How to limit filibusters

Requiring fifty rather than sixty votes is one obvious response, but let's say that either isn't possible or is for other reasons undesirable.  That is, you still might want a high threshold for new legislation, yet without so empowering the sixtieth legislator or for that matter the fiftieth legislator.

One (non-practical) option is to randomize the number of votes held by each Senator, with the number being revealed only after the vote is held.  That way Joe Lieberman wouldn't know in advance that he is the decisive Senator.  One problem of this is that to ensure passage of the now-riskier bill you might have to spread around pork more generally.

Another (non-practical) solution is to give more votes to Senators who precommit in advance to supporting (or opposing) whatever comes out of the process.  Of course that can also backfire, by making it harder for the non-Liebermans to threaten defection.

Then there is bribery and log-rolling and yet more pork.

What other options are there for limiting holdouts, either practical or purely theoretical?

Comments

Why would we want to limit filibusters?

"Wherever the real power in a Government lies, there is the danger of oppression. In our Governments the real power lies in the majority of the Community, and the invasion of private rights is chiefly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the constituents."
-- James Madison

I agree with anon. Why would anyone want to limit filibusters? If we required 75 votes rather than 60, then maybe Congress would be paralyzed completely. Given that both Democratic and Republican controlled Congresses have resulted in uncontrolled spending, a little paralysis would be a good thing.

Permit cloture by a vote of 60% of those present and voting, rather than of 60 senators, as is now the case. That doesn't solve the holdout problem, but it puts the filibustering side to considerable inconvenience, since they have to make sure to have the votes on hand at all times, so will reduce filibusters.

Re Scott's point: did filibusters become so powerful that even a threat of a filibuster can derail legislation when Congressmen began fundraising and other activities related to relection 24/7? Maybe campaign finance reform or term limits are the answer(s).

@Scotch:

OK. Color me wrong (or ignorant).
I'm still in favor.

-jimi

You could significantly cut the role of government. For instance, get rid of the 16th amendment. Less money to play with and we will return to having service, not plunder, as the goal of those in Congress.

While yes, it is annoying to be subjected to "the whims of a narrow majority" especially when you're not part of that majority, that doesn't change the fact that there are things that the Senate has to do, and is barely capable of achieving with only simple majority rules. It's not just passing legislation to confront major issues of the day. It's also confirming judges and cabinet and sub-cabinet positions. It's also signing treaties. It's also representing the will of the public. We strive to be a democracy. We've already diluted that by adding a layer to make it a representative democracy. I think that's enough. Making it a representative supermajoritarian democracy might as well not even be a democracy.

Bernard's suggestion seems to me the most practical. Make it much more expensive to conduct a filibuster. Right now it's all but cost-free.

start with 65 votes need to end debate, but reduce that amount by 1 for every day the bill is in debate, down to a minimum of 55. this way you keep a chance to filibuster (which i think is important to some extent) but only the 55th senator has any particular power, but that is undermined by the amount of time and effort needed to get to the point where he or she matters.

Filibusters used to be costly and relatively rare. Thus they signaled that the minority had very strong opinions about proposed legislation. Arguably, the strong disutility of a minority could and should outweigh the majority, unless the majority also had strong feelings.

However, today filibusters are relatively painless and we no longer have a separating equilibrium. Senators invoke the threat of filibusters routinely if they are even slightly displeased, and why not, since its virtually costless to do so. The use of delay tactics has grown: 7% of legislation was held up in the 1960s while a remarkable 70% is held up by the current Republicans in the Senate.

If we want filibusters to be reserved for situations where the minority feels very strongly, then a solution is clear.

Make filibusters more costly, e.g. by actually requiring the those filibustering to show up and speak, etc

Require that a filibuster could only be broken by 60 votes cast by secret ballot.

Require line-item voting. Every independent item in a bill should be subject to a separate vote. Like the line-item veto, but for the legislature.

Make the filibuster like an NFL replay. Give each party three time-outs, and little red flags.

Ban political parties. Everyone has to run as an individual. (I've often wondered if/how this could be done, as they always arise spontaneously)

How about the Senate not write bills at all?

