Courtesy Reuters

The Filibuster Is Dead

Long Live the Filibuster

After months spent arguing about the need for filibuster reform, on January 24, Congress agreed to a few slight changes in its rules of debate. Many observers were dismayed at just how modest the tweaks were: Under the new rules, most of which expire when the 113th Congress departs in January 2015, debate on motions to proceed to consider legislation is curtailed (but not eliminated). The minority party is also guaranteed the opportunity to offer two amendments to any pending measure (although the time for debate on such amendments is also strictly limited). And finally, post-cloture debate -- discussions after a motion to call for a vote has already passed -- on most nominations to the executive branch and United States district courts is limited to eight hours.

Along with these temporary reforms, Congress also agreed to a permanent, one-day cap on the amount of post-cloture debate on motions to proceed when a cloture petition is signed by an equal number of majority and minority party members and both Senate leaders. Finally, the Senate agreed to expedite the final stages of its legislative process when it is working with the House of Representatives toward a single version of a pending measure.

These changes stop far short of the sweeping overhaul that Senate Majority Leader Harry Reid (D-Nev.) vowed at the end of last year. In fact, the new rules do not address the behaviors that most Americans think of as filibustering at all. Individual senators still retain nearly all rights to hold the floor for as long as they wish. Further it will still take 60 votes to invoke cloture -- quite a feat -- and a single senator need only threaten to filibuster in order to stall legislation.

In short, most of the recent changes are symbolic. The ones that are temporary can quietly expire two years from now. And even the permanent measures simply codify what was already possible -- moving forward with legislation when there is consensus about doing so.

It is not surprising that this is all the Senate could manage. Any sweeping reform, such as wholly eliminating the filibuster on motions to proceed, would have likely required some heavy-handed maneuvering by Reid and provoked retaliation from the Republican minority. Likewise, reinstating the “talking” filibuster, an approach favored by a handful of rank-and-file Democrats whereby filibusterers would actually have to hold the floor, would have reduced still further the ability of Senate leaders to anticipate or effectively manage time for debate.

Of course, the Senate’s modest rules changes might inspire more meaningful attitude changes. Indeed, although not required by the new limitations, Reid has indicated that after a “reasonable” amount of time passes, he will insist that filibusterers come to the floor and hold it. More likely, however, is that senators will quickly figure out how to use the new rules or subsequent changes in practice to their own advantage -- just as they always have.

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