Everything You Need to Know About Filibuster Reform

Two rival proposals aim to end Senate obstructionism this year

filibuster reform
Bill Clark/CQ Roll Call; Tom Williams/CQ Roll Call; Anthony Pidgeon/Redferns
Senators Tom Harkin, Tom Udall and Jeff Merkley
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What does California Supreme Court Justice Goodwin Liu share with 9/11 first responders and America's undocumented youth? The answer: They've all been robbed by the filibuster.

Now, after what has been described as the least productive Congressional session in modern history, lawmakers are reconsidering the Senate's longstanding procedure for obstructing legislation.

Current Senate rules make it easy for one or more lawmakers to indefinitely block any legislation they disagree with, leaving the bill's proponents out of luck unless they can marshal the 60 votes needed to invoke cloture, which breaks a filibuster. In the past six years, Senators have filed a whopping 391 cloture motions in response to actual or anticipated filibusters – more than there were from 1917 to 1988 combined.

This epidemic of obstructionism has rendered our Senate completely inert, contributing to an environment where opinion polls reveal that Congress, as a whole, is less popular than Nickelback and head lice. As Senator Jeff Merkley (D-Oregon) recently said, "The filibuster, once used only on issues of personal principle, is now used regularly as an instrument of partisan politics."

To fix this problem, Senate Majority Leader Harry Reid says he's committed to passing some form of filibuster reform when Congress resumes session later this month, likely on January 22nd. Currently, two proposals are floating around the chamber. One has been introduced by a trio of Democratic senators led by Tom Udall (D-New Mexico); the other is a considerably weaker, bipartisan resolution from Senators John McCain (R-Arizona) and Carl Levin (D-Michigan). Which of these plans, if any at all, our lawmakers choose will determine whether we have any hope of escaping this state of legislative paralysis.

The two plans share some provisions, give or take a slight modification: Both would eliminate motions to proceed, streamline conference committees and expedite the judicial nomination process. But on the most consequential points, they couldn't be more different.

The stronger of the two proposals, put forth by Udall, Merkley and Senator Tom Harkin (D-Iowa), would establish a "talking filibuster" rule – forcing senators to stand up and defend their decision to delay legislation, à la Mr. Smith Goes to Washington. This is how all filibusters were done prior to the early 1970s, when Democratic leaders implemented new procedural rules that allowed senators to block any bill simply by symbolically declaring a so-called "silent filibuster." Udall's plan is a common-sense fix to the overuse of this practice.

Aside from some modest changes also offered by the Udall plan, the McCain-Levin proposal doesn't do much at all to curb obstructionism. The plan eliminates filibusters on motions to proceed, but with an important caveat: In a concession to Republican concerns, the minority party would be guaranteed two amendments on bills brought to vote. Each of these amendments would then require a simple majority vote to pass. The Huffington Post's Ryan Grim points out that this power would give the minority party significant leverage on bill negotiations, and would effectively act as another tool for obstruction. For that reason, Merkley, Udall, Harkin and a coalition of progressive and labor groups have come out against this counterproposal.

So what happens next? The Senate could theoretically pass Udall-Merkley-Harkin with just 51 votes later this month, using a provision that allows the Senate to change its rules with a simple majority on the first legislative day. The plan's sponsors say they have the votes, but opponents say this unprecedented so-called "nuclear option" would be an overreach of majority power.

Though Reid hasn't taken the nuclear option off the table, he is reportedly negotiating with Senate Minority Leader Mitch McConnell over the McCain-Levin proposal. It's unclear whether the bipartisan plan, which would enact a two-year standing order, has the votes needed to pass. But Reid seems set on doing something. "The Senate is simply not working as it should," Reid said in a statement after he called a recess on January 3rd. "That is why, in the last Congress, I made plain that Democrats would do something to fix these issues."