On January 3, 2013, 100 senators and 434 representatives (there is one vacancy) will take the oath of office and become the 113th Congress of the United States.
Senate Democrats picked up two additional seats in the 2012 elections, giving them a 55-vote majority, including the two Independents, who are expected to caucus with the majority party. With the Republicans holding 45 seats, and Vice President Joe Biden’s tie-breaking vote, it might appear that the Democrats have a comfortable cushion; but under the current filibuster rules, any senator can still stall a vote and demand a supermajority of 60 votes to pass almost any bill.
The Senate can change those rules, but must do so on the first day it is in session. There is considerable pressure for senators to take advantage of this opportunity as a way to help end partisan gridlock. Once a rarity, over the last four years, the number of filibusters more than doubled from the previous period, practically bringing Senate business to a halt. During the 112th Congress, the Senate was the least productive in modern history, passing only 2.8 percent of the bills introduced. (For more background on the filibuster and its history, see the February 2011 Congressional Digest on “Filibuster Reform.”)
Democratic senators are conflicted, however, about how to proceed. The problem is that changing the rules requires a two-thirds majority. If the leadership can’t get the 60 votes needed to override a filibuster, it’s highly unlikely they can get 67 votes needed to change the filibuster rules. As a result, some senators, most prominently Mark Udall (NM-D) and Tom Harkin (IA-D), have been calling for what is called the “constitutional option,” which would allow a rule change by a simple majority vote. Many believe that this option is too extreme and would only exacerbate party polarization.
However any filibuster reform votes take place, a range of proposals are on the table. The most far-reaching would allow for a simple majority to pass legislation. Another would ban the filibuster on motions to proceed. (Currently, a single senator can use the filibuster as a tactic to prevent a bill from even being debated.) Still another proposal would require the filibustering minority to actually speak ceaselessly on the Senate floor (in the tradition of Mr. Smith Goes to Washington) until one side or the other gives up the fight. Also under consideration is a proposal to shift the burden to the minority party, so that 41 votes would be needed to sustain debate instead of 60 votes to end it.
Proponents of reform ― whether major or modest in scope ― say that the rules should be changed so that the filibuster can no longer be used for routine matters, or simply, as they charge, to deny the President a success and blame him for ineffective governance. They also note that, under both Republican and Democratic administrations, many nominations have been blocked by threats of filibusters from up-or-down votes ― and that these holdups put an extra burden on government, especially the judicial system.
Opponents contend that in recent years Republicans have been forced to use the filibuster as a tactic because of the majority leadership’s refusal to allow them to offer amendments to bills on the Senate floor. They say that changing the filibuster could open the door to total majority rule and remove the “historic rights” given to the minority. Such a move, they warn, would make the Senate too much like the House, where strict party rule holds sway, with less influence by individuals senators.
There appears to be a good chance the new Senate will approve some version of filibuster reform, possibly even through a deal between the two parties with adjustments that benefit both sides.
