Reform can break gridlock without eliminating protections for minorities, the author says. A transparent filibuster reform

Once again, the Senate has stepped back from the brink of a conflict that some feared would bring about the demise of the institution.

It was a very near thing. Democrats came as close as ever in recent memory to invoking the “nuclear option” to eliminate filibusters on presidential nominees. The bomb was defused just as the controversy over judicial nominations in 2005 was — through an informal, ad hoc agreement that permitted some nominees to come to an up-or-down vote while dooming others.


But does anyone believe this is a viable long-term solution and that the controversy won’t extend to judicial nominations in the coming months?

It is time for the Senate to end this form of governing by brinkmanship and consider real, if unorthodox, reforms. We propose a solution that essentially institutionalizes the informal agreements on which senators have repeatedly relied when conflicts over nominations have reached crisis points.

This reform can break the gridlock in the Senate without laying waste to the upper chamber’s long-standing protections for minorities. It respects both the minority’s right to be heard and the majority’s right to rule.

Consider, as a concrete example, a hypothetical slate of three nominees — for either the executive branch or the judiciary — that Majority Leader Harry Reid wants to bring to a confirmation vote.

As is now the case, the decision to end debate on each of the three names requires a vote, and each senator has one vote for each nominee, or three votes in total. The vote to end debate is decided by a simple majority of votes cast, as opposed to the 60 votes required now. However — and this is the core of the idea — each senator can cast as many of his three votes as he wishes in favor of or against ending debate on any given nominee, with the constraint that he cannot cast more than three votes overall. If the senator feels strongly about stopping or advancing a particular nomination, he or she can spend several votes on one candidate.

All votes count equally. The vote to end debate takes place only once for each nominee. If it fails, the nominee cannot be confirmed. If it succeeds, the procedure for the final up-and-down vote remains unchanged: At that stage, the nominee is confirmed by a simple majority, with each senator casting a single vote, as happens now.

A senator, and a party, can save votes on nominations he or she does not feel intensely about to spend on the ones he or she considers more important. By casting multiple votes, a cohesive minority can win at times, but only at the price of a lower chance at stopping other nominations. In our mathematical simulations, under plausible scenarios, a minority of 45 senators facing a majority of 55 can block about 25 percent of the nominees. The majority can govern, but the minority’s preferences matter.

In the old days, when the Senate required filibustering senators to bear the cost of holding the floor for extended periods, it valuably signaled the importance that the minority attached to the issue. Our proposal conveys the same information, without wasting scarce floor time or indefinitely leaving nominees in limbo. It formalizes the spirit of the compromise contained in the bargain made last week and by the Gang of 14 in 2005: The minority can block a nominee exceptionally but not all nominees indiscriminately. Informal bargains depend on personalities and circumstances. Our reform does not. It is transparent, simple and stable.

Alessandra Casella is a Straus fellow at NYU Law School and a professor of economics at Columbia University, where Sebastien Turban is a Ph.D. candidate in economics and Gregory Wawro a professor of political science.

This article tagged under: Opinion

Senate

Filibuster