Most Americans believe that the climatic ending to "Mr. Smith Goes to Washington" is how the filibuster actually works. I know I did until 2009. That is when I found out the dirty little Senate secret. The filibuster only requires that it be announced. At that point it is up to the party in the majority to end it. The person, or persons, that call for the filibuster do not even have to stay on the floor of the Senate, or even in the Senate Chamber, to ensure that the filibuster is carried out.
The person who calls for the filibuster can even do it anonymously. This is how most of the nominees have been held up for close to two years now. The only way to beat a filibuster is by getting 60 Senators to vote against it. To top that off a Senator can pretty much filibuster anything that he/she wants to.
The Republican minority in the 110th Congress destroyed a record previously held by the Democratic minority in the 107th Congress. The question is simple, so to is the answer. Why are so many filibusters being used? Because it is so simple to use them. The more complex answers are solely based on opinion. Because the minority is trying to protect America from the tyranny of the majority. Because the minority is upset that they are the minority. So on and so forth.
There have been several people over the last few years that have suggested ways to either reform the filibuster or get rid of it completely. The House killed it's filibuster in the late 1800s. One, though, has caught my eye.
It comes from Democratic Senator Jeff Merkley. You can read his entire proposal here:
It is a pretty easy document to read through but I thought I would hit the high points of his proposal.
#1) Narrow the Scope:
Eliminate the use of the filibuster on motions to proceed. Blocking deliberation has little place in a legislative body. If a Senator believes a bill is so deeply flawed that debate should be suspended, the senator still has the right to move to table the bill.
#2) Further Narrow the Scope:
We should consider further narrowing the scope. For example, it is worth debating banning filibusters on amendments since members would still have the right to filibuster the final vote. It is also worth examining the value of limiting filibusters on appointing conferees.
These two can be taken at the same time since they are both covering the same thing. What Senator Merkley is basically saying is that the filibuster should be limited to the final vote. As it stands now the filibuster can be used at any time. Most filibusters are used to hold up debate right now. There is no harm in allowing the debate and if a Senator still feels that the bill just will not work he/she can filibuster the final vote.
#3) Create an Expedited Path for Nominations:
The Senate is failing in its responsibility to "advise and consent" on nominations, doing extensive damage to the other branches of government. This is an abuse of its responsibility.
We should consider, therefore, an expedited regular order for nominations. The regular order for each nominee might still be subject to a filibuster, but only under the revised filibuster requirements discussed below.
This has been one of the most egregious uses of the filibuster in recent memory. Nominees are being held up, not because Senators object to the nominee per se but because they object to President Obama.
#5) Require filibustering senators to hold the floor:
The public believes that filibustering senators have to hold the floor. Indeed, the public perceives the filibuster as an act of principled public courage and sacrifice. Let's make it so.
Require a specific number of Senators -- I suggest five for the first 24 hours, 10 for the second 24 hours, and 20 thereafter -- to be on the floor to sustain the filibuster. This would be required even during quorum calls. At any point, a member could call for a count of the senators on the floor who stand in opposition to the regular order, and if the count falls below the required level, the regular order prevails and a majority vote is held.
Several folks have asked how this would work in practice. So here is an example.
Upon request by a member, the Senate President would make the following announcement.
"The Sergeant-at-Arms will bar the doors and the Clerk will take count of all who stand in opposition to the regular order."
The clerk would then announce:
"All senators who stand in opposition to the regular order will declare their opposition."
The President would then report one of the following:
"[_#_] senators stand in opposition. This fails to meet the number required to continue the suspension of the regular order. The regular order is restored and a vote on this [bill/amendment] will be held, according to the rules, at [time stated]."
"[_#_] senators stand in opposition. This meets the number required to continue the suspension of the regular order. Debate will continue."
This accomplishes two important objectives. It makes a filibuster visible to all Americans. And it places the responsibility for maintaining the filibuster squarely upon those objecting to the regular order.
This approach creates two specific ways to overcome a filibuster. First, there is still the existing method of following the current rules for deliberation followed by a 60-vote cloture requirement. Second, however, is that a filibuster could collapse at any time if the filibustering senators fail to maintain the required floor presence.
#6) Require continuous debate:
The Senate could also require debate to be continuous. Under this requirement, if a speaker concludes (arguing either side) and there is no senator who wishes to speak, the regular order is immediately restored, debate is concluded, and a simple majority vote is held according to further details established in the rules.
This further expands the visibility of the filibuster. Americans who tune in to observe the filibuster would not see a quorum call, but would see a debate in process.
These two are the most important in this proposal and the two that I believe should be the top priority in the reformation of the filibuster. The Senator (or in this case Senators) must hold the floor and stay there until the filibuster is broken or until they give up. The Senators must also continuously debate or the filibuster is ended.
It is high time that the filibuster return to how it was meant to be used. It was never meant to be used on a majority of bills or to hold up nominees. It was meant to be used to block legislation that a Senator or group of Senators felt was a bad idea. It was meant to be used rarely and infrequently. The current crop of politicians in Washington are using it like a toy and instead of using as a protection against the tyranny of the majority or instead using it to cause a tyranny of the minority.