Why filibuster reform is vital: The Founders' intent was for the Senate to be a majority body, not a supermajority

[From Fix The Senate Now: Interview with a senator who likes how it dysfunctions.]

-- by Dave

Quietly behind the scenes in the Senate, Democratic senators are working to prepare a package of filibuster-rules reforms, led in particular by Sen. Jeff Merkley of Oregon and Sen. Tom Udall of New Mexico.

This morning I sat in on a conference call with Merkley and Udall, who explained how they were planning to roll out a framework for other senators to examine soon. (Here's Dave Weigel's report.) Certainly the urgency to do so has only been heightened by events of the past few days, with Republicans using the filibuster to effectively forestall any action by the Senate in the lame-duck session beyond extending the Bush tax cuts -- including approval of the START treaty, DADT repeal and the DREAM Act.

Fundamentally, as these events have demonstrated, Republican abuse of the filibuster has rendered the Senate into a body in which only the supermajority rules. Considering that it was clearly never designed to be anything other than a majority-rule body by the Founding Fathers, it's a pretty classic case of hypocrisy for Tea Partying right-wingers who love to parade their love of the Founders whenever possible.

So I asked them about whether they intended to use the Founders' intent as a kind of marketing point for their plan. Here's what they said:

Udall: That point is very much talked about. And it was not that long ago that there were major pieces of legislation in which the public discussion always was, 'Can we get 51 votes to pass this?'

We had controversial Supreme Court justices -- for example, Clarence Thomas -- who was passed through without a supermajority. There was no cloture process or extended debate requested by those who opposed him.

It was considered a privilege to exercised -- that is, the privilege of delaying the Senate so that you could continue to make your points was considered a precious privilege to be exercised upon very rare occasion. That social contract has been eliminated. And members of the Senate are ready to make their objection to the regular order of 51 on everything, and often many times on a single bill, and that has done what you've just described, which is it has turned the Senate into a supermajority body. And for all those who say, do not disrupt the tradition of the Senate, the response is, the tradition of the Senate has never been for it to be a supermajority body.

Merkley: To give you one little factoid here: When Lyndon Baines Johnson was in the Senate, the time he was the Majority Leader from 1954 to 1961, in that entire six-year period, he only attempted to cut off debate, filing cloture, one time. The last two years, Harry Reid had to do that 84 times.

So we've taken something that was an extraordinary rare expression of opposition -- where you went down to the floor and you did everything you could to persuade the American people and your own constituents as to your point of view -- now we don't do that. Now the only filibuster -- the only filibuster I think I've really seen, a true filibuster in the Senate tradition, in the two years I've been here is what happened with Bernie Sanders in the last couple of days, where he took the floor for approximately eight hours or more to actually talk about the tax package.

Most of the time, we see this in a secret way, when you look at C-SPAN2 and you're looking at the Senate, you see a quorum call, the post-cloture debate time -- that time is not being utilized for debate, and that has rendered the Senate a broken institution.

Merkley also talked about the dysfunction that occurs after a cloture vote -- that is, a vote to end the debate and thus the filibuster -- fails to reach the 60-vote threshold:

Merkley: You can think of a cloture vote that fails as the following: 41 senators have said they want to continue debate. When that happens, under current rules, we do not have ongoing debate. People just leave the floor and we are let with a quorum call. There's nothing to compel senators to actually engage in the debate that they have said they want to have. There are a number of potential rules that could be used that exist currently, but each of them is trumped by some other procedural mechanism. And that's why you don't see continuous debate after a cloture call. ...

The advantage of continuous debate is that it honors the purpose of the cloture vote, which was to have debate. The other advantage is that it says to the American people: 'Here is my position. This is why I'm not ready to have a vote yet. This is what is most important. Here is my case.' In other words, senators stand on the floor, literally stand on the floor and make their case to the American public. And the American public and their colleagues can say, 'You're a hero' or 'You're a bum.' And provide that kind of feedback to all of the senators, who will have to vote on a subsequent cloture vote at some point down the line. And if no one has anything left to say, then the whole purpose of the post-cloture debate is concluded -- that is, if no senator at some point is ready to continue the debate, then we should automatically go to a majority vote.

This would get rid of many of the frivolous objections. And just to give you a sense of this -- we just had a food safety bill in which three filibusters were launched, delaying the work of the Senate by three weeks. Each objection to the regular order creates a one-week delay and a 60-vote hurdle. And yet that was on a bill that had substantial bipartisan support, it was not, if you will, one of the bills that has grave national consequences one direction or the other. So if, on a simple, ordinary bill, you can have three cloture motions, you can imagine the type of delay that has resulted in we have no appropriations bills, why we don't have a budget that was debated, and so on and so forth. Why so many House bills come here to die.

Aas Greg Sargent reports today, there is some quiet momentum building in support of these reforms, especially given the galling impotency of the past couple of weeks:

The key thing that's happening is that groups pushing to reform the filibuster are now laying down a clear roadmap to action, and are setting their sights on clearly defined common-sense reforms that seem eminently achievable if enough political will gathers to make them happen. For instance, a range of lefty groups and powerful labor unions like AFL-CIO and SEIU recently spelled out a statement of core principles that would form the bedrock of reform.

The underlying ideas here are twofold: First, there's Senator Tom Udall's insight that each Congress has the power under the Constitution to set its own rules. And second, Senator Jeff Merkley, one of a new crop of younger reform-minded Senators, is getting traction with a proposal of simple, achievable reforms to encourage as much open debate as possible, mainly by forcing Senators to actually filibuster.

Of course, as anyone even casually familiar with the inner workings of the Senate will tell you, the best-intentioned ideas can -- and often do -- disappear without ever getting acted on, for reasons that no one can explain. But it's certainly noteworthy that a real movement seems to be taking shape to prevent that from happening this time around.

Tom Harkin is predicting some serious fireworks on Jan. 5:

Senate Democrats will make a dramatic effort to reform the rules of the chamber when the next Congress begins, one of the body's primary filibuster-reform advocates said Wednesday morning.

Sen. Tom Harkin (D-Iowa), who has championed a weakening of the procedural mechanism that allows the minority party to hold up legislation, predicted "fireworks" on Jan. 5, 2011 -- the day on which the Senate can, he argued, revamp its rules by a simple majority vote.

"There could be some fireworks. There could be some fireworks on January fifth," Harkin said at a pro-reform event sponsored by several like-minded organizations. "I'm going to be there. I'm armed. I'm armed with a lot of history, and I know the rules, and I know the procedures too, so we will see what happens on the fifth."

"[Former Sen.] Robert Byrd in 1975, the last time that last time that we changed the rules and [brought the filibuster threshold] from 67 [votes] down to 60, actually stated on the floor that a majority, 51 senators, could change the rules. And that's what we intend to do and that is what we are working on right now. We are coming on the fifth to basically send a motion to the vice president ... that will change the rules and there is a procedure to provide 51 votes to do that. Robert Byrd said that in 1975 and that's what we are going to try to do."

Essentially, that path to reform requires Vice President Joe Biden -- who supports weakening the filibuster -- to rule on the first day of the next session that the Senate has the authority to write its own rules. Republicans, presumably, would immediately move to object, but Democrats could then move to table the objection, setting up a key up-or-down vote. If 50 Democrats voted to table the objection, the Senate would then move to a vote on a new set of rules, which could be approved by a simple majority.

Keep your fingers crossed. And call your senators and buck them up.

[Cross-posted at Crooks and Liars.]