Via Greg Sargent, here’s a summary of the reforms:

Clear Path to Debate: Eliminate the Filibuster on Motions to Proceed

Makes motions to proceed not subject to a filibuster, but provides for two hours of debate. This proposal has had bipartisan support for decades and is often mentioned as a way to end the abuse of holds.

Eliminates Secret Holds

Prohibits one Senator from objecting on behalf of another, unless he or she discloses the name of the senator with the objection. This is a simple solution to address a longstanding problem.

Right to Amend: Guarantees Consideration of Amendments for both Majority and Minority

Protects the rights of the minority to offer amendments following cloture filing, provided the amendments are germane and have been filed in a timely manner.

This provision addresses comments of Republicans at last year’s Rules Committee hearings. Each time Democrats raised concerns about filibusters on motions to proceed, Republicans responded that it was their only recourse because the Majority Leader fills the amendment tree and prevents them from offering amendments. Our resolution provides a simple solution — it guarantees the minority the right to offer germane amendments.

Talking Filibuster: Ensures Real Debate

Following a failed cloture vote, Senators opposed to proceeding to final passage will be required to continue debate as long as the subject of the cloture vote or an amendment, motion, point of order, or other related matter is the pending business.

Expedite Nominations: Reduce Post-Cloture Time

Provides for two hours of post-cloture debate time for nominees. Post cloture time is meant for debating and voting on amendments — something that is not possible on nominations. Instead, the minority now requires the Senate use this time simply to prevent it from moving on to other business.

Jonathan Bernstein is thoroughly underwhelmed:

The specific details . . . promise no significant change from the newly-instituted 60 vote Senate.

Secret holds? If holds are a problem (and in general I’m only really concerned about them on nominations), then the problem is the hold itself, not secrecy. Making holds public won’t change anything. There’s also a strange, from my point of view, emphasis on forcing “live” filibusters, which (without further rules changes) will also change nothing. Minority party Senators are, in most cases, perfectly happy to be identified with their opposition to what the majority wants. Assuming otherwise, as these reforms seem to do, is a real misunderstanding.

The reform proposal avowedly does not change the 60-vote cloture threshhold. Even under reforms much more aggressive than these, an intense and determined minority would retain the ability to obstruct the majority’s agenda. It is a big disappointment for reformers that the Udall proposal does not include a requirement, such as was included in previously floated proposals, that the minority must continually occupy the floor with some minimum number of Senators (say, twenty) to stave off cloture.

But even some modest reforms might influence behavior on the margins. At least it is possible that Senators in the minority will find it personally inconvenient to bear the opportunity cost of occupying the floor, which might in turn cut down on obstruction of trivial matters. As David Waldman writes:

If the price is high enough, it can discourage the obstructionist strategy of blanket filibusters on nearly all legislation just to waste time by shifting the burden a filibuster places onto the Senators who want to conduct one, rather than putting it on those who’d seek to stop it.

The problem is, the price just isn’t high enough under the Udall resolution. It is not a great burden for the minority if only one Senator at a time must be on the floor to keep the filibuster alive. But the cost for the majority in terms of lost time is much greater. Not to mention the fact that the minority will always win in the end.

As for ending secret holds, it might be the case that making individual Senators own up to their holds would impose some extra cost on them in the form of being increasingly pestered by journalists, constituents, and colleagues over particularly obnoxious and unjustifiable holds. But requiring Senators to go on the record with holds isn’t very likely to curtail their use. After all, it is already the case that someone who is a U.S. Senator must stand up and publicly object in order to place a hold on proceedings. Ultimately, the problem for this kind of limited reform, it seems, is that the obstructionists are not ashamed of their obstruction. They are proud of it. And they probably won’t get any flak from their supporters for it, even if they have to dodge a few more annoying questions than before.

