A fully functional Senate

Our view: To end tyranny of the minority, Senate rules for filibuster need to be revised in the next term

November 26, 2010

With a divided Congress headed to Washington for the next two years, its members gravitating away from the middle on both sides of the aisle and Republicans tossing away one of the few tools available to foster compromise, the appropriation earmark, it's time to rethink Senate rules.

New Mexico Sen. Tom Udall, a Democrat, has promised to force a motion on the first day of the 111th Congress on Jan. 5 to have the Senate consider new rules that would ultimately lower the 60-vote margin currently needed to end a filibuster. According to scholars — including at New York University's Brennan Center for Justice — the motion would require only a 51-vote majority to pass.

The Senate will have 47 Republicans and 51 Democrats, plus two independents who caucus with the majority. If the Democrats found it difficult to manage the chamber once it lost a 60-vote working majority, imagine how it will perform with a much closer split than 59-41.

As much as gridlock might have satisfied Republicans in the previous term, their tea party backers aren't expecting them to sit on their hands for the next two years. If the newcomers truly want to remake government, they'll need to be able to get legislation through the Senate, something that can't be done on any issue of substance with fewer than 60 votes.

The super-majority vote required to end a filibuster isn't written into the Constitution. And it wasn't as big an issue years ago, when senators reserved filibusters (or rather, the threat of a filibuster) for gut-check issues. As recently as the 1990s, there were an average of 29 filibusters per two-year term. In the 110th, they hit the 50-filibuster mark by last April.

This isn't part of the government's necessary "checks and balances"; instead, it's a growing dysfunction. Better to have Senate rules that promote debate and deliberation rather than give a minority — sometimes a tiny one — the right to obstruct any procedural motion.

At a minimum, senators should be required to show up in person on the floor and explain their opposition to a motion.

This shouldn't be a partisan issue, although Republicans are arguably more likely to benefit. They'll find allies for conservative legislation among moderate Democrats who will be hard-pressed to find votes for any legislation that might be construed left of center. The GOP also seems better poised to gain control of the Senate in 2012, when twice as many Democratic-held seats as Republican-held ones are up for election.

But whichever party holds a majority, nothing of substance will escape the chamber without the rule change as long as there are 41 votes in opposition. No legislative body can function under these circumstances.

The Senate can't keep antiquated rules merely out of a sense of tradition — or fear that the minority will have no opportunity to speak. As historic as the midterm election and its call for reducing government debt may have been, there won't be much deficit cutting if the chamber can't even pass a budget.

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