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Filibuster Reform Both Parties Can Agree On—A Commentary by Bruce Ackerman ’67

The following commentary was published in The Wall Street Journal on January 4, 2011.

Filibuster Reform Both Parties Can Agree On
By Bruce Ackerman ’67

When the Senate re-opens on Jan. 5, its first order of business will be a challenge to filibuster rules giving 41 members a veto. Reformers should think twice in designing their battle plan. Sweeping proposals are destined for failure. Only a narrowly targeted approach makes political sense.

There are three kinds of filibuster. One involves judicial nominations; the second, legislative enactments; the third, executive appointments. Reformers should focus on abuses surrounding executive appointments.

It's a mistake to condemn all filibusters. In the case of judicial nominations, requiring the support of 60 senators makes good sense. Once judges get on the bench, they can strike down statutes decades after their presidential sponsor has retired from the White House. Given their power to second-guess democratic decisions, judicial nominees should gain bipartisan support before they are confirmed.

In contrast, filibustering legislation is downright undemocratic—allowing a Senate minority to veto a bill that has majority support in both houses of Congress. Nevertheless, serious reform is a political nonstarter. Democrats currently have 53 Senate seats, but Republicans are only defending 10 of the 33 seats up for grabs in 2012. If the GOP holds on to them and takes an additional four, it will become the majority party. And if President Obama loses his re-election bid, the filibuster will provide the Democrats with their only potent weapon. They will never engage in unilateral disarmament at this juncture.

But there remains hope on a third front. The way the Senate deals with executive branch nominees is a scandal. If a single senator issues a "hold" on a nominee, the filibuster rules require 60 senators, and lengthy floor debate, to overcome his or her objection. Senators regularly use holds as bargaining chips to force administration cave-ins to their special-interest demands. For example, Sen. Richard Shelby held up 70 Obama nominations to obtain special funding for a couple of home-state projects.

Senatorial obstructionism has had a devastating impact. Between 1979 and 2003, Senate-confirmed positions were vacant 25% of the time. As presidential nominees slowly gain confirmation, other positions open up, continually undermining the team effort needed for effective operation of cabinet departments.

These continuing vacancies lead to desperate expedients. When Congress goes on a recess, the Constitution gives presidents the power to make temporary appointments that "expire at the end of [the] next Session." This means that Mr. Obama's future recess appointments can remain in office past the presidential elections in 2012.

Presidents Clinton and Bush made 139 and 171 recess appointments, respectively, during their time in office. Mr. Obama has been proceeding at a more rapid rate than Mr. Bush and may well pick up the pace if senators continue to exploit the filibuster. If the rules don't change, the Senate's power to provide "advice and consent" will erode over time, as presidents increasingly take unilateral action to fill positions on a recess basis. A reform that requires a speedy up-or-down majority vote on executive nominations is in the long-run interests of the Senate itself.

This is an especially propitious moment for action. Thanks to the agitation of the tea party, senators will be acting with great restraint in lobbying for earmarks. As a consequence, they won't be relying as much on holds to gain administration support for their special-interest deals. If there were ever a time when the Senate recognizes the filibuster's long-run risk to its role, this is it.

Reform is also in the president's interest. Although recess appointments are constitutional, they are rightly held in ill- repute. The new Senate rules would provide Mr. Obama with greatly enhanced legitimacy for his key policy makers. While a few of his nominees may not win confirmation in a closely divided Senate, this is a price he should gladly pay for a system that permits him to govern more effectively.

Constructive action on the filibuster will challenge nay- sayers who see only partisan gridlock ahead. It may even set the stage for further outbursts of common sense over the next two years. Stranger things have happened.

Mr. Ackerman is a professor of law and political science at Yale and the author, most recently, of "The Decline and Fall of the American Republic" (Harvard, 2010).