It seems to me that the package has two purposes: (1) to “prove the concept” that reform is possible by establishing a precedent that the majority may change the rules and thereby implicitly threatening the minority that, if they continue with blanket obstructionism, the majority may respond by ending the filibuster altogether; and (2) to test whether changing marginal incentives on individual Senators’ behavior has any effect on the degree of minority obstruction. If it does, then that would point the way to future rule changes that could preserve the filibuster as a last resort for intense and unified minorities, while deprecating it as a tool of ordinary obstruction and delay.

I wouldn’t go so far as to say I think it will work. But I do think it’s reasonable to try.

Time to wrap this thing up. In this final post, I want to mention a couple of options for reforming the filibuster which could be achieved with 60 votes in the Senate. Not much here to discuss, really, but these 60-vote options deserve mention as potential routes for reform. They could well end up serving as the mechanism for a compromise—especially if under pressure of a credible nuclear threat—such as the one reached in 1975 (see previous post), when the cloture requirement was lowered to 3/5 (from 2/3, except for cloture on amendments to the rules, which still requires 2/3).

Standing Orders and Rulemaking Statutes

Two mechanisms which could create exceptions to Rule XXII and effectively modify cloture requirements are worthy of note: rulemaking statutes and standing orders.

A rulemaking statute is a statute which, like any other statute, is passed by both houses, and which establishes special procedures for certain congressional business. Rulemaking statutes are typically used to “fast track” certain priority legislation which does not get sufficiently timely consideration under the “regular order.” The best example is the Congressional Budget Act of 1974, which created the budget reconciliation process and its famous exemption from the Senate’s 60-vote cloture rule.

To tell you about standing orders, here’s the Congressional Research Service:

Standing orders are regulations that have the force and effect of a rule, but are not contained in Standing Rules. Senate standing orders continue in force until they are altered or repealed, and may be adopted by simple resolution or by unanimous consent. Existing Senate standing orders govern a wide range of chamber business from the simple (the annual public reading of George Washington’s farewell address) to the complex (the creation and operation of the Senate Committees on Ethics and Intelligence). Senate standing orders are printed in a specific section of the Senate Manual.

So…standing orders are less formal than rules, but have the same effect as rules. What are the potential advantages of rulemaking statutes or standing orders for reforming cloture? CRS is glad we asked:

A potential advantage of using a rulemaking statute or standing order over some other parliamentary approaches to limiting consideration is that invoking cloture on these measures would require the votes of only three-fifths’ of those chosen and sworn (60 Senators if there are no vacancies), rather than the two-thirds present and voting (67, if all Senators vote) needed to get cloture on amendments to the Senate’s standing rules. The higher threshold for invoking cloture on rules changes is understood to apply only to direct amendments to the Senate’s Standing Rules, not to other measures having the effect of rules. In addition, in contrast to proposals to amend standing rules, consideration of a bill creating an expedited procedure statute or of a simple resolution creating a standing order would not require a day’s written notice.

CRS also notes that this approach would provide more flexibility than the nuclear option, which could only be launched under fairly specific parliamentary conditions. A rulemaking statute or standing order could also be targeted at, say, presidential nominations. The nuclear option, on the other hand, would probably be impossible to contain in such a targeted area—the precedent established for dodging Rule XXII cloture would inevitably be expanded into other contexts. At which point, the republic would be lost and all hell would break loose, as majority rule was visited upon the United States Senate.

Well, that does it for filibuster reformology. I’m planning to post some links to resources, including those I’ve relied on in this series, soon.

We need to tie up some loose nukes from last time before moving on to the 60-vote options for filibuster reform in the final post. Here’s a quick summary of the important steps in the 51-vote scenario, the launch sequence, as it were, for the nuclear option:

1. Majority moves to break with Senate rule or precedent (e.g., by raising a point of order that the supermajority-cloture requirement is unconstitutional, or that further debate on a certain pending measure would be “dilatory”).
2. Chair (VP or president pro tem) breaks with precedent and issues ruling to close debate on the pending measure.
3. Minority moves to appeal the chair’s ruling; the question is presented on appeal to the whole Senate; debate begins on the appeal.
4. Majority moves to table the appeal from the chair (a.k.a., moves the furniture). No debate; straight to up-or-down vote on tabling motion.
5. Majority votes to table the appeal, upholding the ruling of the chair, ending the filibuster.
6. Majority proceeds to up-or-down vote on pending measure, setting new precedent for breaking filibusters with a simple majority of senators.

