I am far from the proponent of "destroy the fillibuster" (I think it is a significant protection on the potential for a slim majority to pass legislation in a hasty or potentially discriminatory/retaliatory manner)but as it has been abused in recent years, it has turned the Senate from the "world's greatest deliberative body" into a mess. Having thought about it, I want to suggest a simple solution.
Under current rules, there must be 60 "yay" votes in order to close debate, no matter how many folks abstain or are otherwise not present. This means folks can weasel and not appear on the floor and don't count. My suggestion is quite simple--we don't change the percentage required, but simply change how we count it. As long as there are 40+ "nay" votes on the cloture motion, debate/fillibuster continues--if there are fewer than 40 nay votes, the process moves forward. Why do I like this better than the "just get rid of it?" Let's talk after the fold.
- Preserves the sometimes significant function of the fillibuster. Realistically, no one party is going to be in the majority for all eternity. The preservation of some rights and ability of the minority to shape debate is significant.
- Forces those who wish to continue debate/inaction to be on record as doing so, rather than letting people abstain and function as a silent fillibuster. Example--on the cloture vote on the original Obama tax plan (extend cuts for those making under 250K, eliminate cuts above),the margin was 53-37, with 10 GOP not voting--they didn't have to because their votes weren't needed. Under my proposal, cloture would be invoked because there were not 40 "no" votes.
- Consistent with prior practice and use of the fillibuster. All too often, our position on the fillibuster varies largely based on who's using it. We (rightfully) found the "nuclear option" wrongheaded when the GOP considered using it to move forward with judicial nominees under Bush despite a fillibuster from the Democrats. However, we now scream and yell that the fillibuster is unconstitutional.
Is this going to prevent every fillibuster? No, particularly since the GOP has placed an ever-increasing premium on party discipline and the margins are tighter in the next Congress. But it means fillibustering has a cost, and places the onus on those who want debate/a fillibuster to continue indefinitely to come up with the votes, rather than placing the onus on those who want to move a legislative agenda forward. It seems to me that's a much more sensible place to start.