Let's Make a Filibuster Deal

As the Senate's near-miss passage of health-care reform faded in the rearview mirror, the road ahead became visible: Such victories will be rare, at least under the current configuration of the Senate and partisan alignments. The primary obstacle, of course, is that the Senate's right of unlimited debate creates a de facto supermajority requirement of 60 votes -- which is technically achievable, but barely -- to do anything. As our wandering colleague Ezra Klein put it succinctly at the end of last year, "After health care, we need Senate reform."

Like most procedural rules, the Senate's right of unlimited debate, of which the filibuster is an annoying offspring, is not inherently good or bad but has different effects under different political alignments. And by that I don't mean that I like it when Republicans are in power and dislike it when it's used to block my own policy preferences. Rather, in partial defense of the filibuster, there are times when unlimited debate helps make the Senate open to new ideas and the policy entrepreneurship of individual senators. And, although the filibuster has no constitutional origin, it does fit well with the Madisonian idea of restraints on temporary majorities making changes that could shape the country for generations: appointing a Supreme Court justice or opening up federal wilderness lands to development, decisions that cannot be reversed by a future majority.

But under current circumstances, the filibuster does the opposite -- it makes the Senate a closed and rigid place, where a minority can block everything and where the president and the majority not only need 60 votes; they need exactly the same 60 votes every time. One or two senators at the farthest right edge of the Democratic coalition -- or the most malevolent edge -- become effectively co-presidents, with full veto power over any initiative. Other individual senators become irrelevant.

That's a product of three developments: First, the rise of the lazy filibuster, in which senators don't have to do any work other than declare an intent to block legislation, creating in effect a pure supermajority requirement. Second, the emergence of ideologically coherent parties, so that a filibuster routinely becomes an instrument of party discipline and is managed by the minority leader -- in the past, filibusters such as those against civil rights were organized by a cross-partisan conservative coalition, supported by neither party leader, and ultimately were breakable for that reason. And third, a completely intransigent and disciplined minority, on the cusp of 40 votes and willing to use the filibuster as its main means of participating in governance, even when other options are available.

It is not necessary to eliminate the Senate's right of unlimited debate in order to free it from this stifling ritual. Various proposals have been put forward to mend but not end the filibuster, including Sen. Tom Harkin's proposal for a steadily decreasing number of votes required to end debate. Political scientists Jonathan Krasno and Gregory Robinson have put forward a mild set of reforms, such as requiring the members who are conducting the filibuster to show up to vote, rather than the other way around. (One of the great outrages of the health-reform filibusters was that 92-year-old Robert C. Byrd had to show up, in a wheelchair through 20 inches of snow, but opponent James Inhofe could block it without leaving his recliner.) But all these rule changes, sensible as they may be, would be subject to the same obstruction as health reform itself, and even many Democrats -- most of whom have experienced life in the minority -- might resist reducing the power of filibuster. Fixing the filibuster would be no easier than eliminating it entirely.

But instead of looking at filibuster reform in isolation, let's look at it in conjunction with the other process for getting legislation through Congress: the arcane system known as budget reconciliation. Under this process, designed in 1974 to force Congress to occasionally bring spending and tax programs in line with broad budget goals, certain legislation affecting taxes and some government spending is subject to strict time limits and therefore can't be filibustered. When one party controls both houses of Congress and the presidency, reconciliation can be used as a simple instrument of majority control, as it was five times during the George W. Bush years and once in the Clinton administration.

Many progressives are eager to take the Republican playbook and start using budget reconciliation to get things done. Some think it should have been used from the start for health reform, rather than wasting most of the year trying to get Republicans to agree to ideas they had supported in the past but were now determined to oppose when proposed by Democrats. And there's no doubt that given that obstruction, the efficient, majoritarian process of reconciliation will become central to the Obama administration's future legislative agenda, including the needed refinements to health reform.

But while budget reconciliation is sometimes referred to as "the 50-vote Senate," that's a bit of a misnomer -- it is at the other extreme from the filibuster-paralyzed Senate. Budget reconciliation is a rough, nasty process in which a handful of party and committee leaders write a bill that can barely be debated or amended at all. Not only is there a 20-hour time limit on debate, but amendments are so severely constrained in scope that most are rewritten as meaningless "sense of the Senate" resolutions and are voted on in a massive stack with no debate at the end of the 20 hours, a process so familiar that it's earned it's own name: vote-a-rama.

And because budget reconciliation was designed for a completely different purpose it makes an awkward fit for big policy initiatives. It's like entering a house through the pet door instead of the front door -- you might fit, if you twist just the right way, but it will be painful. Provisions that don't directly affect the budget can't be included, so, for example, much of the fine detail of health-insurance regulation in the current bill would likely have been lost if pushed through reconciliation. If Congress chose reconciliation as the means to pass a jobs bill, it could include tax credits for job creation but probably not many of the infrastructure-spending initiatives that would directly create jobs. These limitations may seem absurd, as they did to the Bush administration officials who inserted a cartoon into the 2003 budget depicting Gulliver tied down by the Lilliputians as a symbol of the limits on budget reconciliation. But that's because budget reconciliation was never intended to be a 50-vote Senate. The alternative to negotiating with the minority party is negotiating with these awkward rules.

So what we have in the Senate are two extremes: the rigid, partisan system of near-total stasis created by the filibuster, on the one hand, and the merciless, closed-door, majority-controlled arcane process of budget reconciliation on the other. A solution might be found in reforming both: Loosen the stranglehold of the filibuster along the lines that Krasno and Robinson or Harkin have proposed. And in return, offer the minority party a reform of the power of budget reconciliation that currently cuts them out entirely. Start by permanently limiting reconciliation to measures that actually reduce the deficit (a rule the Democrats adopted in this Congress) and then look at reforms that open up the process to longer debate and a wider range of amendments.

In short, use the budget reconciliation process not as a convenient alternative to the regular order in the Senate but as a bargaining chip to reform it.

This approach would potentially lead not just to a bipartisan compromise on rules, where both sides give up something, but a much healthier and open Senate procedure, in which individual senators once again have a role, everything is subject to full debate and amendment, the minority party has no alternative but to try to play a constructive role in legislation and, above all else, things get done.

This is the rare instance where some sort of external commission made up of former members of Congress and scholars of Congress might serve a useful purpose by putting together a package of reforms. But the key will be not to approach "filibuster reform" in isolation but to combine it with budget reconciliation, and reform both, in the name of procedure as well as results. And if the Republicans aren't even interested in that conversation, then the White House should feel no reluctance to use the budget procedure as ruthlessly as its predecessor did.

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