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How to Fix the Filibuster Without Interrupting Congress

The filibuster is a historic accident. Many experts believe that this is ruining Congress and violating democracy. It allows a small political minority to grossly run over the majority and stop things that the American people need and want. But Senate Republican Leader Mitch McConnell says if Democrats get rid of it, Republicans will stall everything and leave a “Senate of the Scorched Earth”. Is there a way out of this chaos? Norman Ornstein is one of America’s leading convention scholars. He has three ideas to fix the filibuster without the American government collapsing completely.

Listen to the full conversation here:

Matt Robison: Why is the filibuster important?

Norm Ornstein: If you are interested in results that affect our daily lives, the Filibuster should be your concern. It governs our ability to act in areas ranging from voting rights and democracy reforms to repairing our infrastructure. All of these things have been blocked by the abuse of what was initially an accident.

Matt Robison: How did we get here?

Norm Ornstein: In 1805, Vice President Aaron Burr proposed a tiny rule change that meant the majority could not end the Senate debate. Eventually the senators figured out how to use this rule. The filibuster was mainly used by segregationists for most of the 20th century who blocked actions related to civil rights and voting rights.

In 1975 both parties got together and worked out a new compromise: [a rule allowing the majority] to end the debate. They moved the standard from “two-thirds of those present and entitled to vote” to “three-fifths of the Senate”.

But that burdened the majority of collecting 60 votes to make a difference. This eventually enabled Mitch McConnell to really take advantage of the rule during the Obama years. He saw that filibustering everything – small bills, big bills, nominations for courts – could tie the majority in knots.

Matt Robison: You have suggested that there might be reforms that could appeal to reluctant Democrats and avoid Republicans from blowing up the Senate. What are you?

Norm Ornstein: One is to incriminate the minority, not the majority. Instead of having 60 votes to end the debate, it takes 41 to continue the debate. The minority should have 41 members. That would mean that at least the filibuster would not be used as a mass obstruction weapon. It would ultimately be reserved for the most important measures. I would also get the minority to discuss the real issue. No reading green eggs and ham to waste time. You’d need to talk about why you’re blocking, for example, a universal background check bill that is supported by 94% of Americans.

The second idea is just to go back to this “presence and voting” standard. So it matters how many senators actually show up. If 20 of them don’t show up, it only takes 48 votes to end the debate. Let the minority get back to work.

And then the third option is to lower the threshold to end the debate for good. You could cut it down to 55 senators. But you could also be more creative. Former Senator Tom Harken’s idea was to lower the threshold while you are debating a bill. So start with a level of 60 votes for a couple of weeks. And then lower the bar to 57 and then to 54 and then to 51. So in the end the majority will have the ability to act, but the minority will have plenty of time.

Matt Robison: Do Democrats have to come up with some bipartisan appeal first? Allow Republicans to Act in Good Faith?

Norm Ornstein: I am all for it and understand that you do not want to delay the action for long. These voter suppression measures, which Republicans enact in many state legislatures, are about to be signed. Once they’re branded in, they’ll be harder to overcome. We have a national law on voting rights [the For the People Act]. If you don’t get that done until 2022, you’re probably too late.

We already have a political system stacked in favor of the minority. [Because of the number of Senators per state]The 50 Democrats in the Senate represent 41 million more people than the 50 Republicans. So there is a minority rule in the Senate as it is. We don’t need the filibuster to protect the minority. What we need is more ability to enable a majority to act. Especially when there is an overwhelming majority in an area where there is a clear national need.

Every week we share excerpts from the Great Ideas podcast that explains how policies work and introduces innovative solutions to problems. Please subscribe, and to hear Norm Ornstein’s other insights into the filibuster and voting, read the full episode on Apple, Spotify, Google, anchor, Breaker, bag, RadioPublic, or Stitcher

Matt Robison is a writer and political analyst focusing on demographics, psychology, politics, and economics trends that shape American politics. He served for a decade as the legislative director and chief of staff for three members of Congress on Capitol Hill, as well as serving as a senior advisor, campaign manager, or advisor on several New Hampshire congressional races. In 2012, he ran a comeback race dubbed the election’s biggest surprise win by national political analysts. He then served as Policy Director in the New Hampshire State Senate, successfully helping to coordinate legislative efforts to pass the Medicaid expansion. He has also done extensive private sector work on energy regulation policy. Matt holds a bachelor’s degree in economics from Swarthmore College and a master’s degree in public policy from Harvard Kennedy School of Government. He lives in Amherst, Massachusetts with his wife and three children.

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