Last time I mentioned that there could be many variants on this basic design, and that the key to all of them was in step 4, the motion to table the appeal from the chair, since that motion is not debatable and is decided by simple majority. Now I’ll say a little about a few of the variants.

The Constitutional Option

In my estimation, most of the distinctions between 51-vote variants do not make all that much difference. If you understand how moving the furniture (tabling the appeal from the chair) determines the result, you can see that it will work in pretty much any context where the necessary ingredients are operative. It really boils down to the intensity of the majority’s commitment to ending the filibuster era. But that’s strategy talk—you can read about that elsewhere.

So what about those distinctions? The phrase “constitutional option” is sometimes used interchangeably with “nuclear option,” and sometimes distinguished from it. I think the phrase “constitutional option” is best reserved for a scenario in which a majority of senators invokes the Constitution to claim its right to change the rules or depart from an established Senate precedent, or to claim that 60-vote cloture is unconstitutional.

Raising the constitutional question has some (relatively slight) consequences for procedure. According to the Congressional Research Service (pdf), “Under Senate precedents, the presiding officer may not rule on a constitutional point of order and instead must submit the point of order to the full Senate for a vote.” Thus the constitutional question could hop over step #2 in the launch sequence, straight into the filibuster-loving arms of the full Senate, before the furniture is laid out for the pivotal event, the tabling motion. The only thing to table at this stage would be the majority’s own motion. You want to table the other team’s motion, not your own.¹

But even so, it would be relatively simple for the majority to rearrange the furniture in their favor. The Chair would only need to break two rules/precedents instead of one. The Chair could rule that the supermajority-cloture rule did not apply to consideration of constitutional points of order; or that in this narrow context, the Chair was permitted to decide the constitutional question. The minority could appeal either ruling, but the appeal could then be tabled by the majority. At that point, we’d be back to step #1, and the Chair could decide the actual constitutional question, followed by appeal, followed by tabling. Isn’t this fun?

The Opening Day Gambit

The “opening day” 51-vote variant is probably now the most actively discussed scenario for filibuster reform. Maybe that’s because there have been several such attempts in Senate history. Of course, they’ve all failed. Reformers came really close in 1975, tabling a point of order that had been raised against a proposal for majority cloture. But—as part of the deal that lowered the cloture requirement to 3/5—it reversed itself on reconsideration the following week and never voted on the proposal for majority cloture.

There is some dispute about whether this sequence of events somehow established a precedent in favor of majority cloture, even though the tabling vote that implicitly supported the majority cloture position was reversed. So…that’s an implicit precedent, explicitly reversed. Seems pretty weak to me. I suppose it creates room for argument, which creates some political cover for the majority. But ultimately, there is not, and could not be, any precedent in the world sanctified enough to protect the majority from accusations that it is betraying the republic.

Strategic considerations aside, the whole rationale behind the opening day gambit is a bit contrived. Its proponents argue that, on the first legislative day of a new term of Congress, the Standing Rules of the Senate have no effect, because they have not been adopted by the new majority. And so the new majority (or an old majority reconstituted) could adopt new Standing Rules, including reformed cloture rules.

The problem is, it has never been Senate practice to re-adopt its rules with every new term. Rather, the Senate has conducted itself as a continuous body, just as it was designed to do. And, though I don’t think it would help to point this out in any kind of formal setting, the whole reason they’re called “Standing Rules” is exactly this. They don’t expire at the end of the term. See also Rule V (“The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules.”).

In my estimation, there’s nothing constitutionally special about opening day in the Senate. But it’s as good as any other day, and I don’t doubt there are good strategic reasons for reformers to act on it—but that’s a matter for another blog.

