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Filibuster Reform: Why the McCain-Levin Proposal Won't Fix the Senate

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Members of Congress excel, perhaps above everything else, at pretending to care about an issue. Instead of adopting a new regulation, for example, they'll commission a soon-to-be-forgotten blue-ribbon panel to study its effects. Instead of acting boldly against a special interest, they'll offer up a weakened alternative that changes nothing essential. This is government by public relations, and it often works quite well for defenders of the status quo. A current classic of this genre can be seen in the alternative to Senate rules reform offered by John McCain (R-AZ) and Carl Levin (D-MI) on behalf of a group of eight of their colleagues.

There may be no more critical vote in the Congress this session, certainly not in terms of legacy, than whether or not the Senate will be allowed to function as a legislative body. We have major challenges in this country - unchecked climate change, the continued aging of the population and its impact on health care costs, a runaway financial sector still in position to trigger a crisis, and much more. Having a lawmaking authority actually able to react to these challenges in real time is vital. And the current rules of the Senate make it nearly impossible to move nimbly around these challenges, given the multiple veto points, the ease with which a minority can obstruct progress, and the massive amounts of time and effort expended just to circumnavigate the rules. Particularly given the current partisan divide, the Senate's current rules virtually ensure we will do nothing of consequence on the most important issues of the day.

For several years, reformers like Tom Udall (D-NM) and Jeff Merkley (D-OR) have organized for an overhaul of Senate rules, to put an end to the dysfunctional and paralyzing process that empowers the minority to bring the chamber to a virtual standstill on their own whim. On the other side are the minority Republicans, who appreciate rules they can work to their advantage. McCain and Levin seek to occupy the middle space with a "Goldilocks" compromise that they claim strikes the right balance between making the Senate more efficient, and turning it into a majoritarian institution like the House.

But in reality, a close reading of the McCain-Levin reform proposal shows it would actually do nothing, if not actively harm the ability of the Senate to do its business. The progressive group CREDO asked me to take a look at McCain-Levin, and here's what I found.

The rules reform that doesn't change the rules

Here's a copy of the McCain-Levin proposal so you can follow along. The first thing to notice here is that McCain-Levin isn't a change to the Senate rules at all. This is made clear in the first paragraph:

"We propose the Senate adopt a Standing Order at the beginning of the next Congress, which... would sunset at the end of the 113th Congress."

In other words, while the Udall-Merkley Senate rules reform proposal would permanently change the rules of the Senate, this package would exist as a two-year temporary fix, as an attachment to the current rules. On the first legislative day of the 114th Congress in January 2015, the McCain-Levin changes would disappear. The standing order would be subject to current filibuster rules, needing a 60-vote threshold to adopt. This is seemingly easier than the 67 votes required for a change in Senate rules. However, under the Constitutional option, which follows the Constitution's prescription that each chamber of Congress can adopt their own rules on the first legislative day of a session, only a simple majority would be required for adoption, an interpretation endorsed by three past Vice Presidents. It's not even clear, then, that the standing order route of McCain-Levin would be the rules change option requiring the lowest threshold of support. And again, a "rules change" that sunsets in two years isn't much of a change at all.

"Current Practices": Helpful Hints Instead of Rules Reform

The McCain-Levin proposal has four parts, all of which mirror the superior elements of the Udall-Merkley proposal. The most critical piece of Udall-Merkley is known as the "talking filibuster," which would force any group of Senators filibustering legislation to come to the floor and speak. This is the heart of their reform, to open up a process that now operates with painless filibusters that require no effort on those engaging in the obstruction.

McCain-Levin has no real counterpart to this. But it does offer a note called "Current Practices and Comity" that they helpfully suggest the Majority and Minority Leaders could give to their members. A handout, as it were. McCain-Levin states that leadership should notify its members that Senators wishing to object to unanimous consent, or threatening to filibuster, should do it in person on the Senate floor. It's the proper thing to do, they write. "Members should be required to come to the floor and participate in the legislative process - to voice objections, engage in debate, or offer amendments," they write.

This is the way things work now. Levin admitted this when he released the document, saying that Senators have merely waived the talking requirement as a courtesy. But McCain-Levin offers nothing but a gentle prod to the leadership on this score, rather than a rules change that cannot be waived. Somehow I don't think Mitch McConnell is all that interested in taking McCain and Levin's advice on how to run his caucus.

