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Posted on Sustainabilitank.info on December 3rd, 2012
by Pincas Jawetz (PJ@SustainabiliTank.com)

In The New York Times – Updated December 3, 2012

A VERY HOT TOPIC – SHOULD THE SENATE CHANGE RULES SO THE MAJORITY CAN DECIDE THE LAW – OR DOES ONE HAVE TO HAVE A SUPER-MAJORITY TO BE ABLE TO BE DEMOCRATICALLY EFFECTIVE -  THE FIRST ORDER OF REAL BUSINESS IN THE DAYS OF OBAMA II.

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Make Sure the Burden Is on the Minority

Barbara Sinclair, political scientist, U.C.L.A.

Whatever changes the majority makes, Republicans will pillory them. So they should make the changes count.

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 www.nytimes.com/roomfordebate/201…

Do Filibusters Stall the Senate or Give It Purpose?

Introduction

André da Loba

Many senators are troubled by Republicans’ increasing use of filibusters to stall legislation and prevent debate. But even some of them are wary of the “nuclear option” to change the rules: It would allow the vice president and a simple majority to revise the rules, a precedent that today’s majority party might regret someday when it became the minority again.

Should the Senate filibuster rules be reformed? Could they change without losing the Senate’s value as a counterweight to the House?

This discussion was suggested by Aaron Belkin, professor of political science at San Francisco State University.


Debaters:

  • Aaron Belkin

    Power to the People, Not the Minority

    Aaron Belkin, political scientist, San Francisco State University

  • When voters elect officials with a clear mandate for change, the filibuster prevents them from accomplishing much.

Senator Harry Reid’s recent pledge to reform the filibuster is welcome, but in an era of extreme polarization, modest procedural change won’t enable the government to fix critical problems like global warming. President Obama should encourage Senator Reid to oversee the elimination of the filibuster now, while neither party controls Congress, so that legislators have time to adjust before the return of one-party rule and the consequent enactment of more aggressive legislation.

When voters elect officials with a clear mandate for change, the filibuster prevents them from accomplishing much.

Members of both parties fear that eliminating the filibuster would jeopardize cherished programs. But President George W. Bush’s failed attempt to privatize Social Security contains an important lesson about policy continuity. He did not fail because Democratic senators threatened a filibuster, but because the public supports Social Security. If activists believe strongly in a program that the other side wants to gut, they should convince the public of its merits and then rely on popular will, not the filibuster, to preserve it.

Far from destabilizing democracy, ending the filibuster would strengthen our political system by reducing cynicism in government. When voters of either party send elected officials to Washington with a clear mandate for change, the filibuster prevents them from accomplishing most of what the voters want, and inaction confirms popular suspicions about government’s inability to improve citizens’ lives. Eliminating the filibuster would reduce cynicism by making government more responsive to voters, especially after landslide elections.

Counterintuitively, killing the filibuster would curtail polarization as well. If politicians ever delivered on extreme pledges that lacked majority support, for example privatizing Social Security, they would be punished harshly at the ballot box. The filibuster allows candidates from both parties to run on extreme positions that they know will never become law; its absence would encourage moderation over time.

As dysfunctional as the filibuster may be, minority factions used to have many more options for obstructing deliberation in the House and the Senate, both of which have curtailed procedures that once impeded majority rule. President Obama should urge Senator Reid to align himself with this proud tradition, and to work with members of both parties who believe that Congress’s proper role is to reflect, not stymie, the will of the people.

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  • Richard A. Arenberg

    The Wrong Way to Make the Right Changes

    Richard A. Arenberg, co-author, “Defending the Filibuster”

    Once the precedent is established that a simple majority can change the rules, the majority will do what majorities do: take control.

The filibuster is fundamental to the protection of the minority’s right to debate and to offer amendments. This has made the Senate a unique body for more than 200 years. That said, the filibuster has been abused in recent years. The solution is to mend it, not to end it.

The Senate majority leader, Harry Reid, is offering mostly reasonable reforms. First, he suggests eliminating the option to filibuster motions to consider. The rights of minority senators would still be preserved, because they could always filibuster the bill itself. Even the threat of this provides them with the leverage they need to offer their amendments.

Once the precedent is established that a simple majority can change the rules, the majority will do what majorities do: take control.

Senator Reid rightly says that the filibuster should also be eliminated for the three motions necessary to take a bill to conference with the House. The last of his three proposals, instituting the “talking filibuster” to require filibustering senators to take to the floor and go on record, is not likely to serve the purpose intended. The majority leader has the power under existing rules to require those who filibuster to speak.

But, the critical question is not if the Senate rules should be reformed, but how. Senator Reid and a group of freshman senators are leading the fight to use the “constitutional option” to make these changes. This is a controversial assertion that Senate rules can be changed by majority vote on the first day of a new session. This will work only if the presiding officer, the vice president, is willing to ignore the Senate’s rules, precedents and the advice of the parliamentarian to declare by fiat that only a majority vote is necessary to end debate on a rules change, not the two-thirds vote required by the Senate rules. The majority, if it has 51 votes, can then ratify this ruling and make it the precedent of the Senate.

The proponents declare over and over that they do not seek to end the filibuster, merely to make these modest changes. The crux of the problem is that once the precedent is established that a simple majority can change the rules, it can be done at any time. It is inevitable that within a short period of time, the majority will do what majorities do: take control.