1. As usual, there are different ways this could shake out. E.g., the minority might be the one to raise the constitutional point of order. There are several important precedents from Senate history that I’ve decided not to get into. They’re related succinctly in this CRS report (pdf), though, and I’ll discuss their significance another time, if anyone asks about them in comments.

Now we’ll start looking at ways around Rule XXII‘s 67-vote cloture requirement for amendments to the rules. A second option (or family of options) for filibuster reform could be achieved with the support of a simple majority—51 votes if all senators are present—and the Senate’s presiding officer.¹ This option has attained almost mythical status in the political culture. It is radical, obscure, and conspiratorial, and it goes by many names. Most notoriously, due to its power and potential for devastating fallout, it has been called the “nuclear option.”

There are many variants of the 51-vote option. Some of them vary by the grounds on which they are justified (i.e., whether on constitutional or other grounds); some vary by their timing (i.e., opening day or mid-session); and some vary by their scope (whether they affect only judicial nominations or all Senate business). See CRS (pdf) for more background. I’ll have a few things to say about some of these variants, and the distinctions they rest on, in the next post.

So there are many variants and many contexts in which they may develop. But there is something common to them all: a single, distinctive procedural device that shows up in every scenario and that, in every scenario, is the decisive step in breaking with established Senate practice. That device is called “tabling the appeal from the chair,” and once you’ve sufficiently rearranged your mental furniture to grasp its significance, you will understand the nuclear option and all its kin.

When a piece of legislative business is tabled, it is set aside, removed from present consideration—in a word, dead. If an appeal of a ruling by the chair is tabled, then the chair’s ruling stands. 

So, let’s say the presiding officer (the chair) makes a ruling that somehow breaks with Senate rules or precedent—e.g., by declaring the 60-vote cloture requirement unconstitutional. Generally, breaking with precedent is not something the chair is supposed to do, and some senator is sure to appeal the ruling (“appeal from the chair”). To appeal a ruling in the Senate is to ask that the question be put to the whole Senate for a vote. And in the United States Senate, if there’s a vote, there’s nearly always debate; and if there’s debate, there’s more debate. And more debate, and more debate, until cloture. And so it might seem that we are stuck: even if the chair ruled to strike down the 60-vote cloture requirement, you’d still need 60 votes to uphold the ruling, right? Well, no, actually. Not necessarily. Enter the motion to table the appeal from the chair—or, as I call it, moving the furniture. If the majority tables the appeal, the appeal is dead, and the chair’s ruling stands. “But,” you’re probably thinking, “can’t the minority filibuster the tabling motion, too?” Good question. No! It can’t! And this is why the furniture motion is so important: it is (a) not debatable and (b) decided by simple majority.² And so, with a favorable ruling from the presiding officer, a simple majority of senators can have its way, even when breaking with the rules, precedents, and traditions of the Senate.

Let’s walk through it again, with some contextual detail—though, remember, there are many variants that work in different contexts, so the detail here is just illustrative, not limiting.

Imagine that Democratic Majority Leader Harry Reid has brought the Kerry-Lieberman climate bill to the floor, debate has dragged on for a month, and Reid files for cloture (by submitting a petition signed by 16 senators). At the beginning of the second day after Reid files the petition, pursuant to Rule XXII, the Senate votes on the cloture motion. The motion gets just 53 votes, 7 shy of the 60 needed to close debate. Debate resumes, and Vice President Biden takes the chair to preside. Biden recognizes some Democratic senator, John Kerry perhaps, who raises a point of order, asking that further debate on the bill be ruled “dilatory,” and that the bill should proceed to a final vote in spite of the failure to invoke cloture. Biden agrees and rules that the Senate should proceed to a final vote on the bill. Minority Leader Mitch McConnell, shocked that the majority would even consider such skullduggery, objects. McConnell appeals the chair’s ruling to the whole Senate. The question is then put before the Senate, which begins debate on Biden’s ruling. Republicans (rightly) argue that the ruling departs from precedent. And what do Democrats do? Move the furniture. Some Democratic senator, Joe Lieberman perhaps (you never know!), moves to lay the appeal on the table. Without debate, the Senate votes on Lieberman’s motion, and the appeal is tabled by a vote of 53-47. Biden’s ruling stands, and the Senate proceeds without further debate to a vote on the Kerry-Lieberman bill, which passes, saving the planet.