Let's say that the House writes the bills and votes with simple majority passing it to the Senate. Then the senate votes on the bill, needing 60 votes to pass it to the President. If it doesn't have 60, then it goes back to the House for further revision, or it dies.

But this idea that one body write one version of the legislation, while the other body write its own, and then coming together after everything passes, I think is pretty lame. There should be a clear path authorship to the bill, where only one version of the bill goes through both chambers before heading to the president.

they could give the majority / minority leaders five or so 'wild card' votes per year that they could use for occasions like this. they would end up not getting used much but they would reduce the power of the hold out option.

wilhelm: "it is annoying to be subjected to "the whims of a narrow majority" especially when you're not part of that majority"

If the Supreme Court had done its duty and protected minority rights - specifically, if it had disallowed the progressive income tax - then the minority in this nation who pay almost all the taxes would have little need for a supermajority. But now that a simple majority can appropriate whatever funds it desires from the productive minority, majority rule would be more than just "annoying".

wilhelm: "that doesn't change the fact that there are things that the Senate has to do, and is barely capable of achieving with only simple majority rules."

When is the Senate barely capable of achieving things it "has to do"? The Senate has never had a problem marshalling 60 plus votes when the nation needed to be defended.

wilhelm: "We strive to be a democracy"

Since when? Our founding fathers definitely wanted not a democracy by a republic which protected the rights of the minority from the "whims" of the majority:

John Adams: "It is...as necessary to defend an individual against the majority in a democracy as against the king in a monarchy."

Thomas Jefferson: "Though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possess their equal rights, which equal law must protect, and to violate would be oppression."

James Madison: "In Republics, the great danger is, that the majority may not sufficiently respect the rights of the minority"

If the Supreme Court had done its duty and protected minority rights - specifically, if it had disallowed the progressive income tax

I don't see how the SCOTUS could overturn the 16th Amendment.

It's odd that some of you are proposing radical constitutional amendments to solve the problem of filibustering.

After all, constitutional amendments require, among several other things, a 2/3 majority in the Senate, and so would probably be... filibustered.

Of course, the opposition can counter my above suggestion by publicly announcing their numbers. This would work best in the situation we are in now-- where the opposition has precisely enough votes to require all the other Senators to vote for cloture.

Here is my own proposal, that I think has a lot of potential for improved dynamics:

Establish nationally-elected "federalized" Senators-at-large, not tied to any state. Let's say 5 at-large Senators, in addition to 50 state-tied Senators.

Unfortunately this would require a Constitutional Convention.

One of the problems, as I understand it, with making filibusters more costly by forcing actual talking is that you only need one guy from the minority to do the talking and sustain the filibuster, but you have to have all the folks from the majority there to vote at any given moment to close it.

For the libertarian "who wants congress to function" wags, if you want to roll back Social Security or other big government programs, it seems to me that you're going to want to consider, at least, weakening the filibuster.

Another understanding I have is that the rules of the senate are set at the beginning of the year by majority vote, and the filibuster could be done away with at that time if anyone had the cajones.

Methods for making the holdout a limited resource, or adding a slight random component to the outcome of the process, generally fail in the face of the European referendum strategy: present the bill repeatedly until you get the result you want.

Requiring fifty rather than sixty votes is one obvious response,

No, at the very least we should require a majority vote.

The cause of the current problem is the decline of the party finance system.

Every Senator is his own fund raiser, his own campaign. Party label can be a hindrance, and party support (financing) can be unpredictable. And, since we have PACs, it has been much easier to finance without a party.

Consequently, there is no party control to bring along a Senator. Just cookie crumbs.

How bout a freaking constitution that no one spits on each day before they vote on this crap.

@David G

This is the type of comment that scares me. I have a feeling a lot of Americans would think this shallowly. It's the same people who believed Obama would/could just 1) Take out all the troops on day one, 2) close Guantanamo ASAP, 3) Pass true healthcare reforms, 4)Bring in the new age of post-partisanship.

There are reasons things happen (i.e. reach a certain equilibrium) and the solution is almost never to simply say, "Hey, let's just all agree to do it this way instead." Unfortunately I hear a lot of voters say such things, David G just gives us one example.

