A liberal Washington think tank is throwing its weight behind a nascent plan among Democrats to reform the escalating use of the filibuster to block an ever-increasing amount of legislation in the Senate.
Top Senate Democrats last week began to lay groundwork to change the way the filibuster works after Senate Republicans turned what was once a rarely used maneuver into a routine tool to block Democrats at nearly every turn. GOP senators have used a threat of filibuster to obstruct lawmaking, and also hold up President Obama’s nominees both for his administration and the federal bench. It has created a situation where a simple majority no longer rules – but rather a supermajority of 60 senators is required to take most action.
For instance, Senate Democrats this week are preparing to give final approval to comprehensive healthcare reform under a set of rules known as “reconciliation” specifically because it prevents a GOP filibuster. Not surprisingly, Republicans complain loudly about the use of reconciliation in this manner.
“The filibuster has been abused. I believe that the Senate should be different than the House and will continue to be different than the House,” Senate Majority Leader Harry Reid (D-Nev.) is quoted as saying last week. “But we’re going to take a look at the filibuster. Next Congress, we’re going to take a look at it. We are likely to have to make some changes in it, because the Republicans have abused that just like the spitball was abused in baseball and the four-corner offense was abused in basketball.”
The report, From Deliberation to Dysfunction, could prove to be a valuable asset in filibuster reform, as it adds intellectual heft to an exercise that could have been dismissed as a power-grab, or score-settling on the part of Democrats.
“Increasingly, the Senate has been forced to rely on legislative shortcuts that severely undermine the philosophy of full and careful consideration of all matters before the body,” says the report, authored by Scott Lilly, a senior fellow at the Center for American Progress. “Even so, the chamber fails to complete much of the work for which it is responsible and falls so far behind schedule in completing the work it does do as to seriously undermine the capacity of the entire federal government to respond in an effective and efficient way to the problems facing our country.”
Indeed, a former top congressional staffer with 31 years of service for Democrats, Lilly lays out a case of how aggressive use of the filibuster has crippled the federal government.
Congress has not enacted all appropriation bills on time in 15 years. Frequently, federal agencies do not know how much they have to spend in a given fiscal year until nearly half of that year has expired. In most instances this is problem is tied to the Senate schedule, the report says. Further, much of the funds the government does spend lack a needed legal basis, it adds. Lilly’s report cites the Congressional Budget Office as saying that in the current fiscal year about half of the money provided for the nondefense activities of the government ($290 billion out of $584 billion) had to be appropriated without legal authority. That is because a total of 250 laws authorizing various pieces of the federal bureaucracy had expired, and Congress had failed to take the necessary steps through the authorizing process to enact replacement legislation, the report says. Senators, too, have become prolific in their use of the filibuster, or “holds,” to block a variety of Obama administration personnel from taking office, the report finds.
Most of the growth in the business of filibustering is quite recent, Lilly notes. From 1971 through 1993, an average of just 19.1 motions to end filibusters were filed annually. Between 1993 and 2007, that figure rose to 36 motions a year. That has nearly doubled just since 2007, to 68.7.
“To borrow a term from ‘Star Wars,’ filibustering has gone from overdrive to ‘hyperspace,’” Lilly says in his report. “Filibusters are now commonly used to block not only legislation the minority opposes, but to block legislation the minority does not necessarily have strong feelings on but will use to place a stick in the spokes of the legislative wheel anytime an opportunity presents itself.”
The situation would require just “modest changes” to implement reform, Lilly says.
Specifically, he says, to ensure deliberate and timely consideration of all appropriation measures, debate on each measure could be limited to no more than 16 hours—except that each senator who chose to offer an amendment could do so even if the 16-hour time limit had been exceeded. Debate on a single amendment could be limited to one hour, Lilly adds.
“The logjam created by extended debate on appropriation bills in the Senate often makes it nearly impossible for chairmen of authorizing committees to get important legislation on the Senate calendar. Authorizing legislation dealing with philosophical issues that have proven historically to be more difficult to resolve would still be subject to current rules of debate, but authorizing committees would have greater opportunity to take their legislation to the Senate floor by virtue of the restraints placed on the consideration of appropriation bills,” he says in the report. “More frequent authorizations would in turn help reduce the number of contentious issues in appropriation measures.”
Similar steps need to be taken with respect to the confirmation process, Lilly contends.
“There is no question that Congress needs to hold the executive branch more accountable, but this is not the way to do it,” he says. “No senator should be allowed to hold up the confirmation of a nominee for more than a matter of weeks. Committees should be discharged of further consideration of a nominee after a period of two months unless the committee formally votes for further delay based on the fact that it has received insufficient information to reach a conclusion. After 30 days, consideration of confirmation should be in order without unanimous consent, and debate on the confirmation should be limited to a reasonable period—for example, four hours.”
The publisher of the news site On The Hill, Scott Nance has covered Congress and the federal government for more than a decade.