So that’s one variant of the 51-vote option. What’s the key maneuver? Moving the furniture—tabling the appeal from the chair. What’s so special about that? You can’t debate the furniture. So put your chairs on the table and go home. The game’s over.

1. The presiding officer could be the president pro tempore or the president of the Senate, a.k.a. the Vice President of the United States. It is likely that the Vice President would have to be on board for the whole scheme to work.
2. See Rule XXII, paragraph 1 (motion to lay on the table “shall be decided without debate.”).

Before we dig into the mechanics, we need a general introduction to the seamy underworld of Senate procedure. The Congressional Research Service (pdf) will ferry us in:

The Senate is governed by the Constitution, the Standing Rules of the Senate, permanent Standing Orders of the Senate (adopted in prior Congresses), temporary Standing Orders of the Senate (adopted at the beginning of each Congress), and statutes. It is also governed by precedents, which are decisions made by the presiding officer of the Senate, or the body itself, concerning how its rules operate in practice. [...] Precedents have tremendous weight in deciding parliamentary questions in the Senate, and the presiding officer, whether the Vice President or a majority party Senator, is expected to be guided by these precedents when ruling on a pending question.

The Standing Rules of the Senate would seem to be the obvious place to start if a Senator desired to change that chamber’s procedures. If there is no substantial opposition, the Standing Rules of the Senate can be changed by a simple majority vote; there is no supermajority requirement for changing the rules. If, however, there is opposition to the proposed rules change and if opponents seek to prevent a final vote on the proposal by extended debate and amendment, known as a filibuster, a supermajority requirement does exist for invoking cloture, or ending debate, on a rules change. Senate Rule XXII, which sets out the process for invoking cloture, requires that two-thirds of those present and voting (67 if all Senators participate) vote to invoke cloture on a rules change.

Okay, let’s unpack that a little. First, note that the filibuster is a consequence of the fact that, in its default mode, the Senate allows unlimited debate (and amendment) on any measure. If you want to get to a vote, you have to ask for one. If no senator objects, you can have a vote right away. But if even a single senator objects, you get nothing. At that point you can either give up, try again later (with no guarantee of different outcome), or petition for cloture under Rule XXII.¹

“Cloture,” for the uninitiated, means bringing debate to a close. In most circumstances, it is achieved (or “invoked” in the lingo) by an affirmative vote of 3/5 of senators “duly chosen and sworn,” or 60 votes. Invoking cloture on a given measure (a bill, amendment, or whatever) has the effect of breaking a filibuster (on that measure) and allows the Senate to proceed to an “up-or-down” vote, decided by simple majority.

Reforming the filibuster means changing the requirements for cloture; and that means amending, superseding, or sidestepping Rule XXII.

A motion to amend the Senate’s rules can be filibustered like anything else that isn’t specifically exempt from the normal rules (as is the budget reconciliation process). But cloture on a motion to amend the rules requires 2/3 of Senators “present and voting,” or 67 votes.

So, under the normal rules and precedents of the Senate as they are currently understood, it would take 67 votes to change the cloture rule. That’s pathway number one to reform—the most straightforward of the three: the “Rule-22 Option.” Get 67 votes in the U.S. Senate, and you can rewrite the rules.

Obviously that’s a tall order. Next we’ll look at reform options with lower thresholds for votes, but much higher thresholds for intrigue. Head for the shelter, everyone. We’re going nuclear.

1. Note that when I refer to “Rule XXII,” I mean specifically paragraph 2, about cloture.

A lot of good stuff has been written about filibuster reform over this past year, by people who really know what they’re talking about. Notably, political scientists Greg Koger and Jonathan Bernstein each have an excellent series of blog posts on the subject. That’s what you want to read for the history, theory, strategy, and politics of the filibuster and for evaluation of reform proposals. In short, go there for all the important and interesting stuff.