Eliminating the supermajority requirement would allow the majority to control the Senate the way the House’s majority controls it. The Senate will then soon have something like the House Rules Committee to enforce limited debate and control what amendments may be offered. The Senate majority leader will be as powerful as the speaker, and the heritage and historic purpose of the Senate will be gone.

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  • Barbara Sinclair

    Make Sure the Burden Is on the Minority

    Barbara Sinclair, political scientist, U.C.L.A.

    Whatever changes the majority makes, Republicans will pillory them. So they should make the changes count.

The Senate should significantly reform Rule 22 (the filibuster rule) and should do so at the beginning of the 113th Congress. Extended debate is now so constantly used as a partisan weapon that the Senate cannot function.

Just look at its record in passing — or, more accurately, not passing — appropriations bills. Not only does a majority need to muster 60 votes in order to pass almost anything, even when the majority has the 60 votes, the minority can make the process of imposing cloture and getting to an up-or-down vote extremely time consuming.

Whatever changes the majority makes, Republicans will pillory them. So they should make the changes count.

Current Senate rules are a barrier to passage of major legislation like the Affordable Care Act; it was 25 days on the Senate floor and took five successful cloture votes. But one can argue that such nonincremental legislation deserves this kind of time and scrutiny. What the contemporary use of Senate rules has done to the legislative process on ordinary bills and nominations is more pernicious.

Passing a transportation bill or the F.A.A. reauthorization becomes a heroic marathon. A minority intent on making a majority appear incompetent can slow the process down to a crawl — or a standstill. Democrats and Republicans share guilt in these developments, but Republicans under the leadership of Mitch McConnell have brought the Senate to near gridlock.

The Senate needs to recognize that if Congress cannot act, if it abdicates its role in governing, power will flow to the president. Effective reform, thus, would not just benefit the current majority but our basic system of government.

A Senate in which the filibuster is available but used rarely and only on issues of transcendent importance might be optimal, but no set of rules can produce that. What reforms would actually make a difference?

· Cloture by a simple majority would solve a lot of problems but might create others and, in any case, will not pass.

· Preventing filibusters on motions to proceed and the motions related to going to conference, as Senator Reid has suggested, would be useful if limited steps; the former could speed up the legislative process, and the latter could also make House-Senate conferences a viable option for settling inter-chamber differences again.

· Whether the “talking filibuster” would have much effect depends on just how the new rule is written; most important, will the majority have to keep a quorum on or near the floor to prevent adjournment, as is now the case? If so, it will do absolutely nothing. The important point is not to “make them talk” but to put the burden on the minority rather than the majority, as it now is.

· Some version of a proposal made by Senator Michael Bennet in 2010 might be more effective: require filibusterers be able to muster 41 votes at any time during a filibuster; if they could not, a majority vote would decide the issue.

In any case, the current reformers should realize that, whatever changes they make, Republicans will pillory them. So they should make rule changes that will really make a difference. In addition, they should not count on being able to make further changes during the 113th Congress; politics and concerns about rule stability are likely to make that not feasible.

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  • Gregory Koger

    A Useful Tool Got Way Out of Hand

    Gregory Koger, author, “Filibustering: A Political History of Obstruction in the House and Senate”

    Bad-faith behavior by the minority party justifies changing the rules of the Senate to restore the majority party’s ability to govern.

The current session of Congress has been the worst Congress ever, and has stagnated the country during a period of crisis. The Senate is responsible for a large share of this paralysis, and must change the way it works by fixing the filibuster.

The Senate filibuster as we know it is a recent and extraordinary change in the legislative process. About five decades ago, senators abandoned the classic “attrition” filibusters in which one side would hold the floor of the Senate continuously and the other side would try to wait it out. Instead, senators began responding to filibusters by trying to invoke “cloture” by a supermajority vote — currently three-fifths of the Senate.

Bad-faith behavior by the minority party justifies changing the rules of the Senate to restore the majority party’s ability to govern.

In the short run, this switch made the Senate more efficient by eliminating long floor battles, but senators soon realized that it had become very easy to filibuster: just by threatening to hold the floor, one senator can force the Senate to produce 60 votes to cut off the threat. The effect of this tactical shift has been to add a new veto point in the legislative process: it is as if we added a second president or a third chamber of Congress to the Constitutional system of checks and balances, but we did so by accident.

Filibustering is not necessarily bad. Used properly, filibustering provides a useful check on the majority party by promoting real debate and compromise and limiting the influence of interest groups aligned with the majority party. But over the last six years the Senate Republicans have exploited their power to block every major measure and to slow down the Senate for the stated goal of aiding the electoral fortunes of the Republican Party, even if Americans and the national interest suffer as a result. This bad-faith behavior by the minority party justifies changing the rules of the Senate to restore the majority party’s ability to govern.

Here are a few of the many options for reform:

· Prevent obstruction on motions to begin debate on legislation, nominations for executive branch positions, formation of a conference committee and appropriations bills.

· Increase the costs for filibustering. This includes the Democratic proposal to require obstructionists to speak continuously, or a suggestion to reverse the cloture burden so 41 votes are necessary to keep a debate going and votes can occur on an hour’s notice.

· Establish an expedited process for bills and nominations that face opposition by a few senators, so that proposals with wide support (80 to 90 percent of the Senate) can be approved swiftly. This would reduce the problem of “holds,” which allow a single senator to delay or even kill low-salience measures.

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