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Franken’s Rule Change Would Put Burden on 41 Senators Filibustering

Sen. Al Franken (D-MN) has put a new twist on the Senate filibuster reform effort. He’s a cosponsor of the Udall/Merkley/Harkin plan to change the Senate rules. But he added a one-page tweak to the rules that would place the burden more on the entity doing the filibustering than the entity trying to break the filibuster. Here’s the entire change:


The second undesignated paragraph of paragraph 2 of rule XXII of the Standing Rules of the Senate is amended by striking ‘‘And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn’’ and inserting ‘‘And if that question is decided in the affirmative and there are not negative votes by more than two-fifths of the Senators duly chosen and sworn’’.

What that means is that, instead of needing 60 votes to break a filibuster, you would need 41 votes to sustain it. This would actually be somewhat meaningful. There have been multiple instances where the majority has been unable to get one of their people back to Washington in time to break a filibuster, or where one Senator had passed away. Think about the entire several months when Franken was still fighting out the election in Minnesota, and the Senate had a 59-40 split. Under these rules, the majority wouldn’t have needed another Republican to break filibusters; it would just have had to stop one of its members from shifting to the other side.

The entire point of these rule changes is two-fold: 1) make non-controversial legislation go faster, 2) make it more of a burden to keep up the filibuster. I don’t really think these rule changes go far enough, but they all fulfill that goal. If you’re the group filibustering, you now need all 41 of your members to vote (that doesn’t happen a whole lot; Republicans over the last two years have routinely skipped votes rather than join a filibuster); you need to sustain the filibuster through a talk-a-thon; if at any time you stop the talk-a-thon and give up the floor cloture will be invoked; you will be incented to stop the talk-a-thon with the promise of at least three post-cloture amendments (this can actually get a bit problematic, so we’ll see how that evolves).

It’s not a bold return to a majority-vote legislature, but it’s not nothing. And Franken’s piece, while on the margins, would help

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David Dayen

David Dayen