The filibuster's future

Tuesday, January 4, 2011; 8:37 PM

WHEN SEN. Tom Udall (D-N.M.) comes to the Senate floor Wednesday to propose changes to Senate filibuster rules, his colleagues will have two issues to consider. The first is whether the changes are justified. The second is whether the mechanism Mr. Udall proposes to use to rewrite the rules - by majority vote rather than the usual 67 senators - is wise.

The answer to the first question is yes. The increasing failure of the Senate to conduct its work, including voting on executive branch and judicial nominations in a timely way, argues, if anything, for more change than the Udall plan contemplates. The answer to the second question is more difficult. The new Senate has the authority to alter its procedures by majority vote, but doing so would set a precedent that future Senates could employ to make more radical changes to override the rights of the minority. A better solution would be for Senate leaders to negotiate a package of rule changes that could garner 67 votes. To make certain that the rules are not tilted to favor one side, these changes could be set to take effect in the next Congress, when it is not clear which party will be in the majority.

The Udall proposal would end the use of the filibuster on the "motion to proceed"; filibusters would be permitted only on the final package. This would reduce the use of the filibuster as a delaying tactic. Mr. Udall also would require those using the tactic to be on the Senate floor. This change too holds the prospect of reducing the number of filibusters without eliminating them. Finally, the proposal would eliminate the "secret hold" on nominations, a change that ought to have been accomplished years ago. Any senator who wishes to oppose a nominee ought to be required to say so publicly.

We think the Senate should go further and eliminate the filibuster for some or all executive branch nominations. Presidents are generally entitled to staff their administrations with officials of their choosing.

At the same time, there are potentially dangerous consequences to changing the rules by majority fiat. In the short term, the maneuver would end any prospect, however slim, of continuing the type of bipartisan cooperation that emerged during the lame-duck session. Further poisoning the partisan atmosphere is the last thing the Senate needs at a time when lawmakers will be asked to tackle critical fiscal issues.

In the longer run, the move would empower a future Senate to rewrite rules to its own liking without regard for the Senate's tradition of protecting the rights of the minority. This option may be constitutional, but it is also radical - or nuclear, to use the term of a few years back. As with actual weaponry, the better course is not to deploy the device but to use its deterrent effect to encourage a negotiated solution.

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