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Can the filibuster long survive?

Can the filibuster long survive?

(Editor's Note: This piece first appeared in the Washington Examiner on January 30, 2018).

The government shutdown last week prompted, like clockwork, renewed calls to abolish the legislative filibuster at both ends of Pennsylvania Avenue.

President Trump and congressional Republicans believe curbing the practice is essential to passing their agenda over the Democrats’ objections.

But the Senate’s present dysfunction cannot be pinned solely on the minority party. And focusing on the filibuster alone as the source of congressional gridlock overlooks the ways in which Republicans can get the Senate working again simply by changing their own behavior. This is because the way in which they run the Senate makes it easier for Democrats to obstruct their agenda.

Instead of changing the rules using the controversial nuclear option, Republicans should try enforcing the Senate’s existing rules. Doing so allows Republicans to stop Democrats from preventing votes on important legislation simply by saying, “I object.”

Take the rules governing how the Senate votes. The Republican critique of the filibuster is that it prevents the Senate from voting on their agenda. Left unsaid is the fact that Republicans can increase considerably the likelihood of that agenda passing by adhering to the procedures by which the Senate votes under its rules.

Outside of the cloture process and other expedited procedures like reconciliation, only the presiding officer can call for a vote on the Senate floor. However, there are limits on when the presiding officer can do so. According to Senate precedents, “As long as a senator has the floor, the presiding officer may not put the pending question to a vote.” In that scenario, “debate may continue indefinitely if there is a senator or a group of senators who wish to exercise the right of debate.”

But a senator’s right to debate, or filibuster, is limited by his or her ability and willingness to speak. In other words, the right to filibuster does not give senators the ability to veto the measures on which the Senate votes.

That is, unless the majority chooses to schedule votes via unanimous consent instead of pursuant to the rules.

Doing so may make life easier for Republicans. But that convenience also makes Democrats more powerful than they would otherwise be if the Senate adhered to the process for voting stipulated in its rules.

Calling for the strict enforcement of the Senate’s rules governing voting is not unprecedented. Sens. Harry Reid and Mitch McConnell did so just five years ago as part of a package of reforms to the Senate rules they negotiated to forestall action on the nuclear option at the beginning of the 112th Congress.

As part of that package, Reid and McConnell reached a gentlemen’s agreement they memorialized in an exchange on the Senate floor. In it, Reid alerted his colleagues that “when the majority leader or bill manager has reasonably alerted the body of the intention to do so, and the Senate is not in a quorum call and there is no order of the Senate to the contrary, the presiding officer may ask if there is further debate, and if no senator seeks recognition, the presiding officer may put the question to a vote.” Reid pointed out that the presiding officer could call for a vote in this way “pre-cloture or post-cloture on any amendment, bill, resolution or nomination.”

McConnell concurred, stating that voting in this way was “consistent with the precedent of the Senate with the understanding that senators are given the timely notification of the presiding officer’s intention so that they will be able to come to the floor to exercise their rights under the rules.” And as the Senate’s rules and practices make clear, timely notification only gives senators the opportunity to speak on, not the opportunity to veto, the pending legislation.

Both Democrats and Republicans are responsible for the Senate’s dysfunction today. Ending the gridlock endemic in the institution requires both parties to change their behavior. Republicans can lead this effort by enforcing the rules governing how the Senate votes. They don’t need the Democrats’ permission to do so.

Adhering to the rules would limit excessive obstruction without eliminating the minority’s ability to obstruct altogether. Republicans can thus increase the Senate’s legislative productivity without further limiting the ability of its members to deliberate.

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