Disarm the Filibuster

filibuster reformThere’s a chance that the U.S. Senate will return to some semblance of a functioning legislative body. A majority of senators could vote to eliminate Rule XXII, which authorizes the notorious filibuster.

Article 1, Section 6 of the Constitution, which gives to both houses of Congress the determination of “the rules of its proceedings,” offers that opportunity on the first day of each new Congress.

The filibuster, which requires a supermajority to cut off debate, entered the Senate’s rules in 1807 as a courtesy to speakers. Since then, Rule XXII has metastasized into a procedural vise that threatens the democratic foundation of our government.

The filibuster lost all semblance of being an aid to discussion in the middle of the nineteenth century, when some senators began using the rule to hold the floor for lengthy speeches to prevent voting on bills they didn’t like.

Until forty years ago, this partisan weapon was used sparingly — no more than ten times in any two-year congressional session. Then, in the 1970s, frustrated by even that small number of interminable talkathons, senators introduced the concept of the “silent filibuster” which enabled members to merely indicate that they intended to filibuster to block a measure.

Since 2007, the Republican minority has expanded the use of the filibuster beyond any recognizable procedural rule. In the 110th, 111th and 112th Congress, they filibustered 380 times. Today no legislation can be introduced, no nominations considered, no votes taken without a supermajority of 60 votes.

This formidable, partisan tactic has become so common that bills like the DREAM Act and the Paycheck Fairness Act have failed in the Senate despite having enough votes for passage because of the deadly filibuster.

The Founding Fathers, rebelling against monarchy, were so partial to majority rule that they specified in the Constitution only five instances requiring a supermajority. They were: to override a presidential veto, to expel a member, to approve treaties, to convict in an impeachment and to propose a constitutional amendment.

The Constitution does not require a supermajority for adopting the rules for Senate proceedings. When senators insist upon supermajority votes for rule-changes and filibusters, they are stealthily amending the Constitution.

Two years ago, Senators Tom Udall, Jeff Merkley and Tom Harkins mounted a campaign for rules reform. They succeeded in getting rid of the anonymous filibuster, an even more egregious practice. Now, after two additional years of accelerating legislative obstruction, Senate Majority Leader Harry Reid has finally called for ending the silent filibuster.

Reid’s proposal would prevent the use of the filibuster to block the introduction of new measures. More important, it would require a senator to speak if he or she wished to halt a vote, instead of effortlessly indicating an intention to demand supermajority concurrence to continue any action.

Newly-elected Senators Elizabeth Warren, Angus King, Heidi Heitkampf and Martin Heinrich have joined the filibuster’s foes, but the outcome of even Reid’s mild proposal is far from certain. Senator Carl Levin is now assembling a bipartisan group to oppose any substantive change in the Senate’s rules.

Far more promising than Reid’s “make them talk” effort is the lawsuit filed by the public advocacy group Common Cause. Contending quite correctly that the Senate’s arcane rule is actually threatening our democratic process, their case highlights the stake that we American citizens have in the filibuster issue.

Suing on behalf of Representatives John Lewis, Michael Michaud, Hank Johnson, and Keith Ellison — and three young people hurt by the use of the filibuster to block the Senate from passing the Dream Act in 2010 — Common Cause must demonstrate that its case does not fall under “the political question doctrine,” which posits that the judiciary can’t interfere with Congress’s procedures. Lawyers for Common Cause are arguing in the litigation that the Senate’s rule-making powers are not absolute, particularly when they violate actual constitutional law, in this case the principle of majority rule.

Resistance to changing the pernicious rule that is stifling the will of the majority rests on a historical myth and both parties’ fear of being curtailed when they are in a minority.

The myth teaches that the Senate was meant to counteract the democratic structure of the House. The opinions of the Founding Fathers tell otherwise.

The so-called Great Compromise at the Constitutional Convention of 1787, which granted each state two Senate seats regardless of its population, reflected a concession, not a principle. Because there were far more small states in the original 13 than large ones, the arrangement proved necessary to getting the delegates in Philadelphia to agree on a draft constitution.