Moreover, the idea that you could hold any kind of accountability on Senators to not object on behalf of another member is spurious at best. Do we have to read the minds of the Senator who claims not to object for someone else? It gets very metaphysical very quickly.

McCain-Levin also notes that the Senate shouldn't go over the 30 hours of post-cloture debate time (as if that's a major problem), and that the Presiding Officer could always call for a vote if nobody objects. It's very helpful of them to explain the current rules so thoroughly, but the leadership already knows all this, and it hasn't stopped the explosion in minority obstruction and delay we've seen in the last several years.

Even if both leaders decided they did want to push their members to behave the way McCain and Levin describe under the current rules, the majority still cannot force filibustering Senators to be on the floor and speaking other than by keeping 51 Senators (a quorum of the Senate) continuously on or near the floor. Filibustering Senators can use (and indeed, did, for the many decades when it was more common to talk as part of a filibuster) quorum calls and a number of dilatory motions or forced roll-call votes to avoid speaking. This made the process more painful for the majority than filibustering Senators, and it generally obstructed the process.

The Senate's rules invest lots of power in individual Senators, and only changes to those rules, not helpful hints, can alter that power imbalance. If the Senate wants to make filibustering more transparent or more onerous on the minority doing the filibustering, only a rule change can do the trick.

The Motion to Proceed: Obstruction By Amendment

McCain-Levin includes what they call "two additional methods for the Majority Leader to proceed" to legislation. Currently, the motion to proceed is eligible for a filibuster. A minority of 41 Senators can force the Senate to extend debate on whether to start a debate on legislation, as ridiculous as that sounds in plain English. Udall-Merkley would eliminate this tautological circumstance, so that proceeding to debate could not be filibustered. McCain and Levin provide two additional options to deal with this.

Method #1 would end the filibuster on the motion to proceed, but only if the majority allows two amendments from each side of the aisle, from the manager of the bill and their counterpart, and from the Majority and Minority Leader. This is simply a recipe for the minority party to fill up legislation with poison pill or messaging amendments, as has happened practically every time the Republican minority has been able to offer amendments in recent history. For example, consider the health care law of 2010. Congressional Democrats eventually decided to pass it using the budget reconciliation process. The upside was that it required only 51 votes to finish the bill; the downside was that it allowed for unlimited amendments in the Senate. Oklahoma Republican Tom Coburn in particular forced a number of unusual amendments onto the floor, including one banning erectile dysfunction medication for registered sex offenders. If this is the kind of crackerjack legislation you want to see the Senate take their time on, the mandatory amendment process is for you.

More ominously, as Ryan Grim points out, while the underlying legislation would require 60 votes for final passage, the mandatory amendments, if germane to the legislation at hand, would take place after the invocation of cloture on the bill, and therefore only require a simple majority vote. And while the majority would know the nature of the amendments beforehand, they couldn't be assured of their inclusion before they get cloture on the bill. "For instance," Grim writes, "consider a hypothetical situation in which Democrats bring a bill to the floor related to funding health care, and Republicans bring up an amendment to defund Planned Parenthood that a handful of conservative Democrats might vote to support. The majority Democrats would have to decide whether to kill the overall bill before the vote actually occurs on the amendment." The result is legislative paralysis, with skillfully chosen controversial amendments used to stop legislation from advancing. It just shifts the obstruction to a different part of the legislative process.

But this gets us to the real point of the McCain-Levin proposal. Mandatory amendments are a lot for a Majority Leader to give up to the minority, especially considering that the minority can still filibuster the underlying bill. If the majority party doesn't want to give the mandatory amendment to the other side, they can opt for Method #2 to limit debate on the motion to proceed. However, Method #2 keeps the motion to proceed subject to filibuster. It merely reduces the time for a cloture motion to "ripen." Under current rules, it takes a little more than a calendar day after the filing of a cloture motion to proceed to a vote, as well as 30 hours of post-cloture debate, unless waived by all Senators. Under Method #2, the cloture motion would take two hours to ripen, and post-cloture debate would get waived if the cloture motion passes with 60 votes. But this requires agreement from the Majority and Minority Leader, as well as the signatures of five members of the majority and minority caucus. That level of support probably means that the motion to proceed has the votes to pass anyway (right now there are 55 members in the majority, so add 5 members of the minority and you're already at 60). And the Majority and Minority Leader already have to agree to waive post-cloture time or move swiftly to a motion to proceed. Method #2 just moves the ability to force post-cloture debate and other lengthy legislative delays from individual Senators into the hands of the Minority Leader, where it pretty much resides now.

