Sen. Al Franken (D-MN) is trying to gain support for a modest proposal to change Senate rules to deal with the issue of filibuster support by proxy. The current arrangement allows Senators to support a filibuster even while on a tropical vacation.
The rules regarding cloture in the Senate are unlike almost any other rules because the number of votes needed to invoke cloture are calculated based on the number of “duly chosen and sworn” Senators and not on the number “present and voting.” Cloture requires the affirmative vote of three fifths of the Senators sworn in. The result is that a Senator’s absence has the same effect as an actual vote against cloture. A cloture vote outcome with 59 in support to one vote against cloture would still fail since it didn’t get affirmative votes from three fifths of all Senators sworn in.
What this means is that a Senator opposed to cloture doesn’t even need to show up to vote against it, their absence has the same effect. As long as only a mere handful of their allies hold the floor, they can be sleeping at home, out fundraising with lobbyists, or even on a tropical vacation and still support the filibuster by proxy.
Even more, the sponsor of a bill could end up providing support for a filibuster of their own legislation if they are absent during the vote. Because of how the cloture rule is written, if a Senator is incapacitated (such as undergoing emergency surgery), their absence has the same effect as a vote against cloture.
Franken’s proposed change would end this absurd practice of filibuster by proxy. Instead of requiring an affirmative vote by three fifths of sworn Senators to invoke cloture, cloture would be invoked unless more than two fifths of sworn Senators voted against it. This would mean 41 Senators would actually need to be in the Senate voting against cloture to prevent debate from ending.
An alternative way to achieve similar ends would have been to simply change the cloture requirement from three fifths of those “duly chosen and sworn” to three fifths of those “present and voting.”
Franken’s amendment requiring that people at least be present to support a filibuster should be part of any reform package. It is well past time that Senators should end the practice of supporting a filibuster while on vacation.