01/02/2013 10:29 am ET Updated Dec 06, 2017

No More Gentlemen's Agreements

No amount of handshakes or pledges is going to curb obstructionism in the Senate.

The weak package of reforms being offered by Sens. John McCain (R-Ariz.) and Carl Levin (D-Mich.) is not acceptable. It would still provide multiple opportunities for obstructionists to block legislation without any debate and does little to solve the judicial and executive branch vacancy crisis. The silent filibuster would live on for two or more years.

If the Senate's history has taught us anything, we can't afford to go down this road again.

In 2005, the so-called Gang of 14 negotiated a handshake deal to avoid the Republicans' deployment of the "nuclear option," which would have changed the Senate rules mid-session. This bipartisan group of senators agreed to prevent filibusters of judicial nominees except under what they termed "extraordinary circumstances."

But when the balance of power shifted in 2008, Republican senators -- including several who were part of the Gang of 14 -- began blocking President Barack Obama's judicial nominees. Now-California Supreme Court Justice Goodwin Liu and former New York Solicitor General Caitlin Halligan were both denied floor votes on their nominations. On average, it has taken 188 days to confirm a judicial nominee during the current Congress, creating 32 "judicial emergencies," as designated by the Office of U.S. Courts. Today there are more vacancies on the federal courts than when Obama first took office.

The Senate tried again to shake on reform at the start of the 112th Congress. Senate Majority Leader Harry Reid (D-Nev.) and Senate Minority Leader Mitch McConnell (R-Ky.) vowed to make the Senate "more deliberative and efficient" through "fewer filibusters and procedural delays and more opportunities for debate and amendments." McConnell agreed to limit filibustering on motions to proceed, while Reid promised to cut back on "filling the amendment tree."

This handshake produced no results, as failed cloture votes hit a new record and on the few items that did proceed to the floor, a new record was reached on amendments blocked by the majority leader filling the tree, according to the Brennan Center for Justice at New York University School of Law. Over the past two years, we saw even more gridlock and even less productivity. The chamber passed a record-low 2.8 percent of bills introduced.

We need to overhaul the rules: Eliminate the ability to filibuster the motion to proceed. Force senators wishing to block legislation or nominations to take the floor and actually debate. Demand that those objectors produce 41 votes to sustain a filibuster. Streamline the confirmation process for all nominees.

The Levin-McCain filibuster proposal is without merit. It is not a bipartisan compromise, but an abdication of leadership at a time when meaningful reform is possible. This proposal bows to the entrenched power of the status quo, which has failed our democracy. Senate gridlock is no longer an option for America. Real change is required to restore our democracy, and we expect the Senate majority leader and a majority of senators to do this through the "constitutional option," which allows the senators to change the rules with a simple majority on the first day of a new session.

Jan. 3 begins the new Congress, and we need real change. We have the most expensive Senate money can buy with contested seats in this past election averaging $50 million each, yet there is little likelihood that the issues that divided the candidates will ever be voted on or even debated. Americans have been impatiently waiting for real discussion and debate on immigration, climate change and the economic stagnation that has destroyed the American dream. We're in desperate trouble. The nation's problems can't afford any more delays.