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Filibuster Reform

- January 13, 2011

Steve Smith sends along these thoughts (pdf) on the Harkin-­Klobuchar-­Merkley-­Udall filibuster reform proposal (press release “here”:http://tomudall.senate.gov/?p=press_release&id=740). I’ll quote from his general observations:

bq. The proposal is modest by the standards of reformers who have advocated simple majority cloture for decades. It also creates an important guarantee of minority leadership amendments in the post-cloture period.

bq. The minority party leadership must have an inclination to accept this proposal or something like it. By doing so, they guarantee themselves amendment opportunities without conceding to the majority a meaningful limitation on the minority’s ability to block legislation. Moreover, by accepting a reform proposal and agreeing to its consideration by unanimous consent, they avoid a point of order, threatened by Senator Udall and others, that would establish a precedent that a simple majority may invoke cloture on a reform resolution.

bq. It is noteworthy that the reform proposal does not include provisions that reflect proposals advocated by some reformers. First, the proposal does not explicitly provide the consideration of Senate rules, or amendments to Senate rules, at the start of a Congress. Udall insists that a majority’s right to consider the rules is a matter of right under the Constitution. The proposal could implement this idea by providing for a specific mechanism that includes a privileged motion that is in order during the first legislative day of a Congress.

bq. Second, the proposal does not address the proposal to change Rule XXII to shift the burden from the majority to the minority. The proposal is to require more than two–?fifths of all senators to vote to continue debate to avoid cloture, reversing the current requirement that the majority produce a three–?fifths majority of all senators to close debate. Majority senators have expressed frustration that minority senators need not appear on the floor to vote against cloture under the current rule.

bq. Third, the proposal does not address Senator Merkley’s proposal that any reform take effect six year in the future. The “veil of ignorance” concept that is reflects is intended to neutralize the effect of senators’ party status now or in the near future when evaluating a significant reform proposal. Merkley’s endorsement of the four–? senator four–?senator proposal may reflect his view that the proposal is so modest that no concession on the date of implementation is required.