and extort the Senate for special goodies. As a result, Democratic efforts on various issues over the last two years dragged on in the Senate—they usually were enacted quickly in the House, which has no filibuster—and often did not resemble Democratic bills when they were finally passed.
A “make them filibuster” movement sprang up around the nation, promoted by the liberal blogosphere and some House members. The new effort by Udall, Merkley and their colleagues has generated cheer in those same quarters. But news coverage of the effort still confuses traditional filibusters with post-1975 filibusters, and there is hesitation about how to change the system. Some critics say the proposed reforms themselves are flawed.
When Reid became majority leader, he was in a poor position to urge reform because as minority leader he had vociferously defended the filibuster as a way to stop judgeship nominations by George W. Bush. But the Nevada senator had to yield to rising sentiment among his fellow Democratic senators for change.
When Reid started talking about changes in the filibuster system, one anonymous blogger wrote caustically, “Reid himself, on the other hand, is much wiser than the Founding Fathers.” But the traditional filibuster, contrary to what senators often claim, was not a creation of the Founding Fathers. It developed in the Senate in 1806, in what some scholars say was an accidental rules change that some senators did not understand. The 1975 system has even less linkage to the Founders.
National Journal reported on Dec. 22, “Among the chief revisions that Democrats say will likely be offered: Senators could not initiate a filibuster of a bill before it reaches the floor unless they first muster 40 votes for it, and they would have to remain on the floor to sustain it. That is a change from current rules, which require the majority leader to file a cloture motion to overcome an anonymous objection to a motion to proceed, and then wait 30 hours for a vote on it.”
But, in fact, no rules change is needed, because the imaginary filibuster was implemented in 1975 without the rules being changed. In 2009, when the RN&R tried to find the rule covering imaginary filibusters, it didn’t exist (“The world’s greatest dysfunctional body,” RN&R, Nov. 26, 2009). According to the Senate Historical Office, the rules have never been changed to reflect the 1975 innovation: “The only rule that the Senate has regarding filibusters and cloture [ending debate] is Rule 22, which sets a 3/5ths vote for cutting off debate, which was adopted in 1975. The ‘two-track’ process is simply a leadership tactic and is not codified in the rules.”
So Reid could end the imaginary filibuster simply by announcing the procedure is being discontinued, without any need of a rules change. But even the younger reformers are calling for Byzantine changes—such as the 40-vote threshold—instead of simply ending the 1975 system. They call for new rules to regulate the imaginary filibuster instead of getting rid of it, which would codify the 1975 system in the rules. And whether it would actually solve the imaginary filibuster problem is far from certain. The Udall changes may be an imaginary solution. They have received criticism for how little they would accomplish—“slight,” “modest” and “very minimal” are terms that have been used in the Washington Post to describe them. If all the pressure and activism on behalf of filibuster reform results in only minor changes, frustration in Democratic ranks will only grow.
“There need to be changes to the rules to allow filibusters to be conducted by people who actually want to block legislation instead of people being able to quietly say ‘I object’ and go home,” said Sen. McCaskill.
If Reid and the Democrats dropped the imaginary filibuster, it would still leave the traditional filibuster in place, something that is also poorly understood. Many critics of plans for changes in the filibuster claim those changes would end filibusters altogether.
In North Dakota, for instance, the Minot Daily News editorialized:
“Senate Majority Leader Harry Reid reportedly wants to focus on what he is calling ‘filibuster reform.’ We’ll translate that for you: Reid wants to eliminate filibusters to make it less easy for substantial minorities in the Senate to block his liberal agenda.”
In fact, Reid has no intention of eliminating filibusters altogether. Only very reluctantly during his reelection campaign did he finally agree to do something about imaginary filibusters, and he has said nothing to suggest he wants to do away with all filibusters.
But what form the Reid/McConnell effort would take is unclear, though a Democratic aide has confirmed it is going on.
Brian Beutler at Talking Points Memo wrote on Dec. 30, “In a phone interview with me Wednesday, Udall described negotiations between Senate Majority Leader Harry Reid, Minority Leader Mitch McConnell, and Sens. Chuck Schumer (D-NY) and Lamar Alexander (R-TN) as a ‘separate track’ from his own efforts.”
“I’m not privy to those conversations,” Udall said.
Beutler’s article was headlined, “How Harry Reid And Mitch McConnell Could Upend Filibuster Reform.” Another report, this one at Newser.com, is headlined “Reid, McConnell May Weaken Filibuster Reform,” an indication of the suspicion that surrounds the issue.
In the Jan. 2 New York Times, former vice president Walter Mondale—who during his career as a Minnesota senator tried hard to do away with the filibuster—recalled that the 1975 changes were done in the name of reform, but resulted in unforeseen circumstances.
“Reducing the number of votes to end a filibuster, perhaps to 55, is one option,” Mondale wrote. “Requiring a filibustering senator to actually speak on the Senate floor for the duration of a filibuster would also help. So, too, would reforms that bring greater transparency—like eliminating the secret ‘holds’ that allow senators to block debate anonymously.”
At this writing, the effort at change is expected to get underway on Jan. 5 or 6.