How To Get Rid Of The Filibuster

A version of this story appeared in CNN's What Matters newsletter. To get it in your inbox, sign up for free here.

(CNN)We have written a lot about how the Senate filibuster rule is holding up progress in the federal government.

Right now, nothing can become law without a supermajority of 60 Senate votes and Republicans have made it pretty clear they are unwilling to work with Democrats on much major legislation.

That means Washington is stuck, even though we have a number of major problems, like climate change, immigration, the need for infrastructure investment and an Affordable Care Act that needs fixing, but is essentially stuck in time.

Manchin and the grim reality of Washington's minority rule

So I found it very interesting to listen to this week's Politically Sound podcast in which CNN political director David Chalian interviewed longtime former Senate Parliamentarian Alan Frumin, who is now a CNN analyst.

David really drew out of him the main thing which I think has been lacking in Democrats' hand-wringing over the filibuster, and that's a coherent, thought-out defense of the filibuster and the way it should work, to the extent it used to work.

Frumin also identifies how the system and the filibuster are very much not working right now. The arguments, which I've excerpted below, won't change the mind of any Democrats angry that Sen. Joe Manchin, the West Virginia moderate, killed their dreams of majority rule this week. Watch Manchin's interview this week with CNN here.

(I also think he conflates two things -- the fact that bipartisan legislation has been achieved in the past, and the fact that the system worked in the past.)

We should entertain the idea that quality change might have come quicker if the rules had been different. Frumin's comments below are worth reading. You can listen to them in full here. Also, subscribe to David's podcast.

Should the Senate just return to the talking filibuster, where senators can hold things up as long as they're talking?

Frumin: I am not a fan of the talking filibuster. The talking filibuster does not work. The idea, as I understand it, behind the advocates of the talking filibuster is twofold. If you make them talk, those bad people who are filibustering, they will be embarrassed. They will be exposed for the filibusterers that they are, and they will pay a price. I believe that those assumptions are invalid. I think somebody who is opposing the consideration of a particular piece of legislation is more than happy to come to the floor and speak.

The most famous filibusters were the ones, ultimately defeated, to stand in the way of Civil Rights legislation in the 1960s. What can we learn today from those events?

Frumin: A leader as strong as Lyndon Johnson was somehow able to find the votes necessary for cloture, despite the attempts on the part of the Strom Thurmonds of the world to filibuster proposed civil rights legislation. I don't know if the Senate will see another Lyndon Johnson or somebody with his persuasive powers. And so, if there is a lesson, the lesson is that it took a Lyndon Johnson and his ability to, shall we say, persuade.

What's the most notable filibuster you witnessed as parliamentarian?

Frumin: The most interesting filibuster I experienced in my time at the Senate was the filibuster that greeted me as a nascent third assistant parliamentarian. And it was an ironic filibuster conducted in the fall of 1977. And it was noteworthy to me, as I said, because it was a filibuster waged by Democrats against a Democratic president's proposal, which perhaps that wasn't that unusual in the civil rights era. But in 1977, it struck me as very unusual.

Chalian: And even more so, too, I would say it's probably even much more so unusual for that kind of thing to occur today.

Frumin: Well, I think so, yes.

Is abolishing the filibuster is a good idea?

Frumin: I've defended the filibuster since 1977, and I tell people that defending the filibuster is an acquired taste. I certainly did not come to the Senate in 1977 as a fan of the filibuster. But I became a fan of the filibuster, as I think any Senate parliamentarian has to be in order to interpret the rules and give advice on the rules. I came to understand and appreciate back then that the theory that it was a tool to promote consensus and cooperation... Theory and practice were not as far apart then as they've become. The idea that full unlimited debate, i.e., the potential for a filibuster would promote cooperation and consensus. It used to work.

But consensus no longer seems achievable. What's changed?

Frumin: When you think about it, the Senate managed to make it through the 19th century, including the civil war, at a time when the filibuster was available. And yet the filibuster did not grind the Senate to a halt in any meaningful way during that period of time.

And so the idea that a legislative body would not compel action, that a simple majority could not compel action and could not dictate to the minority, I think that's a laudable concept. But it does depend on both sides understanding that concept and treating that concept with respect and restraint.

In essence, the majority had told the minority over the years, we are granting you the privilege to say... not only so much to say no -- you can say no simply by voting no on a bill -- but by saying, hell, no, we're not going to let you get to that bill. We're not going to let you get to that nomination. And minorities over the years understood that this was a privilege granted to them by the majority, but it was a privilege that could be revoked. And so, there was a balance and I like to say there was a balance based on the Senate having a critical mass of responsible adults in both parties. This is the dynamic you in the minority can say no to everything, say hell no to everything, and we get nothing done, or we can compromise here.

Do you see fewer responsible adults in the Senate today?

Frumin: Yeah, yes, yes, unfortunately, to my perspective, you see fewer responsible adults, you know, the Senate is a, I think, a delicate mechanism and responsible adults, mature adults were handed this delicate mechanism. And over the years, and I'm not going to point fingers or name names, over the years, that the critical mass of responsible adults has eroded. I can see the movement to get rid of it, but I'd like to see is finding a way somehow to find a middle ground. But I recognize the pain that its frivolous use has inflicted on the Senate.

What changes should be made to the filibuster without getting rid of it?

Frumin: Right now, the burden of ending a filibuster is strictly with the majority. Fifty-nine yeses, zero nays is not sufficient to invoke cloture under the current rule. I would like to see, at a minimum, the vote required to come from senators voting, assuming a quorum is present, in which case those who are filibustering will have to come to the floor and vote no against cloture. To me, that's the most obvious change with respect to the cloture rule that I would like to see.