During the most heated part of the dKos pie fightdebate over the Senate HCR bill, I promised someone that I'd write a diary about "fixing" the filibuster, provided that he or she would agree to not HR my tip jar into oblivion about it. Here's the diary -- but remember, too many more hidden comments and MB will take away your ability to give me gift subscriptions.
Seriously, I don't actually support ending the filibuster -- but I do strongly support weakening it. This diary will be the first of two, in the course of which I wish to cover, first, what the filibuster actually is, and, second, how I think it should be reformed.
This one concentrates on the first of these: it covers what the standing rules are, why they're there, why people talk about them the way they do, and what, exactly, cloture is.
UPDATE: Quick edit to correct some grammar fluffs.
The standing rules are really quite simple: you'll find them here. Seriously, that's all they are, about, oh, fifty pages of text. They control everything which is "in order" on the Senate floor -- who can talk about what, when, why, and in what manner, how votes do or do not happen, and of what color and weight of damask the draperies are. (OK, so I lied about that last one.) The rules are dull, dreary, grey and omnipotent.
When you think about the rules, you need to always remember that they are individually and collectively neither good nor evil. They are intended to be the tool through which the Senate keeps floor debates orderly, fair, and transparent. They have evolved over more than two hundred years of practice; for the most part, they work or can be worked around. Amending them is a major proposition: Senators use them as tools to help negotiate the form and content of legislation, and changing those rules is not a step taken lightly -- every rule is a tool which can be used by anyone against anyone else in an environment full of ambitious, scheming, self-serving people, and changing any one of them can have unintended consequences.
For instance, one important rule is the rule to limit or "close" debate: invoking cloture. We all know it; Holy Joe Lieberman and Ben "Half" Nelson used the threat to vote against closing debate to force changes in the recent HCR bill. Those changes were bad, and greatly damaged the bill, which is why the cloture requirement is a bad thing! Of course, just two days after Lieberman threw his tantrum and Nelson put the bill in a headlock, Senator Bernie Sanders also used the threat to vote against cloture to force other changes which greatly improved the bill. That means the cloture requirement is a really good thing! Oh. Wait.
A rule is a tool, nothing more, and nothing less. Used in skilled hands -- and US Senators are, for the most part, master craftsmen and women -- it's a way to shape legislation though coercion of a body of colleagues; it itself is no more evil than the person who holds it.
In the House of Representatives, each bill is brought to the floor under its own "rule", which precisely defines the amount of time which can be spent debating the bill, who gets to control the talking, and how that authority is to be delegated during the debate. In the Senate? Yeah, no, not so much. All debate in the Senate is controlled by the standing rules, which specify that debate can only be ended after either each Senator has said his or her fill or a particular and special motion, a "move to close debate" passes.
And that motion, a "cloture motion", is hard to pass. In all cases except one, it requires a vote of "three-fifths of the Senators duly chosen and sworn", which is to say, 60 affirmative votes. Such a motion must be presented in writing and is always in order, requiring only the signatures of sixteen Senators to force consideration, and, once adopted, sets in motion a thirty hour clock, at the end of which time the current "motion, measure, other matter pending before the Senate or unfinished business" shall be voted upon.
Now, I know what you're thinking. "So, demi, if the Republicans have been abusing the tradition of extended debate, and there's already a rule in place for limiting that tradition, why can't the Dems just use their sixty vote advantage to fix it?" Well, even assuming that the whole caucus could be kept in line for such a vote, a miracleI believe to be out of the reach of LBJ himself, there's a small problem. Remember that I kept harping on the existence of one exception to the three fifths requirement for invoking cloture? It applies here -- from the official rules:
[T]he Presiding Officer shall, without debate, submit to the Senate by a yea-and-nay vote the question:
"Is it the sense of the Senate that the debate shall be brought to a close?" And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn -- except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting -- then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of.
[bold mine]
That's right -- changing the standing rules requires 67 votes, not 60. And, since the rules governing cloture are themselves among the standing rules, changing them requires 67 votes, not sixty.
So that's why we won't see a fix in the cloture rules in this session; we'd need to convince two thirds of the Senate to vote for it, and the Republicans certainly aren't going to vote for any further erosion of their power.