Sorry if someone stated this but, instead of randomizing the # of votes per legislator:
Why not randomize the # of votes required to break a filibuster?

Should lead to attempts to create broad coalitions before filibustering becomes a possibility, with amount of effort spent broadening about equivalent to the expected utility gained from getting the marginal legislator to be in your bloc.

Realize that most folks prefer hard-and-fast rules to randomized outcomes to limit "gaming" and weird corner cases so this is not *THAT* much more practical, but it'd be an interesting world to live in.

Mark Meyer,

I like your ideas.

Randomize the number of votes needed to be say between 55 and 60, the number revealed only after the vote.

Then each of the 5 votes to get to 60 would be 20% decisive, instead of just the last one being 100% decisive.

Of course you have to prevent the same bill being brought over and over again with 55 votes until the required number is 55.

Read Binder and Smith (1997) on the origins of the filibuster and reform proposals. So much blabber about the filibuster...

Incidental Economist @ 2:07:27 -

Great idea! Know who proposed that once upon a time? Joe Lieberman! Seriously, when he was a 1st term senator he proposed that very thing. Still a great idea. Shame it would have to get 60 votes in the Senate to ever happen.

Term limits and a recall referendum.

Presumably a statesman might sell his vote to benefit his state in the future. Take away some of his personal future and let the people take it away if he does something they see as against their interests.

This quote is sweet:

"You will find a number of states are treated differently than other states," Reid said Dec. 19. "That's what legislation is all about. It's compromise."

http://news.yahoo.com/s/cq/20091221/pl_cq_politics/politics3271696

And people say that majority rule is necessary because getting agreement for things is unrealistic. Ha.

Well, I think part of what the post is about is trying to think about how we could change the way congress functions not to make it easier to pass legislation, but to make it so that when we reach a point like this one of 'high stakes' where something is GOING to happen, there isn't the opportunity for one or two senators to shamelessly game the system.

I think maybe the most achievable thing is just a cap on filibusters.

But my favorite ideas are 1) rank order voting for candidates 2) senators at large and 3) parliamentary style.

@anon @ 2:33:51: Yeah, rah rah federalism. I already said that. I don't know why you think very much federalism is left in our current political system. The federal government controls ever-increasing shares of state budgets, and they (in essence) compel states and municipalities to do as they say through the threat of withholding funding. What federalist principles still exist in the US political system as it is practiced today that you think having nationally elected Senators would erode?

I should say that I would also support stripping away some of the powers that the federal government has created for itself over the last 100 years or so in favor of a return to a more truly federalist system. But if you think that's likely to happen any time soon, well, what is it you said about "practical intelligence"?

We need to limit what they can do, not HOW they can do it. You can't improve the outcome if you can't constrain the outcome.

A friend of mine recently wrote a column outlining a completely practical solution: pass a rule now eliminating the filibuster several election cycles in the future, when neither party knows who will be in power. http://www.tnr.com/article/metro-policy/veil-thine-eyes

I'm personally in favor of more Congressional fistfights, a la South Korea.

At least CPSAN would be more entertaining.

The position as I see it is the Democrats won the election therefore the people decided they should have the opportunity to implement their policies. If the public don't like the results then they can vote for somebody else next time. The Republicans if they want to defeat a piece of Democratic policy should have to persuade democratic senators to oppose it if they can't then no matter how strongly the feel on the issue they should lose. Opposition is frustrating but that is what comes of losing. A procedural system which allows the losers to block the policies on which the winners won the election robs victory of meaning and frustrates the will of the electorate.

"I suspect the filibuster wave is a function of the senators not knowing each other as well as the past."

Lyle, I'd like to think this is true, but I doubt it is. Max Baucus and Chuck Grassley are good friends, have served together in the Senate for nearly 30 years. But that didn't stop Grassley from stringing Baucus along for about four months this past summer during the "Gang of 6" negotiations in the Finance Committee, before sandbagging him in the end. (Grassley also spent most of those four months quite publicly telegraphing his intention to sandbag Baucus, as part of the GOP's delay-and-defeat strategy on health care reform.)

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