Monday, February 9

Improve, don't destroy, the fillibuster

The Senate is, fundamentally, an undemocratic institution that was created to protect small states by providing them with more representation than the principle of "one person, one vote" could ever possibly justify. In the context of such an institution, it makes perfect sense for there to be another mechanism to protect minority viewpoints, and the filibuster fits that bill nicely. While I would rather see the Senate turned into a proportional representation institution where all 100 members are elected every four years during mid-term elections, that just isn't going to happen--like ever. So, let's work with what we have.

There are two ways that the filibuster needs to be fixed. First, the relevant Senate rule needs to be changed from "three-fifths of all sitting Senators" to "three-fifths of all Senators voting." The "all sitting Senators" aspect of the rule creates two logical problems with the filibuster:
  1. Under current rules, any Senator who is preventing from voting due to illness is automatically opposed to any laws passing the Senate whatsoever. Not only is this unrepresentative of the views of that Senator, and not only is it unrepresentative of the view of the people who that Senator represents, it is about as obvious a case of unnecessary gridlock that one can find.

  2. Second, under current rules, any Senator who wishes to abstain cannot actually do so. All abstentions are logically the same as "no" votes, since a fixed number of "yes" votes are needed to end a filibuster through cloture. In a democracy, there should always be an option to abstain. The current Senate rules deny all Senators that option on filibusters.
The second way that filibusters need to be fixed is that all Senators voting to continue the filibuster through endless debate should not be let off the hook without engaging in actual public debate. Any Senator who votes in against cloture and in favor of continuing a filibuster should be required to give, at minimum, a two-minute speech in the Senate explaining why s/he wants to continue debate. If s/he fails to make such a statement, then her or his vote against cloture is rendered null and void. A vote against cloture should only be accepted after such a speech is made.

No more theoretical filibusters If you oppose something strong enough to filibuster it, then get up on CSPAN2 and actually continue debate. If your two-minute speech opposing, say, health care for children ends up in a campaign commercial for your next opponent, then so be it. Obviously, such a rule would not apply to instances where there are initially enough votes to end the filibuster.

I think that those two changes would be adequate to fix the filibuster. There are real conflicts to the principle of elected representation caused by the "sitting Senators" rule, and Senators who block a bill by denying cloture should be, you know, actually forced to continue debate.
I endorse this proposal, most especially the first way which is a no-brainer. There is no logical reason for the threshold to stay at 60 when there are nonvoting or abstaining Senators.

There may be some kinks in the second way, and it might require moving the number of Senators required for cloture back up to 2/3rds (66 of 100) as it was in 1975.

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