Yes, we can fix the filibuster
My approach on the filibuster is the same as Bill Clinton's on affirmative action: mend it, don't end it. Here are 4 1/2 steps to a better filibuster:
Step One: No filibuster for executive-branch positions.
The president is due enormous deference in staffing his own administration. That's been sorely lacking in recent years. The latest victim is Dawn Johnsen, the president's choice to head the Justice Department's Office of Legal Counsel, whose nomination was withdrawn after languishing for 14 months.
Once, filibustering a nomination -- executive or judicial -- was a rarity. Defeating a nomination by filibuster was rarer still. In the 60 years before Barack Obama took office, cloture petitions, the procedure for ending a filibuster, were filed for 32 executive-branch nominations. During Obama's presidency, cloture petitions have been filed in the case of 14 executive-branch nominees. This understates the problem because it does not include nominees such as Johnsen who never got that far.
Some filibuster critics have lumped together executive-branch and judicial nominations, contending that the filibuster is inappropriate or even unconstitutional in both cases, or that filibustering judicial nominees is particularly noxious.
I'd leave the filibuster where it is -- a break-in-the-case-of-emergency tool -- for judges. The Senate should be more assertive when it comes to a lifetime appointment.
Step Two: Allow only one bite at the apple.
A single senator seeking to gum up the works can filibuster both the proposal to take up a measure and the measure itself. Because it takes time to end debate (see Step Three), the opportunity for gridlock is doubled. This breeds filibuster as harassment, even when the underlying measure is overwhelmingly popular. Democratic Sens. Evan Bayh of Indiana and Michael Bennet of Colorado have recommended doing away with the ability to filibuster a motion to proceed. They're right.
Step Three: Grease the skids.
The existing rules slow things down not only because they require 60 votes but also because they take up a lot of Senate time -- a huge disincentive to trying to end debate. Once a cloture petition is filed to cut off debate, it must sit around for two days. After that, the rules provide for 30 hours of debate before a vote to end the filibuster. During those 30 hours, the Senate can't take up other business. This delay is unnecessary and counterproductive. It sounds like an oxymoron, but a fast-track filibuster would be a huge improvement.
Step Four: Be patient.
Fixing the filibuster is going to take time. Changing Senate rules generally requires a two-thirds vote -- more than the number to overcome a filibuster. There is a way to get around this, but it would cause an uproar.