Cloture Reform–One Further Thought
Both parties in the Senate appear to be gearing up for a showdown in January over the rules governing filibusters. Harry Reid is now committed to doing something on this issue, though it is hard to say whether that something will be modest or far-reaching.
Much of the discussion is focused on whether the “two-track” system in the Senate should be abolished. Today, if a cloture petition fails to get 60 votes, the Senate simply moves on to something else. No extended debate is required. Prior to the 1970s, though, the Senate could not move to something else once a filibuster began–with extended debate–unless the pending item was withdrawn from the floor entirely. This made filibusters harder to maintain but more disruptive. Some people want to return to this system. The most powerful advantage of this approach is that it does not require a rule change. The Majority Leader could simple announce the new practice under his power to set the Senate’s schedule.
I am not convinced that returning to the old “talking filibuster” is a good idea. (It was, after all, ended for a reason.) There are, though, two alternatives that may work well. One would involve saying that a “silent” filibuster must become a “talking” one after a certain period of time (say, six months). This would not go as far as my proposal to reduce the filibuster to only a suspensory veto, but it would split the difference between the current practice (all filibusters are silent) and the traditional one (all filibusters are talking). Again, this is within the Majority Leader’s discretion. The other option that I like is changing the rules to say that the minority must produce forty-one senators in a quorum call to reject cloture (in essence, switching the burden from the majority to the minority). Altering the rules with a majority vote, though, creates its own difficulties for comity within the Senate.
My hunch would be that any rule changes will be incremental, but the Majority Leader will use his powers more aggressively to curtail debate.