Legislation in the Senate is filibustered by default every day. A simple change in debate rules could preserve the Senate's deliberative tradition, but more accurately reflect the true purpose and political reality of the filibuster. 41 Senators should vote to extend debate, instead of 60 voting to close it.
Right now, 60 senators must vote for cloture to end debate and bring a bill to the floor for a vote, which requires assembling a "filibuster proof majority" before a filibustering coalition even materializes. Requiring 60 Senators to vote to close debate functions less to protect the minority party's right to express its views than to let watch from the sidelines while the majority hamstrings itself attempting to muster 60 votes. The filibuster exists to let the minority block legislation, but rule actually works to hamper the majority from passing it.
This simple rule change could maintain the minority's ability to block legislation, but would make them accountable for doing so. Instead of requiring 60 votes to close debate, The Senate should require 41 votes to keep it open. The founding fathers deliberately set a high bar for passing legislation in The Senate, and the rule change would not alter that calculus, but the current Senate's constant threat of filibuster requires a procedural tweak to ensure that the rules and traditions of the Senate are not used to hold legislation hostage without anyone lifting a finger. The same 41 Senators who can now prevent legislation from coming to a vote would maintain that power under the new rule, but they would actually have to vote to use the Senate's most powerful procedural rule instead of letting the filibuster happen automatically.
The procedure for closing debate could look like this: after a bill has been debated sufficiently, the majority leader could move to close debate, and debate would automatically close, unless 40 senators voted to keep debate open (after the minority has had sufficient time to muster enough votes). If the minority does successfully vote to keep debate open, then a 60-vote supermajority would be required to close debate.
The effect of this modest change would be to make the minority party accountable to Americans for asserting their right to extend debate on legislation. Senator X's constituents would know that she voted to extend debate on the healthcare reform bill, for example, instead of only that she did not vote to end debate on it; if she has a good reason for voting that way, she has the chance to explain it. The vote to extend debate would place the burden of asserting the minority's veto power on the senators that want to protect their constituents' interests. Besides making debates more efficient, this rule change would decouple votes on closing debate from votes on the merits of policy. A filibuster is a potent political tool. Shouldn't senators have to stand up and vote for it?
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