Filibuster reforms set for debate Jan. 25 should appeal to Republicans, expert suggests

When the Senate convenes Tuesday, Jan. 25, it is expected to weigh a resolution to reform the filibuster rule and eliminate secret holds — protocols that many have blamed for encouraging congressional gridlock.

Although the proposal is put forth by members of the Senate’s Democratic majority, it contains a series of relatively modest changes that should hold some appeal to the Senate’s Republican minority, suggests congressional expert Steven S. Smith, PhD, the Kate M. Gregg Professor of Social Sciences in Arts & Sciences at Washington University in St. Louis.

“The proposal is modest by the standards of reformers who have advocated simple majority cloture for decades,” contends Smith, the author of seven books on the U.S. Congress and a nationally recognized expert on the filibuster process. “It also creates an important guarantee of minority leadership amendments in the post-cloture period.

“The minority party leadership must have an inclination to accept this proposal or something like it,” Smith says. “By doing so, they guarantee themselves amendment opportunities without conceding to the majority a meaningful limitation on the minority’s ability to block legislation.

“Moreover, by accepting a reform proposal and agreeing to its consideration by unanimous consent, they avoid a point of order, threatened by Sen. (Tom) Udall and others that would establish a precedent that a simple majority may invoke cloture on a reform resolution.”

Filibuster threats and cloture votes blocked legislation nearly 100 times in the 111th Congress. And, as the public grows more impatient with a Congress that can’t seem to get anything accomplished, the pressure to reform filibuster rules is growing.

Steven S. Smith’s Sept. 22 testimony was broadcast on the Senate committee’s website.

“Wishing for better behavior” on the part of senators and their leaders won’t reverse the consequences of “two decades of intensifying parliamentary warfare,” warned Smith when he testified on the proposed filibuster reforms in two hearings last September before the U.S. Senate Committee on Rules and Administration.

Smith told the committee that the increase in the obstructive use of rules is a long-term condition that “undercuts the role of the senator and harms the Senate as a policy-making institution.”

Smith, a professor of political science in Arts & Sciences and director of the Weidenbaum Center on the Economy, Government, and Public Policy at Washington University, says it’s noteworthy that the reform proposal does not include provisions that reflect proposals advocated by some reformers.

He describes three controversial provisions that have been omitted from this resolution.

  • First, the proposal does not explicitly provide for the consideration of Senate rules, or amendments to Senate rules, at the start of a Congress. Udall insists that a majority’s right to consider the rules is a matter of right under the Constitution. The proposal could implement this idea by providing for a specific mechanism that includes a privileged motion that is in order during the first legislative day of a Congress.
  • Second, the proposal does not address the proposal to change Rule XXII to shift the burden from the majority to the minority. The proposal is to require more than two-fifths of all senators to vote to continue debate to avoid cloture, reversing the current requirement that the majority produce a three-fifths majority of all senators to close debate. Majority senators have expressed frustration that minority senators need not appear on the floor to vote against cloture under the current rule.
  • Third, the proposal does not address Sen. (Jeff) Merkley’s proposal that any reform take effect six years in the future. The “veil of ignorance” concept that it reflects is intended to neutralize the effect of senators’ party status now or in the near future when evaluating a significant reform proposal. Merkley’s endorsement of the four-senator proposal may reflect his view that the proposal is so modest that no concession on the date of implementation is required.

Smith offers a more detailed analysis of five major components of the filibuster reform proposal in a downloadable pdf document titled: Comments on the Harkin-­Klobuchar‐Merkley-­Udall Filibuster Reform Proposal.

Reporters covering the reform proposals and procedures necessary to change the Senate’s rules may also wish to download Smith’s recently published Reporter’s Guide to Filibuster Reform in the U.S. Congress.

Sen. Tom Udall of New Mexico also detailed his support for the proposal in a Jan. 5 news release: Udall, Harkin, Merkley Introduce Rules Reform Package to Restore Accountability to Senate.