Cloture Reform–One Further Thought

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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14 Responses

  1. Joe says:

    “Altering the rules with a majority vote, though, creates its own difficulties for comity within the Senate.”

    Comity is but one value. At some point, the filibuster as practiced today takes it too far.

  2. mls says:

    ” Altering the rules with a majority vote, though, creates its own difficulties for comity within the Senate.”

    I assume you mean by this having the presiding officer rule that the rules of the Senate do not continue from Congress to Congress and therefore a simple majority may move to adopt new rules without reference to the provisions of the old rules. I don’t think that will happen but, if it does, it will not merely create “difficulties for comity” in the Senate. It will basically overthrow the Senate’s legal system.

  3. Joe says:

    “Each House may determine the Rules of its Proceedings” is the “legal system” that is in place now overall.

    The ‘overthrow’ is more in regard to an unwritten Constitution system and need not be applied to the filibuster to occur. Thus, if the reasoning isn’t applied strictly and some other rule, a rule that many would agree is much more minor, is changed by 58 votes, it could “overthrow” the system too. At some point, that sounds a bit extreme to me.

  4. mls says:

    Joe- I don’t think the question is whether the rule change is minor or not. What matters is if there is a formal change to the rules without complying with the procedures set forth in the rules for changing them. If there is merely a change in interpretation of a rule, that’s different. But I think what Professor Magliocca is referring to is a ruling that the Senate is not a continuing body, and that therefore its rules expire at the end of each Congress. That is not minor– it means a fundamental change in how the Senate understands itself as an institution.

  5. Brett Bellmore says:

    “but the Majority Leader will use his powers more aggressively to curtail debate.”

    Since “silent” filibusters don’t actually involve any debate, just moving on to another subject, I’m at a loss as to how debate could more aggressively be curtailed. It’s hard to curtail something past zero.

    Maybe filibuster reform should involve reintroducing debate, instead of curtailing it?

  6. Gerard Magliocca says:

    That’s a fair point. I should have said something like “expedite legislation and nominations.”

  7. Joe says:

    What matters is what actually happens. If things basically stay the same but the continual body rule is not followed with 100% consistency, just 99%, the “fundamental change” is hard to see. The Senate is basically the same.

    I don’t favor form over substance here. The practice with the filibuster and related areas already significantly changed how the Senate has worked. If how it “understands itself as an institution” is the test, the die has been cast.

  8. Ken Rhodes says:

    The die was cast for a century. Then, in our lifetime, it was recast. Another recast, back to the original, would merely return to original principles.

    I favor eliminating the “two-track” system and returning to the old way. If you want to block legislation favored by the majority, then you ought to be required to be very public in your obstructionism. Stand up in front of the Senate and filibuster away. Everybody in the country will know who you are and what you’re doing.

    If your cause is strong enough to warrant that exposure, and the majority recognizes that their cause is not sufficiently strong to overcome you, then they will have to withdraw their proposed legislation to allow the Senate to get on with other business.

    IMO, a major factor in our current legislative gridlock is anonymity. Strip away that shield, and let the legislature work in public, the way it’s supposed to.

  9. Brett Bellmore says:

    Oh, I don’t think the two track system came about because the filibustering minority wanted anonymity. (Though when they do, they’re happy to take advantage of it.) After all, thwarting the majority in the rest of the country can often be quite popular with the majority where you were elected, while the majority is quite capable of trying to pass something their own districts would be mad about if made public by too much debate.

    Rather, the two track system came about because the majority had more than one thing it wanted to accomplish. Many things. So freaking many things that even a modest amount of debate would leave them no time for them all.

    The majority wanted to avoid speaking filibusters because they got in the way of manufacturing new laws faster than they could be read. The point wasn’t anonymity for the members, but avoiding the sort of public spectacle which makes sneaking things into bills difficult.

  10. Ken Rhodes says:

    Brett is sort of (but not exactly) correct in re the origin of the two track system. For more details, the writeup in Wikipedia is pretty good, and reasonably concise:
    http://en.wikipedia.org/wiki/Filibuster_in_the_United_States_Senate

    More to the point, though, is that the origin is not the same as the current use. Nowadays, the system allows a minority (large enough to block cloture) the opportunity to estop legislation without having to take responsibility for the estopel. So the result is not that the Senate sneakily passes legislation, but rather that the Senate manages to pass mostly trivialities, and not very much important legislation.

  11. Joe says:

    “they got in the way of manufacturing new laws faster than they could be read”

    It would be better if we was actually realistic about how things actually worked before and after the rule change as to how laws were “passed” and not pretend to ourselves that all bills were read by each legislator first before either.

    The breadth of legislation and other Senate business, including the # of let’s say judges (or any number of federal personnel) needed for 300M over a fraction of that number factors into the rule change. But, change in that regard isn’t why filibuster use changed in the last decade or so. Partisan moves was much more significant there.

  12. Brett Bellmore says:

    “but rather that the Senate manages to pass mostly trivialities, and not very much important legislation.”

    An interesting thought; Is it really true that nothing that has the support of 61 members of the Senate qualifies as “important”? Only trivialities achieve widespread support?

    Or is it that the filibuster prevents the Senate from ramming through controversial measures which can only barely get a 51% majority. Only barely, because almost as many people think they’re bad ideas, as think they’re good..

    If super-majorities are reasonable to demand for treaties, or constitutional amendments, why not for measures which outrage nearly half the population? Maybe if you can’t get 61 votes in the Senate for some huge measure that will dramatically change some aspect of the way we live, you should refrain from it?

  13. Logan Roise says:

    Your idea of switching the burden to the minority party by requiring “forty-one senators in a quorum call to reject cloture” is intriguing. I had not previously thought of that but I still think we should return to the old system of requiring a “talking” filibuster…even if we adopt that measure as well.

    As Brett and Ken have stated, it was really ended because it was bad, it was ended because it wasn’t politically convenient. It’s like the “filling the tree” parliamentary tactic. Not to mention, at the time it was changed (early 1970s), the amount of filibusters was much lower.

    I also agree with Ken that “anonymity” is a major road block, especially in regard to nominations. If you don’t like the nominee, fine, don’t vote for them and vigorously debate about why they are a poor choice but the ability to just place a “hold” on their nomination without any consequences does not make sense.

  14. Brett Bellmore says:

    I think the hold system is a bad idea, but since the Senate is largely a majoritarian institution, you have to ask how any given rule or practice benefits the majority. You’ll usually find some way that it does. It might just not be a good way.

    In the case of secret holds, the advantage to the majority is that debate is avoided. The majority generally wants to avoid debate, because it IS the majority, and real debate, especially public, has the potential to reduce it to a minority on a given issue. From the majority’s perspective, the ideal situation is to cut directly to a vote, without any discussion.

    In the absence of secret holds, a member who opposes a particular nominee would have to oppose them in debate, publicly airing the reasons for the opposition. Perhaps they would persuade enough members of the majority to prevail. Perhaps they’d persuade enough members of the public to make voting for the nominee politically damaging. It’s all downside for the majority.

    With the secret hold, the effort to change the member’s opinion can proceed in private. Because the member has not publicly articulated opposition, they are free to change their mind without having to explain why. This allows them to change their mind in response to “arguments” which aren’t strictly relevant to the merits of the nominee, such as, “Stop opposing X, and we’ll see to it that your amendment Y will be inserted in the spending bill in committee.”

    In short, if you’re going to buy your opponents off, you need a mechanism whereby they can BE opponents without having to reveal it publicly before you buy them, so that they do not suffer public embarrassment over the change of heart, and public inquiries as to what prompted it.