Fixing the filibuster problem: What Mondale would do

Speaking of the filibuster, Walter Mondale (who has some special expertise on the matter) has a suggestion for breaking the current deadlock that allows the 41-member Republican minority of the U.S. Senate to stymie action by the rest of the legislative branch. The idea somewhat resembles the famed/notorious “nuclear option” that Senate Republicans threatened in 2005 when they were frustrated by Dem filibusters against Bush judicial appointments.

What Mondale recommends (and has discussed with some of his old friends in the Senate) is for Democrats to threaten to use a friendly ruling from the chair to change the filibuster rule by a simple majority vote.

The reason this was nicknamed “the nuclear option” in Dick Cheney days was that it was considered such an aggressive move, such a violation of Senate norms and sensibilities, that it would trigger all-out war and inspire the “losers” to use every procedural means to render the Senate nonfunctioning.

But if you think back to that 2005 chapter of filibuster/nuclear history, you can see the key to Mondale’s suggestion. Neither side caved in from the nuclear threat. Instead a “gang of 14” moderates — seven from each party — worked out a backroom compromise (the Republicans agreed to use their votes to block some of the judicial appointments; the Democrats agreed to use their votes to break the filibuster and allow confirmation of some others). The hard-liners on either side lacked the votes either to sustain a filibuster or to break one.

So here’s what Mondale thinks should happen. Democrats assert the constitutional principle that the Senate, by majority vote, has the power to make its own rules, at least at the beginning of a new session. A friendly presiding officer (in the current situation, presumably Joe Biden) rules in favor, based on the argument that the U.S. Constitution outranks the Senate rulebook. The chair’s ruling can be appealed, but a vote on a motion to table that objection cannot be filibustered and the chair’s ruling can be upheld by a simple majority vote. This would push put the same majority in a position, at the beginning of the next session, to push through a new filibuster rule, or to ban filibusters entirely. (Mondale does not favor the latter, by the way).

Faced with that clear threat, Mondale believes, relative moderates from both parties would quickly work out a backroom compromise that would change, but not abolish, the filibuster rule.

One more thing you should know. The last major change in the filibuster rule occurred in 1975, when the supermajority necessary to invoke cloture was reduced from two-thirds (67 votes) to its current level of three-fifths (60 votes). Mondale, in his own Senate heyday, was one of the key players. And the strategy he’s now suggesting was exactly how they got it done.

Filibusters and civil rights
In those days, filibustering was used largely as a method by which Southern senators blocked the enactment of civil-rights legislation that had majority support. Filibuster “reform,” at the time amounted to getting the cloture number down from 67. But 67 votes was also the number required to end a filibuster on a proposed a rule change. … You get the idea.

(Pause reading here to try to answer a surprisingly difficult trivia question: Who was vice president in 1975? The answer will be revealed shortly, but pat yourself on the back if you already know.)

Walter Mondale in 1975
Minnesota Historical Society
Walter Mondale in 1975

So I should have consulted Mondale in January when I wrote my previous long piece on the filibuster, but I heard he wanted to follow up on the piece so I called. I have actually written before that one of Mondale’s big Senate accomplishments was getting the filibuster rule changed, but I hadn’t realized that it came about because of the threatened nuclear option. But it was (although the term “nuclear option” wasn’t coined back then and there are technical differences between what Mondale accomplished in 1975 and the 2005 incident).

The Senate never starts over
Technically, by tradition, the U.S. House considers that it starts each session with no rules. So the House begins each new session by adopting the rules, and that presents an opportunity to change them. (There is, of course, no filibuster rule in the House.) But the Senate, by tradition, considers itself to be in continuous existence and doesn’t have to recreate itself to start a new session. Therefore, the old rules are in effect and, theoretically, any proposal to change the rules could be blocked by a filibuster.

Mondale and his co-conspirators cast doubt on that tradition in 1975, by invoking the Constitution.

It is really beyond dispute that the Senate is in charge of its own rules. (Art. I, Sec. 5: “Each House may determine the Rules of its Proceedings.”) The Constitution — which does establish supermajorities for a few special kinds of kinds of actions, like ratification of treaties — does not require a supermajority to cut off debate, nor to adopt or change a rule. So, by implication, the Mondale 1975 argument went, a majority of the Senate can set or change the rules, especially at the beginning of a new session.

