I’ve avoided weighing in on the topic of filibusters, trying to clairfy my own thinking on the issue. Now, I personally don’t have any problem with filibusters per se; if recalcitrant legislators can’t filibuster, they’ll find some other way to gum up the process (see, for example, the members of the Texas General Assembly who have apparently fled the state to deny a quorum to the Republican majority). But I do think the cloture mechanism is slightly broken.

At present, Senate rules require a 3/5 supermajority (or 60 votes) to end a filibuster. I think this requirement substantially reduces the burden on the supporters of the filibuster, as they don’t even have to show up at the quorum call for the votes; if nothing else, a filibuster should require some minimal effort among the disaffected minority to support it, but the present rules aren’t structured that way.

What I’d do: tweak the Senate rules slightly, to require 2/5+1 to vote to continue debate upon a call for cloture, except when a unanimous consent agreement is in effect otherwise limiting the debate (this part allows for normal floor debate without gratuitous cloture votes). That would properly place the burden of sustaining the filibuster on its supporters, but not otherwise limit its use (unlike Bill Frist’s fundamentally silly “supermajority countdown” proposal).

Randy Barnett, one of the burgeoning field of Volokh conspirators, links to a Larry Solum post that explains what’s fundamentally wrong with the filibuster as currently constituted:

The contemporary filibuster is a polite affair. Charles Schumer does not talk through the night, bleary eyed and exhausted. Why not? Couldn’t the filibuster be broken if the Republicans forced the Democrats to go 24/7? No. Because the 24/7 option actually gives an advantage to the minority. Why? In order to force a 24/7 filibuster, the majority must maintain a quorum at all times, but the minority need only have one Senator present to maintain the filibuster. So 24/7 both exhausts and distracts the majority, while allowing the minority the opportunity to rest and carry on their ordinary business. [Emphasis added.] No modern filibuster has been broken by the 24/7 option. For more on this, see my post entitled Update on Filibusters.

Putting the onus on the filibustering party to sustain the filibuster would be a reasonable, fair reform to the rule, much more so than other proposed reforms (adjusting the number of senators required or reducing the scope of what floor actions can be filibustered). And Larry is not very optimistic about what happens now:

But is it too late? Have we moved so far down the spiral [of] politicization that it is impossible to turn back? At this stage in the game, it seems unlikely that Democrats would trust a Republican nominee who presented herself as committeed to the rule of law. And given the Republican perception that the Democrats have unfairly escalated the confirmation wars, it seems unlikely that Republicans will forgo the opportunity to attempt to find confirmable candidates for judicial office who are committed to the political agenda of the right. Charles Schumer rang the bell and its peel has been heard far and wide. Both sides now seem committed to a judicial selection process that concieves of the federal judiciary as the third political branch. Not the least dangersous branch, but the most dangerous branch. The branch that carries out a political agenda with the security of life tenure and the power of final decision about Constitutional questions. Can that bell be unrung? I wish that I could say “yes” with confidence, but alas, I cannot.

Is the politicized judiciary anything new? Scholars have debated that question for the past thirty years, with very mixed results. But certainly the willingness of both parties to use the courts as a vehicle for their partisan agendas has increased in the past two decades. And, ultimately, the electorate (or perhaps a few senators who are more concerned about the institution than their own careers, a dying breed by any measure) will have to settle the argument by giving one side the sixty senators it needs to either fix or abolish the filibuster, as the current situation is likely to get far worse before it gets better.

Nate Silver thinks Harry Reid is being an ineffective Senate majority leader because he’s letting the GOP get away with holds without the traditional filibuster. However, as I pointed out here in 2003 (and also here later that year), the traditional filibuster is far more burdensome on the majority when the minority is bigger than a single senator; while you need 60 majority senators to be on-call to break the filibuster, all you need at any given point of time is a single minority senator to hold the floor.

Ultimately the “cot drama” makes for nice TV, but dragging out the cots probably won’t win him any friends among the supermajority of senators he needs to break the minority. These problems have also vexed other majority leaders of both parties—if there’s a common theme to in-partisans’ complaints about their majority leaders, it’s “ineffectuality,” without much recognition that Senate majority leaders are institutionally weak and individual senators like it that way. It probably doesn’t hurt that most senators have served in the House and the last thing they want is to have another Speaker trying to boss them around.

On a related topic, McQ points out that the bailout had enough GOP support in the Senate to pass if Reid had successfully herded his party’s cats. But again being a good cat-herder isn’t really the qualification that fellow senators want when choosing their majority leader, so I’m not sure anyone in Reid’s position would have been able to do a better job.

The Economist gets in on the filibuster debate thusly:

What’s needed is less posturing and more discussion of when, exactly, a supermajority should be required to get something done in Congress. Right now the only constitutionally-required supermajorities are the two-thirds majority needed to remove an impeached official from office and the two-thirds majorities needed in both houses to pass constitutional amendments. Which other issues are important enough to get that treatment? Should a Supreme Court nominee require confirmation by a supermajority? Should either house of Congress do as California does, and require a two-thrids majority to pass a budget?

Approach the question another way: What sort of congressional actions should only require a simple majority vote? As much as Republicans and business interests fear the Employee Free Choice Act, why should Democrats need 60 votes to pass it? If voters were opposed to the concept, they could have avoided giving the Democrats the presidency and a net 14 Senate seats and 55 House seats over the last two elections.

They are sanguine about the prospects of a real debate over the role of the filibuster, though. And, again, I am forced to wonder how Harry Reid is supposed to “bully” Republicans into not exercising the privilege of unlimited debate since he lacks any effective institutional tools to engage in such bullying.

Apropos the recent return of debate over the filibuster, I’ll just point you to the Signifying Nothing archives for my proposed reform thereof:

What I’d do: tweak the Senate rules slightly, to require 2/5+1 to vote to continue debate upon a call for cloture, except when a unanimous consent agreement is in effect otherwise limiting the debate (this part allows for normal floor debate without gratuitous cloture votes). That would properly place the burden of sustaining the filibuster on its supporters, but not otherwise limit its use (unlike Bill Frist’s fundamentally silly “supermajority countdown” proposal).

Incidentally, the nice thing about having an ancient blog is that I’ve probably already discussed to death every topic under the sun. Now back to the dryer.