One of the biggest battles early next year will be over much-needed filibuster reform in the Senate. Unless we reform the filibuster, the Senate will continue to be a useless, dysfunctional mess that makes a mockery of the democratic process. Before I lay out a proposed strategy, I want to address two concerns I hear from fellow progressives about the filibuster:
1. "Who cares about filibuster reform right now? The far-right controls the House!"
First of all, filibuster reform can help us with a lot of stuff in the near term, like judges (!) and other nominations. These things don't require concurrence from the House. Also, we need to take a long view. Eventually we'll have a Democratic House and Senate again, and we need to remove all impediments to progress.
2. "We can't get rid of the filibuster! We need it for when we're in the minority!"
A couple things here. In the long-run, Democrats generally want to do more things (progressivism!) while Republicans want to do less (small government!). So even if we suffer some setbacks, we'll benefit in the super long-run. Also, if Republicans regain the Senate with a favorable map in 2014 (no guarantee), Obama will still be President. In 2016, Democrats will have an awesome map and would probably regain control. So we're not likely looking at a doomsday scenario in the foreseeable future.
Finally, on the big picture level, we are the party that wants an effective, competent government. The Republicans want to make the government stagnant and ineffective so they can sell their small-government agenda. The filibuster, no matter which party uses it, makes the government stagnant and ineffective.
The two-part strategy for filibuster reform should be as follows:
1. Get 51 Senators to sign on to a very strong proposed reform bill. At least 50 Senators have committed to reform in one way or another. Let's get them on record as supporting something strong and perhaps more importantly, threatening to GOP interests. As a reminder, you only need 50 Senators to enact filibuster reform. The constitution says that the Senate gets to determine its own rules. Basically the way the "nuclear" or "constitutional" option would work is that presumably Harry Reid would ask the chair (presumably Joe Biden if he wants to participate as President of the Senate) what the rules are for filibusters. Biden would claim that the rules are what Reid proposes. Republicans would then have the right and would seek to appeal the ruling of the chair. But, of course, to appeal the ruling of the chair, you need a majority vote, something the Republicans are not anywhere close to having!
Here's what the strong proposal should be:
a. No more motions to proceed. These motions, which can be filibustered waste up to 60 hours and allow Republicans to kill unseemly amounts of time. They basically ran out the clock using this tool during the 111th Congress. A motion to proceed should not be debatable and should be presumed adopted.
b. 41 Senators should be required to vote against cloture. Currently, rules require 60 members to vote FOR cloture, but not 41 to vote AGAINST cloture. This means that Republicans couldn't cop out by being absent or voting "present" so they can say they didn't vote to filibuster.
c. Similar to the proposal from Senators Udall (NM) and Merkley (OR), 10 Senators should be required to sign a filibuster petition, and at least one of them must be on the floor debating at all times during the filibuster. This would stop the current practice of just standing up and saying you'll filibuster, while then going to hang out at the Capital Hill Club or something. We need to make filibusters hard, not easy.
d. At least 10 Senators would also need to sign a public petition to put a hold on a nominee or bill. Gone will be the days in which one Senator holds the entire body hostage to get what he wants (lookin' at you Coburn and DeMint!). This would also put an end to secret holds. (SEE UPDATE)
e. After cloture is invoked, all post-cloture debate time should be yielded back. If 60 Senators have voted to block a filibuster, that means there should be an immediate up-or-down vote. There would still be plenty of time to debate the bill pre-cloture.
f. After two weeks, the cloture threshold moves from 60 to 55, and after one full month, a simple majority vote is required for passage of a bill. This would restore the filibuster to its original function, which was to foster debate. If Republicans really thought a bill was worth debating for that long, then fine. But filibusters can't last forever. Eventually, the Senate should have to have an up or down vote.
2. Once you get Senators to sign on to this proposal, you offer Mitch McConnell a one-time deal. If he agrees to support clauses a-e of this plan, you will abandon the most ambitious clause, clause f. Therefore, either McConnell gives bipartisan approval to significant filibuster reform, or we've gotten rid of the filibuster entirely. It's win-win!
After this election, Democrats have the leverage and the power to enact rules reform. Now is the time to get something done. Otherwise, we'll be stuck with a completely dysfunctional institution for the foreseeable future.
10:20 AM PT: UPDATE: The Daily Kos guru of Congressional procedure, Mr. David Waldman himself, makes a good point about how if you eliminate motions to proceed, that eliminates the problem of holds on nominations. I guess clause "d" would thus be unnecessary.