But I’m also semi-fascinated with the dry weeds of parliamentary procedure that constrain the options for reform. So I’ve set out to distill, with help from the Congressional Research Service (CRS), what are in my view the key procedural mechanics of Senate self-governance. My primary objective in this series is to chart out the available options, with a little gloss here and there, though by no means do I intend to exhaustively classify all the permutations of those options.

Cutting to the chase, there are in my estimation three broad procedural options for ending (or mending) the filibuster: (A) the 67-vote option, (B) the 51-vote option, and (C) the 60-vote option. The 67-vote option is a straightforward amendment of the Senate Rules, in accordance with all the strictures of the existing rules and conventions. The 51-vote option is a trickier, more radical, and more contentious route often referred to as the “nuclear option” or “constitutional option.” And lastly, the 60-vote option is one involving any number of less dramatic maneuvers which would effect correspondingly less dramatic change.

I’ll discuss each of these options over the next three posts. But for the remainder of this one, let’s get the constitutional “underview.”

The Rules of Proceedings clause does not require that the Senate exercise majority rule, but it does preserve the right of the majority to determine the rules.

Article I, section 5 gives each chamber of Congress exclusive control over its own procedural rules: “Each House may determine the rules of its proceedings….” This is known as the Rules of Proceedings clause, and it is an important component of the constitutional framework of separated powers.

One might be tempted to read majority rule into the clause. After all, the text does not specify a supermajority requirement, and the framers knew how to require a supermajority when they wanted one. So, by negative inference, one could argue that the Constitution gives the power to set the rules of the Senate to a simple majority of senators, and thus any supermajority requirement imposed on top of that should be unconstitutional.

But one should resist the temptation. People intuitively dislike the idea that one Senate majority could impose a supermajority requirement that would hobble future majorities without their consent. But the Constitution gives rulemaking authority to the whole Senate, not just the Senate majority. And crucially, unlike the House of Representatives, the Senate was conceived and constituted as a continuous body, with senators serving relatively long, staggered terms.

Ultimately we must accept the following two propositions: (1) the Constitution does not instruct as to how to resolve the interpretive dispute over whether majority rule is required wherever a supermajority is not specified; and (2) the Constitution does not directly empower any entity outside the Senate to regulate the Senate’s interpretation of the Rules of Proceedings clause.

Of course, none of that means the Senate must adopt supermajority rules—just that it may; and if it does, our only recourse to change them is through the political process. In U.S. v. Ballin, 144 U.S. 1 (1892), the Supreme Court wrote:

The constitution empowers each house to determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained. But within these limitations all matters of method are open to the determination of the house, and it is no impeachment of the rule to say that some other way would be better, more accurate, or even more just. It is no objection to the validity of a rule that a different one has been prescribed and in force for a length of time. The power to make rules is not one which once exercised is exhausted. It is a continuous power, always subject to be exercised by the house, and, within the limitations suggested, absolute and beyond the challenge of any other body or tribunal.

I emphasize the last bit because it shows that, in a roundabout sort of way, the Constitution ultimately does make it the prerogative of the majority to set the rules of procedure—even when the majority adopts supermajority procedures for a time. That follows from what I said above: just as no one outside the Senate is empowered to impose majority rule on Senate proceedings, so no one outside the Senate is empowered to enforce the Senate’s supermajority rules.

The key here, as with so many aspects of our Madisonian system, is that the relevant constitutional actors, senators, are constrained not so much by the dictates of the Constitution as by the imperatives of politics.

Filibuster reform isn’t just about whether 67-, 51-, or 60-vote cloture would be best for the country, best for Congress, or most faithful to our democratic ideals. It’s about the power each individual senator has over the process. And for individual senators, the politics may cut both ways.

