Monday, January 11, 2010

Correcting my Mistakes

Some lawyer has an op-ed in the NY Times today arguing against filibusters. He makes a couple of silly arguments -- such as that the Supreme Court would declare filibusters unconstitutional, when in fact the Court wouldn't touch the issue with a 10-foot gavel -- but he makes the correct point that filibusters are an undemocratic impediment to lawmaking and have gotten worse in recent years. Of course I've been making the same point for a long time.

But I have to correct one thing I said previously. I suggested that Harry Reid should take his 60-vote supermajority and use it to change the 60-vote filibuster rule. I correctly pointed out that the rule is not in the Constitution, but is just Rule XXII(2) of the Senate rules and could be changed at any time by majority vote -- if debate on the motion to change the rule could be brought to a close, that is.

But here's what I got wrong: I said that the necessary vote to close debate on the rule change would be 60 votes, as with any other cloture motion. I should have read rule XXII more carefully. Normally, the rule requires "three-fifths of the Senators duly chosen and sworn," which in a fully staffed Senate would be 60, to end debate on any motion. But there is a special exception for motions to change the Senate rules. To end debate on those requires "two-thirds of the Senators present and voting." So if everyone shows up to vote, that would require 67 votes, not 60.

So the filibuster rule is extra specially entrenched and will be extremely difficult to change. It seems unlikely that either party would ever agree to give it up while they are in the minority.

The only plausible proposal I have seen recently is that the Senate might agree now to end the filibuster at some distant time -- say 8 or 10 years down the road -- so that no one could tell, during the debate on the proposal, which side would benefit from it. That way, we could all focus on the fact that allowing the filibuster is bad public policy, without worrying so much about who benefits from this bad policy right now.

But let's get started! If we can only eliminate filibusters a decade from the time we decide to do so, we want that time to be right away.


Anonymous said...

Apropos of nothing, notorious New Hampshire tax evader Ed Brown was sentenced to 37 years on weapons charges yesterday:

The comments are priceless.

Howard Wasserman said...

There is one other way to avoid the 2/3 issue, as argued by the folks at Balkinization and elsewhere: Wait until the start of the 112th Congress in January 2011 and get a ruling that the Senate is not a continuing body, but instead that the 112th Congress is a new body that can enact its own rules. Rules are passed by a simple majority at the start of the new Congress. And those rules could not include a filibuster or include a greatly modified filibuster.