The New Yorker makes an interesting point about filibuster reform. Filibusters in the Senate are used to block three things: judicial nominees (like to the Supreme Court), ordinary legislation, and administration appointees (like Cabinet members and heads of agencies).
Using the filibuster to block the nomination of judges (especially Supreme Court justices) make the most sense. After all, they are appointed for life. And the Judiciary is the third branch of our government, so of course the Executive and Legislative branches should both have a significant say in who is appointed to them.
Using the filibuster to block ordinary legislation makes slightly less sense. After all, a future Congress can change any law it doesn’t like. This kind of filibuster was originally designed so that the majority could not trample on the rights of a minority. But the excessive use of filibusters now means that a minority is regularly trampling on the rights of the majority. Even worse, it is being used for craven political purposes — to bring Congress to a standstill so the party in power looks bad, even though it is the party out of power that is blocking everything using the filibuster.
Finally, the filibuster to block administration appointees makes almost no sense at all. After all, these appointments serve only during the current administration and automatically end when the presidency changes hands. Presidents are elected, so they should be able to appoint like minded officials to their administration’s posts. It makes no sense that the Senate can block (sometimes for years) hiring decisions of the president for pretty much no reason at all. There is no basis for this kind of filibuster in the constitution, and its only purpose seems to be to allow a minority to hobble the president’s administration for political reasons.
I think we definitely need filibuster reform. For example, we could keep filibusters of judicial nominees essentially as they currently exist. As for filibusters of legislation, we could require that they be real filibusters — with Senators standing at the podium and speechifying for hours — rather than just allowing the threat of a filibuster to block a law. And finally, I think we should either eliminate the filibuster of executive appointments, or at least severely restrict them. As they currently exist, they just serve to throw a monkey-wrench into our government for no good reason.
Finally, it is interesting to note that back when the Republicans threatened to invoke the nuclear option eight years ago, it was because Democrats were filibustering appointments to the judiciary (when Bush was attempting to stack the appeals courts with blatant partisans), which is the kind of filibuster most supported by the constitution. But when the Democrats just threatened a “nuclear option” this week, it was because the Republicans were filibustering administration appointments, some of whom were blocked for years for no reason other than to obstruct the government.
I read an interesting piece a little while back that explained the reason why the ‘silent filibuster’ has become so common. The way the filibuster works right now, it is more work for the majority to outwait a filibuster than it is for the minority party to put one on. The reason is that the majority party has to keep at least 50 people on hand to be ready to vote once debate ends, while the filibustering party only has to have one person around to stand up and talk. The Senator doing the filibustering doesn’t have to talk forever, just long enough that a few members of the majority give up and go home and there are no longer enough members remaining for a passing vote.
In the past, when the filibuster was used much more rarely, this wasn’t as much of a hurdle for the majority. They would sit it out when they needed to. But when the minority party is willing to filibuster everything that goes through, it reaches a point where it becomes untenable for the majority party to keep enough Senators on hand around the clock to take advantage of every moment the minority stops talking. Because of that, making the filibustering party actually stand and debate becomes something of an empty threat. Reid could make them do that now if he wanted to. In order to make that approach feasible, there would have to be some underlying change in the way the filibuster works. One suggestion that I have heard is changing the cloture vote so that instead of needing 60 votes to end debate the way it works now, there would need at least 40 votes to continue debate. That would put the onus on the minority to keep people around in order to extend it.
For executive appointments, I think there is a simpler solution that wouldn’t require the Senate procedure to change at all. Just consider every appointment to be effectively a recess appointment. (Perhaps something like this will come out of the Supreme Court taking up the case on recess appointments, but I’m not hopeful.) Just say that once a nominee is named, he automatically assumes the job after a reasonable number of days in the absence of a vote. The Senate still has to vote to confirm them, but since that person will begin performing the job whether or not they are confirmed, they gain nothing by delaying the confirmation vote. This is essentially what happened with Cordray anyway. Why not just codify it, so that we can at least say definitively that person is legitimately doing their job while they wait for Senate confirmation? Worst case in this scenario is that somebody appointed near the end of a term may get delayed until the next incoming Senate where the minority party is hoping to pick up enough seats to block the nomination. But that happens now anyways. This way at least the positions will be filled during that time.
The filibuster needs to go away. So does the idea of tacking an amendment on to a bill that has nothing to do with that bill. The rules in Congress are more ridiculous than the NFL.
Propose it. Write it. Vote on it. Period. Is that so hard?