1. Our dysfunctional Senate
2. The logic behind Senate rules
3. The democracy behind Senate rules
4. Guidelines for Senate reform
5. Best quote about why Senate reform is needed
6. Assessing Senate reform proposals, Part 1
7. Assessing Senate reform proposals, Part 2
8. Wrapping up Senate reform with Superbill

I’ll comment on some of these another time. It’s excellent stuff that really challenges reform advocates to think hard about their positions.

We also hear a lot of demands for Dems to “make the Republicans filibuster” — in the old school sense — but under current rules that puts much of the burden on those who don’t want additional debate, and very little on those who say they do. If there are going to be changes made, what about considering one that keeps the numbers the same, but puts the burden where it belongs? What if cloture still required 60 votes, but that debate only lasted as long as at least 41 of the Senators voting against cloture remained on the floor?

Without thinking real hard about it, I like it. It faintly resembles the usual “live filibuster” proposals—which will never work—but with enough of a twist that it might actually succeed in ending the era of permanent filibuster while preserving the opportunity for minority “debate” time (whatever that’s worth). Not sure if that would be better than no filibuster at all, though.

But, as Jonathan Bernstein says in this authoritative take-down, Friedman and Martin are wrong. For two reasons. First, when a multi-senator filibuster is supported by at least 41 senators who will vote against cloture, the cost of maintaining a live filibuster is mostly borne by the majority, who must stay in or near the chamber at all times to answer potential quorum calls by the hijackers. Without fifty present, there’s no quorum and the Senate closes shop—no phonebook reading required. The hijackers themselves need only plan to have two or so senators on the floor at a time (gabbing senator & bathroom-break senator). Second, the political/electoral consequences of failure to accomplish the government’s important business fall on the majority and on the president. If the government is broken, the voters are going to blame the party in power for breaking it.

Friedman and Martin don’t say otherwise, but it’s worth remembering that there is no way for the majority to beat a filibuster without 60 votes for cloture.

Bernstein:

On tracking, the bottom line is that it is a tool of the majority party for the convenience of the majority party.   It does not make filibusters easier; it is a response by the majority to the fact that filibusters are easy under Senate rules.  Both parties, under a variety of Majority Leaders, have used it, because it helps the majority.  If you don’t like the 60 vote Senate, then you should support a change in Senate rules to end the 60 vote Senate, because that’s where the filibuster gets its strength, not from the tactics that majority parties have adopted to deal with it.

The larger point here is that we need a government that works. “Making them filibuster” is supposed to be a way to make the minority pay a political price for obstruction while at the same time preserving the tools of that obstruction. But ultimately, the reason we shouldn’t bother with this approach is that the filibuster itself is simply not worth preserving. It is a fluke of the rules—a bug, not a feature. Bugs should be fixed, not accommodated.

• The great constitutional debates of the first Congress took place in the House of Representatives, not the Senate. The House hardly suffered for lack of deliberation. Notably, the historic debate leading up to the famous “decision of 1789″—which established a congressional precedent by which executive officers were understood to serve at the pleasure of the President—took place in the House. This is especially interesting given that the issue under debate was largely about the unique constitutional powers of the Senate. (One view in the debate held that, because the Senate’s “advice and consent” was required to appoint top executive officers, Senate approval should also be required to remove them.)
• Senate proceedings were actually closed to the public and the press prior to 1794.
• James Madison, “father of the Constitution,” served in the House, not the Senate. That’s not decisive evidence of anything, but no one can deny that Madison had serious deliberation skills.
• When the first Congress was seated in 1789, only eleven states had ratified the constitution. Twenty years later, in 1809, there were 17 states, making 34 senators. There’s no magic number of senators above which limits on debate must be institutionalized to prevent runaway exploitation of the rules protecting minority participation in debate, but surely the size of the body is relevant to the need for such rules. And if so, well, it’s only natural that the Senate did not adopt such rules in the early years—it didn’t need to.¹

1. The history of senate procedure is actually more complicated than that. There apparently was a rule to stop debate and move to a vote—”moving the previous question”—which was discontinued in 1806. But discussion of that will have to wait for a future post.