If the Majority Leader doesn't want to give the opportunity for amendment mischief to the minority party, and doesn't like having to rely on the Minority Leader to quicken cloture motions or waive post-cloture debate, under McCain-Levin, "the current rule relative to proceeding to a bill would remain an option." In other words, the path of least resistance on the motion to proceed under the McCain-Levin proposal, the one where the Majority Leader can freely make decisions for his majority, would be the CURRENT dysfunctional process. Indeed, the entire proposal means to funnel decisions by the Majority Leader toward the way things already work today.

Conference Committee Motions: Still Subject to Filibuster

In order to set up a conference committee - to reconcile differences between legislation passed separately by the two houses of Congress - the Senate currently needs to pass three motions (to insist on its version of the legislation, request a conference with the House, and appoint conferees), all of which can be filibustered. This is just to get the conference committee rolling, and if the minority wants to be obstinate they can force the Senate to spend 12 days to get through all three steps. Udall-Merkley would eliminate consolidate the three motions into one, and end filibusters against that motion, so that a bill already passed by the Senate (and which has presumably already been subject to filibuster) can get to a conference committee with the House. The underlying legislation can be filibustered when it comes back from conference, after all. There's no need for a filibuster of the procedural steps to enact a conference committee.

McCain-Levin would also consolidate the three motions into one, but that remaining motion could still be filibustered, for no discernible reason. The proposal would limit debate to two hours and waive post-cloture debate, but would keep the 60-vote threshold on this routine procedure. It just allows another unnecessary obstruction, without any impact on legislation or governance. It's obstruction for obstruction's sake.

Nominations: Efficiency for as Few Nominees as Possible

As much as the filibuster is a problem, the time it takes for a cloture motion to come to a vote and the 30 hours of post-cloture debate that subsequently eats up floor time also create dysfunction in the Senate, particularly on the confirmations of Presidential and judicial nominees. If the Majority Leader cannot waste 4 days of floor time on an individual nominee, the confirmation may never get to the floor. Udall-Merkley deals with this by reducing post-cloture debate to two hours on all nominations except for Supreme Court Justices. Post-cloture time on legislation can get taken up with amendments; there's nothing to amend on a nomination, so once cloture has been invoked, you might as well get on to the final vote.

McCain-Levin starts their nomination section by adding 531 Presidential-level nominees to a streamlined process where they go right to the Senate calendar rather than having to go through committee review. But every Chair and Ranking Member would have the opportunity to strike these new nominees from the list. Since committee Chairs and Ranking Members like to have power invested in their committees, I doubt more than a handful of nominees would remain on the streamlined list.

McCain-Levin actually eliminates post-cloture debate on many nominations, a step further than the 2 hours of post-cloture debate in Udall-Merkley. But McCain-Levin also exempts far more nominees from this process. "This change would not apply to Cabinet Officers, Cabinet-level Officers or Article III judges," they write. District court judges would get a limit of 2 hours of post-cloture debate. This means that the streamlined process wouldn't apply to any major Presidential appointee, or any judge above the district court level. Judges for the Circuit Court of Appeals, for example, would still suffer through the arduous confirmation process, with the hazard of eating up several days of floor time. We have a crisis in federal courts; Chief Justice John Roberts' former position on the DC Circuit Court has been vacant since he left in 2005. But McCain-Levin does little to ameliorate this.


McCain-Levin offers almost no substantive change from the current status quo in the Senate. It would actually make the status quo the most attractive option, in the case of the motion to proceed. It would not stop needless obstruction of conference committee motions or Senate confirmations. It would not come close to ending the silent filibuster, where the minority can block legislation without exposing their reasons to public scrutiny. It's a rules reform that people who hate rules reform can believe in.

That it comes from McCain and Levin actually makes a perverse bit of sense. After all, they are the Chair and Ranking Member of the Senate Armed Services Committee. This means that their annual highlight comes when they manage the one bill every year that never gets subject to a filibuster or a crush for floor time: the defense authorization bill. Congress has passed this bill every year since 1961. It usually passes with 90 votes or more. The Senate works pretty well for John McCain, Carl Levin and the military contractor industry. None of them can imagine it doesn't work for the rest of the country.