As a consequence, Wyoming’s 180,000 registered voters have the same number of senators as California’s 18 million. Today’s filibustering senators are only furthering this imbalance.

The Founders designed the Senate to be a steadying force in Congress, with six-year terms and a requirement that members be at least thirty years old, but no Founding Father ever spoke in favor of minority rule.

James Madison, the father of the Constitution, recognized that majorities could err, but insisted persuasively that majority rule was far superior to any other mechanism for making legislative decisions. His views anticipated Winston Churchill, who noted that democracy might be considered the worst form of government except for all the others.

The rationales for the filibuster are but fig leaves to hide the fact that substantial numbers of senators in both parties want an insurance policy against minority impotence, and they are willing to curb the workings of our democracy to get it.

Now only an aroused public can get Democrats and Republicans in the Senate to see the damage that the filibuster is doing to our political order.

Majority rule is the bedrock democratic principle. When we citizens of the United States elect a majority, we want it to govern. Wisdom, experience, and the Constitution are on our side; let’s hope that enough members of the Senate move there also by January 3 when the opening of the 113th Congress gives them a chance to vote with their hopes instead of their fears.

Joyce Appleby
History News Network

Monday 7 January 2013

Comments

  1. JoeWeinstein says

    The problem is the underlying attitude – codified into the 1787 constitution – that legislation is and should be formally adversarial: decisions are taken by yea-nay votes – a feature which automatically creates two sides. This notion could work at first because in fact there was tremendous collegiality and consensus within the tiny political oligarchy which filled the Congress, regardless of party labels. But relying on informal collegiality to override a formal constitutional reliance on adversarial oppositions doesn’t work now, and it has often failed the country. It gave us a civil war.

    Partisanship and adversarial conduct in Congress and in other offices pays, because getting into office has been made an all-or-nothing thing: the winner by one vote in a mass election gets all the marbles for an extended term, the losers get none. Both the winner-take-all and the extended-terms features are dangerous. A multi-party proportional representation system would get us away from the first feature, but still leave us with the second – which could still be bad, because again big rewards will still go to those who play on partisan differences.

    Public policy or law decisions by majority of long-term legislative office-holders should be a last resort, not first resort. Such decisions should instead better be by deliberative consensus, as in court juries, and by people who – like court jurors and unlike politicians – have only limited terms and no career stakes in the process.

    Rather than a single long-term all-powerful legislature of career politicians, decisions can be made by many short-term juries of ordinary citizens, each chosen by lot, and given restricted power to make a few deliberative decisions as public service.

  2. harry wood says

    They may have a majority of votes but we
    are not a government ruled by the majority.
    If we did, 51 voters would rule.
    Even our highest office is not elected by a majority.

    We do not have a majority rule form of
    government. The
    super majority is 66 votes not 60.

    I can not believe you think so much of
    majority rule and then put up with bills being written in back rooms, not
    brought to the senate floor in order to discuss the merits of the bill, and no
    budget bill has been on the floor of the senate for years, which is not as your
    constitution requires. The latest
    pork bill being a good example.

    There are a great many papers of the
    founders which seem to have been lost to the public and the courts and there is
    not enough room here to address them.

    The founders did not count on leader
    Reid, he has total control on what is allowed to be considered by the
    senate. If he does not like the bill, no
    one votes on it. He has not allowed many
    bills from the house or POTUS to be voted yes or no.

    If Reid would allow the rule of regular
    order in the senate, perhaps more would get done, but then some of it may not
    be what he wants done. The thumb that is
    blocking bills being voted on in the senate is attached to hand of leader
    Reid. The senate can only act when he
    wishes it to do so.

    As the saying goes, you are barking up
    the wrong tree. You have made a
    gallant effort to rewrite our founding
    papers but today the bottle neck is Reid.

    Majority rule
    is the bedrock democratic principle. When we citizens of the United States elect a majority, we want it to
    govern. Wisdom, experience, and the Constitution are on our side; let’s hope
    that enough members of the Senate move there also by January 3 when the opening
    of the 113th Congress gives them a chance to vote with their hopes instead of
    their fears.

    Joyce Appleby

    History News Network

    Monday 7 January 2013

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