Update: Senate filibuster reform gaining momentum

Posted by AzblueMeanie:

Sen. Tom Udall (D-NM) today writes about his proposal for reforming the Senate rules, in particular the filibuster rule. Tom Udall – A Senate new year's resolution: Fixing a broken set of rules:

On [January 5, 2011] my colleagues and I will introduce common-sense proposals to fix the source of our dysfunction – our broken Senate rules. Reform will make the Senate a better legislative body by instituting the transparency and accountability the American people deserve.

* * *

Under the Constitution, the Senate and the House each "may determine the rules of its proceedings." On the first day of the new session, the rules can be changed under a simple, rather than two-thirds, majority. It is past time for senators to reflect on our rules, how they incentivize obstructionism; how they inhibit, rather than promote, debate; and how they prevent bipartisan cooperation. We then have an obligation to the American people to implement logical reforms to confront these challenges – reforms along the lines many of my colleagues have submitted over the past year.

Ultimately, such changes will not reward one political party over another. Instead, reform will pull back the curtain on those who obstruct the Senate's business for no reason other than to score political points. Rules reform is about restoring good-faith legislating for the betterment of the country. We need to take the backroom deals out of the legislative process and rein in rampant obstruction from individuals; this means no more secret holds and endless delays by threat of filibuster.

With reform, we will ensure that all senators have a full and fair opportunity to debate legislation, offer amendments and evaluate nominees. We will respect the Senate's unique history of unfettered debate and ensure that the minority's voice is heard. But we also will prevent the chamber's rules from being manipulated to allow a small minority to silently obstruct the will of the majority.

* * *

I hope that this is the year we make the Senate accountable to the American people again. It's no wonder constituents are fed up with the way business is done in Washington. The first, fundamental step toward changing that culture lies in exercising our constitutional authority to reexamine the stagnant rules that have allowed dysfunction to thrive. I urge my colleagues to recognize the obstruction that has prevented us from doing our jobs and join me in reforming Senate rules for the good of our country.

Over the weekend, Vice President Walter Mondale, who led the fight for Senate rules changes in the 1970s when a senator, offered his suggestions. Resolved – Fix the Filibuster:

We all have hopes for the New Year. Here’s one of mine: filibuster reform. It was around this time 36 years ago — during a different recession — that I was part of a bipartisan effort to reform Senate Rule 22, the cloture rule. At the time, 67 votes were needed to cut off debate and thus end a filibuster, and nothing was getting done. After long negotiations, a compromise lowered to 60 the cloture vote requirement on legislation and nominations. We hoped this moderate change would preserve debate and deliberation while avoiding paralysis, and for a while it did.

But it’s now clear that our reform was insufficient for today’s more partisan, increasingly gridlocked Senate. In 2011, senators should pull back the curtain on Senate obstruction and once again amend the filibuster rules.

Reducing the number of votes to end a filibuster, perhaps to 55, is one option. 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.

* * *

People give lots of reasons for not reforming the filibuster. The minority often claims that it needs the filibuster to ensure that its voice is heard, even though the filibuster is now used to prevent debate from ever beginning. What really gets me, though, is when opponents to reform point to the provision left in Rule 22 after 1975 saying that the Senate cannot change any of its rules without a two-thirds supermajority to end debate.

This requirement cannot constrain any future Senate. A long-standing principle of common law holds that one legislature cannot bind its successors. If changing Senate rules really required a two-thirds supermajority, it would effectively prevent a simple majority of any Senate from ever amending its own rules, which would be unconstitutional. Article I, Section 5 of the Constitution states: “Each House may determine the rules of its proceedings.” The document is very explicit about the few instances where a supermajority vote is needed — and changing the Senate’s procedural rules is not among them. In all other instances it must be assumed that the Constitution requires only a majority vote.

In other words, the fact that one Senate, decades ago, passed the two-thirds majority rule does not mean that all future Senates are bound by it. This year’s new Senate could use this “constitutional option” to force a vote on any change to Senate rules, including Rule 22, and change them with a simple majority.

At the very opening of Congress in 1975, my colleagues and I announced our proposal to amend Rule 22, and threatened to force a majority vote to end a filibuster on the change if the minority tried to block it. In the end, we reached the 60-vote compromise, and never had to use the constitutional option after all. A similar strategy would likely work today.

Tom Udall, Democrat of New Mexico, has said that in a few days, at the beginning of the 112th Congress, he will call on the Senate to exercise its constitutional right to change its rules of procedure, including Rule 22, by a simple majority vote. I wholeheartedly support his effort and encourage both Democrats and Republicans to cooperate with him. The filibuster need not be eliminated, but it must no longer be so easy to use.

The New York Times editorialized in an opinion, Reform and the Filibuster:

The new Senate will face one of its most momentous decisions in its opening hours on Wednesday: a vote on whether to change its rules to prohibit the widespread abuse of the filibuster. Americans are fed up with Washington gridlock. The Senate should seize the opportunity.

* * *

By simply raising an anonymous objection, senators can trigger a 60-vote supermajority for virtually every piece of legislation. The time has come to make senators work for their filibusters, and justify them to the public.

Critics will say that it is self-serving for Democrats to propose these reforms now, when they face a larger and more restive Republican minority. The facts of the growing procedural abuse are clearly on their side. In the last two Congressional terms, Republicans have brought 275 filibusters that Democrats have been forced to try to break. That is by far the highest number in Congressional history, and more than twice the amount in the previous two terms.

These filibusters are the reason there was no budget passed this year, and why as many as 125 nominees to executive branch positions and 48 judicial nominations were never brought to a vote. They have produced public policy that we strongly opposed, most recently preserving the tax cuts for the rich, but even bipartisan measures like the food safety bill are routinely filibustered and delayed.

The key is to find a way to ensure that any minority party — and the Democrats could find themselves there again — has leverage in the Senate without grinding every bill to an automatic halt. The most thoughtful proposal to do so was developed by Senator Jeff Merkley of Oregon, along with Tom Udall of New Mexico and a few other freshmen.

* * *

Changing these rules could be done by a simple majority of senators, but only on the first day of the session. Republicans have said that ramming through such a measure would reduce what little comity remains in the chamber.

Nonetheless, the fear of such a vote has led Republican leaders to negotiate privately with Democrats in search of a compromise, possibly on amendments. Any plan that does not require filibustering senators to hold the floor and make their case to the public would fall short. The Senate has been crippled long enough.

One caveat: "opening day" of the Senate is not limited to January 5th. Due to Senate rules if the session is not adjourned that "opening day" simply continues to when the Senate reconvenes, which appears to be the plan. Sen. Jeff Merkley (D-OR) explains it in this segment of the Rachel Maddow Show.

Visit msnbc.com for breaking news, world news, and news about the economy

Arizona's political media which grovels at the feet of Senator Obstruction, Jon Kyl – who has raised abuse of the Senate rules to a destructive artform – have been remarkably silent on this issue. Do they defend Kyl's abuse of process and the broken Senate? Or are they now ready to demand a functional Senate that works for the people? (crickets chirping).

UPDATE: On Tuesday, even the Neoconservative Washington Post editorialized in an opinion in favor of filibuster reform. The filibuster's future. The media villagers and Beltway bloviators are clutching their pearls.