Who's Afraid of the Filibuster?

| Fri Jul. 30, 2010 5:00 AM EDT

As I've mentioned before, there's no serious question that Democrats can get rid of the filibuster if they want to. It's not even complicated. They can't do it right now, because it takes 67 votes to change Senate rules in the middle of a congressional session, but at the beginning of a congressional session they can write all the new rules they want and pass them with a simple majority. To simplify just slightly, all they have to do is wait until January when the 112th Congress meets for the first time, pass a rule that eliminates the filibuster, and then rely on the presiding officer—currently Vice President Joe Biden—to rule that this is kosher. Previous vice presidents from Richard Nixon forward have all agreed that this is legitimate, so there are no real disputes about precedent.

So that's no problem. The problem is that you still need 51 Democrats to sign on to this plan, and as The Hill reports, that ain't gonna happen:

Five Senate Democrats have said they will not support a lowering of the 60-vote bar necessary to pass legislation. Another four lawmakers say they are wary about such a change and would be hesitant to support it. A 10th Democrat, Sen. Carl Levin (D-Mich.), said he would support changing the rule on filibusters of motions to begin debate on legislation, but not necessarily the 60-vote threshold needed to bring up a final vote on bills.

No matter what anyone says, this has always been the reason the filibuster continues to exist: because both parties want it. They mostly don't want to admit it, but both Democrats and Republicans have always had an essentially defensive view of the power of government: They're more interested in stopping the other guys when they're in power than they are in getting their own things done when they're in power. In fact, for a lot of senators, the filibuster acts as a pretty convenient excuse for not doing things they don't want to do in the first place. It allows them to deliver partisan stemwinders to the faithful during campaign season without having to worry about actually delivering once they're safely back in Washington.

So despite the massive abuse of the filibuster that we've seen over the past few years, in which Republicans have made its use so universal that even Mother's Day resolutions now need 60 votes to pass the Senate, it's not going anywhere.

But how about something more modest? Even that would be hard. Dylan Matthews reports that a hearing this week on two proposals to make small changes to the filibustering rules didn't exactly light the world on fire:

Committee Chairman Chuck Schumer was enthusiastic about Lautenberg's plan, calling it "ingenious," but was more measured on Bennet's, saying only that it was "extremely interesting" and acknowledging that Bennet had "worked long and hard" on it. Robert Bennett, the committee's ranking Republican (and no relation to Michael Bennet), expressed concern that the proposals would turn the Senate into the House, and wreak havoc on the Senate calendar by effectively establishing a one-track legislative process.

Lautenberg's plan is modest indeed: Current rules include a three-day delay between the time cloture is invoked against a filibuster and the vote itself. All his proposal does is force filibusterers to actually talk during that time. If they stop, the majority leader can call the vote immediately. This is, truly, the most meager change imaginable: It would be no trouble for the filibustering party to tag team its way through three days of floor speeches, and even if they didn't the only result would be a slightly faster process. You'd still need 60 votes to pass anything.

Bennet's proposal, the one so outlandish that Schumer barely wanted to acknowledge its existence, would reform the practice of anonymous holds and lower the bar for ending a filibuster to 55 votes unless the minority party can find at least one member of the other party to join them. In other words, purely partisan filibusters would need 45 members to sustain them instead of 41. But that's apparently out of the question.

So are there any changes that are possible? Probably not, but my best guess for a rule change that has at least a chance of getting bipartisan support is something limited to the practice of holds. Like the filibuster, holds have gotten wildly out of control over the past couple of years, and it's conceivable that there might be bipartisan support for reining them in. There are two reasons to be optimistic on this score. First, even rabid partisans mostly agree that presidents ought to have the right to appoint their own people to executive branch positions (judges are a different story). Second, this is narrow enough that a deal is possible. In return for tightening up the rules on holds, the minority party might get, say, a better deal on committee staffing. There's scope for horsetrading here.

And the reason to feel pessimistic about even a deal on holds? Because holds are the perfect expression of senatorial privilege, the ability of any single senator to bring the entire chamber to a halt if he feels like it. It's what gives them bargaining power for all their little pet projects, and senators—whether in the minority or not—simply aren't willing to give that up.

Bottom line: Reform of anything related to filibusters or holds is pretty unlikely. No matter what Harry Reid says, he almost certainly doesn't have the votes to do anything serious.