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Filibuster Reform

by: tmess2

Sun Dec 30, 2012 at 13:55:52 PM EST


On Thursday, the 113th Congress convenes -- likely with a whole stack of issues dropped on its doorstep by the worst Congress in history.  While there will be a lot of real business to attend to, there is a key procedural measure that occupies the first day of any session -- the adoption of the rules governing procedures in each chamber.

Because each member of the House begins a new term at the start of each Congress, the House sees a need to formally adopt the new rules at the start of each Congress.  The Senate, on the other hand, assumes that since the start of the new Congress is the start of the term of only one-third of the membership that the old rules carry over into the new Congress.  However, many legal scholars believe that on the first day of the new session, the Senate could, by majority vote, choose to adopt a new set of rules.  (After that first day, the current rules require a two-thirds vote to close debate on a motion to amend the rules). 

Currently, Senate Rules (particularly Rule 22) as interpreted by the Senate and its parliamentarian allow unlimited debate on almost everything.  (One exception is a "reconciliation" bill implementing a budget resolution adopted by both the House and Senate.)  Debate can only be limited if a cloture motion receives 60 or more votes or there is unanimous consent to end debate.   Under the rules, it is possible to force a cloture vote at multiple stages of a bill (e.g. the motion to bring the bill to the floor for formal consideration, any amendment to the bill, passage of the bill, consideration of a report from a conference committee).

In the old days, cloture only needed to be invoked to defeat an on-going debate (i.e. if people stopped debating a bill, it could proceed to a vote).  Under the modern ipractice of the cloture rule, all that is needed is for a Senator to object to proceeding to a vote.  Not too surprisingly, this relaxed debate requirement has led to a need for more cloture motions with the result that few bills and few presidential appointments make it through the Senate.  (By my count, there were only 52 roll call votes on final passage of legislation in the Senate and 74 votes on contested nominations during this past Congress.)

With this self-inflicted gridlock in the Senate, the issue is whether the Senate will take the opportunity on Thursday to fix some of the problem.  Many of the newer Senators on the Democratic side would like to change the rules, but the question is whether the leadership will go along with any of the ideas.

Ideas that have been expressed in the past include:  1) lowering the number of votes required for cloutre (either reducing the actual number or changing it from members sworn to members voting so that an absent Senator is not equivalent to a no on the motion); 2) only allowing a filibuster on final passage or on a conference report; 3) exempting additional measures from filibusters; and 4) requiring actual debate by those seeking to prevent a vote instead of allowing opponents to merely object to a vote.   

tmess2 :: Filibuster Reform

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