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November 12, 2012 11:32 AM Get Filibuster Reform Right

By Jonathan Bernstein

It’s looking more and more as if something will happen on filibuster reform. Greg has a total of 50 Members of the new Senate on record as supporting at least some kind of reform. That includes the Majority Leader, which makes some action at least somewhat likely.

The key to filibuster reform, however, is getting it right. And that’s not easy.

There’s a lot of bunk on filibusters, including in proposals from Senators, who should know better. For examples, there’s been a flap for some time about trying to prevent “secret” holds. The problem is that making holds public wasn’t likely to, and didn’t, change anything. Much of the discussion seemed totally oblivious to why holds exist in the first place, and why a majority party might find it a useful part of Senate procedures. That’s not to say that one can’t oppose holds, but only to say that it’s worth understanding this stuff before, not after, you propose specific reforms.

So for example Ezra Klein (who I’m pretty sure I disagree with about exactly what should happen) is exactly correct about this:

The problem with the filibuster isn’t that senators don’t have to stand and talk, or that they can filibuster the motion to debate as well as the vote itself. It’s that the Senate has become, with no discussion or debate, an effective 60-vote institution. If you don’t change that, you haven’t solved the problem.

Yup.

Here’s the deal. The Senate needs to decide whether it’s going to be a chamber run by party majority; by 60 votes; or by some combination or other compromise.

If it’s to continue to be a 60 vote chamber, then changing the aesthetics of it or marginally inconveniencing the minority (perhaps at more of a cost to the majority) is pointless.

If it’s to be a majority-party-rule chamber, more or less the way that the House of Representatives has been for the last few decades, then there’s no real point in hiding it with mumbo-jumbo.

I’m against both of those, however. I like the idea of retaining the current possibilities for individual Senators and small groups of Senators to have considerable clout. I also like the idea of preserving some protection for intense minorities, especially when they are opposing relatively indifferent minorities. What’s more, while I’m very much in favor of strong parties, the current political system rewards partisanship almost everywhere; I’d like to see at procedures which at least open up possibilities for cross-partisan alliances. I also believe that different rules are appropriate for the different functions of the Senate: legislating, confirming executive branch nominations, confirming judges, and perhaps appropriating.

Now, if you want the 60 vote Senate, that’s easy. If you want a majority-party-rule chamber, that’s pretty easy, too. But if you have more complicated goals, then you have to be awfully careful about how you go about it.

Forcing a “talking” filibuster has virtually nothing to do with that. Changing the number of votes has little or nothing to do with it.

I’ve made my proposals. I’ll be pressing them again. But the real key to all of this, again, is to figure out exactly what you want, and then design procedures to achieve it. Simply being frustrated at the status quo is very understandable (and a good prod to action), but we outsiders — and Senators themselves — can, and should, do better. Here’s hoping for reform. And here’s hoping for an intelligent debate about reform, and well-thought-out solutions.

[Cross-posted at A plain blog about politics]

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Jonathan Bernstein is a political scientist who writes about American politics, especially the presidency, Congress, parties, and elections.
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