When the Senate convened for the beginning of the 1975 session, Mondale asked for a vote on a proposal to change the filibuster rule. One of his allies (a Kansas Republican, by the way) asked that the rule change be subject to a simple majority vote. Senate traditionalists (including, by the way, many Democrats) objected that this would violate Senate tradition. Vice President Nelson Rockefeller (a Republican, by the way) disregarded the advice of the parliamentarian and ruled, in effect, that the issue of whether the Senate could change its rule by majority vote was itself subject to a majority vote.

At that point, things got delayed. The traditionalists (led by a Majority Leader Mike Mansfield, a liberal and a Democrat, by the way) wanted to avoid setting the precedent of allowing rule changes by majority vote, so they repaired to the back room and worked out a deal. The vote to invoke cloture would be reduced to three-fifths, but the rule change would be adopted by a two-third vote. In a concession to close the deal, the filibuster reformers agreed that the new rule would still require a two-thirds to end a filibuster on a rule change.

Some historical tidbits
(A couple of points in passing. 1. Congrats if you remembered Rocky was veep. In 1973, the vice presidency fell vacant after the resignation of the disgraced bribe-taker Spiro Agnew. Then-Pres. Nixon nominated Gerald Ford to fill the vacancy. Then Nixon resigned, Ford became pres and nominated Rockefeller as his veep. And by the way, the other leading contender to be Ford’s veep was George H.W. Bush. 2. Note that the votes on these issues were bipartisan and that a Republican veep worked with the Dem majority to change the rule. Are those days gone forever?)

But the main point is that if the presiding officer is on board with the plan, the threat to change the status quo by majority vote was enough to force a face-saving compromise. If you squint at it hard, the last part of the compromise — requiring two-thirds to force a vote on a rule change — may be mostly symbolic. Since the incident had also established that with a friendly ruling from the chair, a majority can change the rule about how to change the rules.

By the way, Mondale thinks the filibuster should be preserved. He’s frustrated with the hyperpartisan way it’s being used this session which, he said, “enables the Republican minority to stop virtually anything they don’t like.” But rather than end the practice of filibusters, he thinks the number of votes needed for cloture needs to be adjusted downward again, maybe to 58 or 56.

He believes the filibuster is an important reason that the U.S. Senate is special, especially compared to the weak upper chambers in other bicameral legislatures around the world.

Who am I to disagree with Walter Mondale, especially on the U.S. Senate? But I do. As I made clear in my previous filibuster piece, I would favor ending the supermajority for cloture entirely. It’s undemocratic, extraconstitutional, the creation of a historical accident. And however much this is claimed, it isn’t about protecting full debate — it’s about allowing a minority to block the majority.

Mondale mentioned that Sen. Tom Harkin, D-Iowa, has had any idea for filibuster reform for several years. The Hill described the idea this way:

“Harkin’s plan would reduce the amount of votes needed to break a filibuster the longer it goes on. Senators would need 60 votes to break the first vote but then the amount of votes needed would drop to 57, then 54 votes and finally 51 votes.”

If you built in enough time between each step, I think it would protect full debate, but eventually restore majority rule. Mondale said he likes the first couple of steps, but would not go all the way to 51 to force a vote. He thinks the supermajority requirement does ensure full debate. If the majority can impose its will, the debate is pointless and everyone will just ignore the discussion until it’s time for the final vote, he said. He gets the last word.

 

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Comments (15)

  1. Submitted by Tim Walker on 02/02/2010 - 10:39 am.

    Sen. Harkin’s suggestion is intriguing, but I’ve got one that I think is better:

    Senate rules now, or maybe it’s just a recent tradition, is that one doesn’t actually have to talk endlessly in order to filibuster, but instead just pop up to the mic and say the magic word – “filibuster” – and walk away.

    But that’s a relatively recent development, as I understand it, and it’s just a gentleman’s and gentlewoman’s agreement – nothing codified or written into the Senate rules.

    So, in the past, one would actually have to talk and talk and talk to prevent a vote from occurring. Because remember, the vote in question during a filibuster is whether to end the debate and take a roll call vote on the legislation at hand. It’s that debate-ending vote that takes the 61-vote supermajority.

