1115.org

Senate Republicans’ success in shooting down the auto bailout has, predictably, led to renewed grumbling about Republicans’ systematic abuse of the filibuster to kill any and all legislation they don’t like.

At one end of the scale, Democrats are being called upon to drop the gentleman’s agreement whereby Republicans are able to filibuster without actually filibustering (i.e. without having to talk themselves hoarse on the Senate floor a la Mr. Smith Goes To Washington). The idea is that forcing Republicans to actually conduct a talkathon on the Senate floor will bring home to Americans much more sharply (than news items about cloture votes falling short of 60 votes) exactly how obstructionist Republicans are being (and which ones).

At the other end of the scale, there are calls for Democrats, now that they will control 58 or 59 seats in the Senate, to invoke the nuclear option and do away with the filibuster once and for all. The argument here is that Republicans have abused the filibuster to the point that it no longer serves any constructive purpose.

Then there’s the middle way. A minor, and eminently sensible, rule change would have prevented last night’s filibuster from succeeding. By Senate rules, a successful cloture motion (which kills a filibuster attempt, by closing off debate and moving a bill to a vote) requires 60 votes, no matter how many members are present and voting. It doesn’t sound like a very drastic move to amend that to 60% of the members present and voting.

Last night, only 87 votes were cast. The 60% threshold would have required 53 votes to kill the filibuster. If this was the rule in effect last night , Harry Reid would not have had to vote against cloture in order to preserve his ability to bring up the bill again for a vote. And with Harry Reid voting for cloture, there would have been 53 votes for cloture instead of 52.

The current rule requiring 60 votes, no matter how many members are present and voting, not only has the effect of unnecessarily stacking the deck in favor of filibusters, it also has the effect of creating a different percentage threshold each time a cloture vote is held. I’m not sure why this makes any sense. And if the only appeal is to the Senate’s hallowed traditions, maybe this is a tradition that can usefully be modified?