    What if VP Biden, presiding over the Senate one day, broke the “understanding” and simply wouldn’t allow a Senator to invoke a filibuster by simply muttering “filibuster” and walking away from the mic?

    What if Biden required – and he might be backed up on this by a ruling from the Senate Parliamentarian – that you must actually be actively talking to filibuster, otherwise the roll call will be taken.

    Wouldn’t this be somewhere between a hand grenade and a nuclear option? It would greatly reduce the use of the filibuster, because nobody in the Senate – Dem or GOPer – would want to actually do this.

    And, presumably, if the GOPers would choose to filibuster health care legislation, they’d have to get up to the mic and point out their reasons for doing so – or read from the dictionary or phone book.. As much as Senators love to flap their lips, I think that would get very old, very fast.

    The point is, with this new precedent I’m envisioning, a filibuster from whatever group is in the minority would be a very difficult thing to sustain, and its use would be dramatically reduced.

    What do folks think of this suggestion? I think it’s bipartisan, even though if it’s applied now it benefits the Dems, but any change in procedures now would do so. But in the future, it would be advantageous for either party with a simple majority in the Senate, Dem or GOP.

  2. Submitted by Peter Swanson on 02/02/2010 - 10:42 am.

    EB,

    I will confess that there may be some nuance if you set his positions side by side (I have neither the time nor the stomach), but do you see any conflict between the former Vice President’s 2005 position on filibusters and his current one?

    http://www.powerlineblog.com/archives/2005/05/010230.php

  3. Submitted by Brian Simon on 02/02/2010 - 11:16 am.

    Like Tim Walker, I think they ought to enforce the practice of filibustering – actively addressing the Senate – rather than the threat of filibustering.

  4. Submitted by Aaron Klemz on 02/02/2010 - 01:33 pm.

    Interestingly, the premise of the 2005 Powerline piece is that Mondale has hit bottom because his 2005 position is inconsistent with his 1975 position, which is now his 2010 position.

    I expect that if I go digging for a few minutes, I will find a number of folks who were in favor of invoking the nuclear option in the context of D filibusters of R judicial nominees lauding the importance of the filibuster in the context of their 59-41 minority status.

    There’s no pretense on either side, so why should we even bother to ask if there’s consistency?

  5. Submitted by Peder DeFor on 02/02/2010 - 02:12 pm.

    There is a simple trick to figuring out if a deal is fair. Turn it around. If you were on the other side of the stick would it still look like a square deal? If both sides agreed to some kind of very public guidelines about when/how/how many for filibuster and then agreed it would start in 2012 I wouldn’t fear the end point.

  6. Submitted by Steve Rose on 02/02/2010 - 02:40 pm.

    Filibusters and civil rights

    “In those days, filibustering was used largely as a method by which Southern senators blocked the enactment of civil-rights legislation that had majority support.”

    One historical tidbit that you failed to mention: Of the 21 Southern senators who voted against the Civil Rights Act of 1964, 20 of them were Democrats. Notable among them was Al Gore Sr.

  7. Submitted by Peter Swanson on 02/02/2010 - 03:37 pm.

    But Aaron, none of those “R” pundits would be cited glowingly by EB as the wise old sage leading us out of the wilderness.

    If I were in the mood for nuance today (still too tired on a Tuesday for nuance), I would say that there is a difference between opposing the filibuster for judicial nominees and opposing the filibuster for legislation.

  8. Submitted by Aaron Klemz on 02/02/2010 - 04:17 pm.

    Yes, the caucus night is no time for nuance!

    🙂

  9. Submitted by John E Iacono on 02/02/2010 - 05:13 pm.

    (#1)Tim Walker:

    I like your offering MUCH better than the other ones offered.

    I see the filibuster as the last ditch ability of a significant minority to block bad legislation being steamrolled by newly elected majorities of either side.

    Without the filibuster, we are reduced to the antics of parliamentary government systems, without the ability to call for new elections to throw the blackguards out — just what the current triumphalist majority would like, I suspect.

  10. Submitted by Eric Black on 02/02/2010 - 05:27 pm.

    Peter Swanson: When I wrote my piece, I was unaware of Mondale’s 2005 op-ed (co-authored with Dave Durenberger) defending the filibuster. Thanks to you and others, I’ve now read it. The main point of that piece (that Mondale believes the filibuster should exist) is consistent with what he told me in our interview. He made one reference to the 60-vote threshold and didn’t say that it should be lowered, so I assume that’s where you see a flip-flop. I don’t doubt that Mondale’s frustration with the filibuster is higher when it’s Republicans filibustering against a Dem majority than vice versa. We can easily find many Democrats and Republicans that “adjusted” their positions between 2005 and now. Personally, I don’t see the principled argument that filibusters are okay for bills but not for confirmation of lifetime appointments to the federal bench.
    Peder, I agree with you that whatever new rule is adopted should not take effect until after the next election, so neither party knows for sure who will be in the majority.
    Tim and Brian: Fine with me if the Dems insist that the Republicans actually hold the floor and talk in order to sustain their filibusters. But it may be a liberal fantasy that the Repubs will find this embarrassing. Their talking points against the health care bill seem to be winning public favor.

  11. Submitted by Peter Swanson on 02/02/2010 - 07:33 pm.

    I think some would argue that it is an enumerated constitutional responsibility of the Senate to give advice and consent on judicial nominees. The same does not hold true for bills.

    The argument that the appointments are lifetime goes to the importance of the vote, but not the fact that the Senate has an obligation to give an up or down vote.

    Moreover, some would say that filibusters of judicial nominees is a recent development, lacking the historical precedent of legislative filibusters.

    You are free to disagree with these justifications, but that does not mean they are “unprincipled.”

  12. Submitted by Eric Paul Jacobsen on 02/02/2010 - 11:28 pm.

    If the filibuster disappeared tomorrow and was never used again, I’d never miss it.

    Sure, the Senate would make more hasty decisions and probably more mistakes, but at least it would get things done. And without the filibuster, it would be able to correct its mistakes faster later.

    Our Legislative branch is already the only branch of government that is checked and balanced against itself, because it is bicameral. Giving 40 Senators veto power over their own chamber is extreme overkill.

    The structural hobbling of our Congress – of which the filibuster is only the frosting on the cake – creates delays in the process of legislation in the United States that are unknown in other democracies. It slows the pace of legislation so much that the Executive and Judicial branches of government have to get creative in order to make antiquated laws work. This results in over-litigation (lawsuits instead of statutes), executive overreach (legislation by means of “signing statements” and expanded veto power), and the politicization of the judiciary.

    Get rid of the filibuster already!

  13. Submitted by John Roach on 02/03/2010 - 07:51 am.

    The filibuster itself is not the problem. The way it is being used is the problem. In the 110th congress, Republicans doubled the previous record for filibusters. When this congress ends they will have shattered even that shameful record again.

    It may be time to put a limit on the number of filibusters allowed in any legislative session: Require responsibility for a filibuster to be assigned to a particular Senator, then limit the number of filibusters allowed to two for each Senator,per session.

    In the case of this congress, it would limit the number of GOP filibusters to 82 instead of the nearly two hundred that they are presently on track to achieve. Filibusters could still be used to block or delay legislation, but a simple majority could eventually pass something if they were persistent enough.

    Conversely, the minority could consistently block extremely objectionable legislation, but at the cost of forgoing their ability to block items less important to them.

    The current GOP use of the filibuster as a tool to produce gridlock on nearly every issue is unprecedented. It should, and in fact must, have consequences other than GOP electoral gains in November, otherwise it will be used constantly by whichever party is in the minority as a campaign tool instead of a parliamentary tool.

  14. Submitted by Paul Brandon on 02/03/2010 - 12:31 pm.

    John R–
    Excellent idea!

  15. Submitted by Tom Souza on 02/05/2010 - 11:39 am.

    Why not just return to some older versions of Rule 22??? 1)When a filibuster is invoked, a senator MUST hold the floor continually!! Yielding the floor brings the issue up for a vote. 2) When a filibuuster is in progress, all other Senate business stops!

    The GOP is using the filibuster to gridlock the government pending the November alections. They may adopt it as their strategy until 2012!!

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