Why we must reform the filibuster now!

In the last few years, two features of our political system have done more to stand in the way of progressive public policy than any other. The first is the role of corporate money in our politics. The second is the filibuster—which requires supporters of legislation to find not a majority of 51 but a super majority of 60 to pass legislation in the Senate.

Given the Citizens United decision by the Supreme Court, fixing the first problem is difficult. It is made much more difficult by the second problem

But on Wednesday, January 5, Senate Democrats may step forward and try to reform the filibuster. If they do, vote on filibuster reform will be the most important vote the Senate takes in the next two years.

That’s why it is critical for you to sign a petition, today, to tell Senator Casey to suppor efforts to reform the filibuster.

The filibuster is not in the Constitution

The filibuster—the ability for 41 members of the Senate to block legislation—is often thought to be a long standing Senate tradition or part of the constitution. But it is not.

The filibuster was, in fact, created by accident. Until 1806 the Senate operated under the customary parliamentary procedures that govern most organizations and most legislatures here and abroad: the Senate could cut off debate by “moving the previous question” which required only a majority vote.

In 1806, Vice President Burr called for a simplification of the rules. His proposal left out the procedure to move the previous question, on the grounds that it had rarely been used.

That fatal step made unlimited debate possible. But it was not until the 1830s that Senators occasionally began to use unlimited debate to block legislation and filibustering began. The filibuster was used so infrequently in the 19^th century that there were only rare attempts to thwart it until 1917, when a filibuster by Rober LaFollete and ten other Senators blocked legislation to arm commercial ships after German submarines had begun unrestricted warfare against the American merchant marine. Outrage against that filibuster was so great that the Senate adopted Rule XXII, which allowed two-thirds of the Senate to invoke clotures, ending debate.  In the aftermath of filibusters against civil rights legislation in the 1950s and 60s, Rule XXII was changed in 1975 to lower the requirement to three-fifths of all Senators, that is sixty Senators.

It is true that the Founders put the Senate in the constitution in part to provide a check on the popularly elected House of Representatives. But the Constitution requires a super-majority vote in the Senate in only six particular cases— (i) conviction of the President or judges after their impeachment; (ii) expulsion of a Member; (iii) overriding a Presidential veto; (iv) ratification of treaties; (v) proposing amendments to the U.S. Constitution; and (vi) removing a disability imposed for rebellion against the United States. The Constitution thus presumes that, on all other matters, the Senate will be ruled by a simple majority.  

The leading framers of the Constitution, James Madison and Alexander Hamilton, both criticized the idea notion that legislatures should be governed by super-majorities, that is a majority greater than 50% plus one.  In Federalist 58, Madison wrote:

It has been said that more than a majority ought to have been required for a quorum; and in particular cases, if not in all, more than a majority of a quorum for a decision. That some advantages might have resulted from such a precaution, cannot be denied. It might have been an additional shield to some particular interests, and another obstacle generally to hasty and partial measures. But these considerations are outweighed by the inconveniences in the opposite scale. In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. It would be no longer the majority that would rule: the power would be transferred to the minority. Were the defensive privilege limited to particular cases, an interested minority might take advantage of it to screen themselves from equitable sacrifices to the general weal, or, in particular emergencies, to extort unreasonable indulgences.

And, in Federalist No. 75, Hamilton condemned the requirement of a supermajority on legislative action, saying:

All provisions which require more than a majority of any body to its resolutions have a direct tendency to embarrass the operations of the government and an indirect one to subject the sense of the majority to that of the minority.

The Founders did not want government to be carried out in a rush. But it was the structure of our government—the checks and balances and the bi-cameral (two house) legislature, not the filibuster, that was meant to accomplish this task.  And while the Founders wanted deliberate government, they did not want to block government from acting. And they never supported the notion that minorities should be able to delay block the action of the majority indefinitely.

The filibuster grew up almost by accident. And for most of our history, it was rarely used, almost always when a regional minority opposed the actions of the majority, as when Southern Democrats notoriously used it to delay civil rights legislation in the 1960s.

Why there are so many filibusters today and how they affect our politics

Now a 60 vote majority is demanded by the minority on almost all important legislation and many judicial and administrative nominations. Two changes in our politics are responsible for this development.

First, as the parties have moved farther from the center—and especially as Republicans have moved very far to the right—they have been emboldened to use any procedural tactic to attain their aims. Because Republicans, far more than Democrats want to stand in the way of new legislative and administrative policies, they have initiated filibusters far more often than Democrats.

Second, a procedural change—which basically allowed the Senate to continue other business while technically filibustering one piece of legislation or nomination—reduced the cost of filibustering. Senators no longer have to hold the floor with speech after speech, and block other legislation they might support, in order to filibuster.

The result is that the use of the filibuster has skyrocketed, as the following chart shows.

And it is not just the 60 vote requirement that stands in the way of action. Individual Senators can also place “holds” on legislation and nominations. This allows Senators to hold legislation hostage in order to extort a ransom in return for approving action on legislation or nominations. For example:

• Senator Ben Nelson (D-NE) initially insisted on a special Medicaid deal for his state as his price for allowing an up or down vote on health care reform. 
• Senator Richard Shelby (R-AL) recently placed a hold on more than 70 nominees to demand approval of a $35 billion plane to be built in his state by corporations that had given handsomely to his campaign

With the rise of filibusters, we have seen progressive legislation blocked and watered down.

• If there had been no filibuster, the economic stimulus would have been strong enough to move the unemployment rate down faster
• If there had been no filibuster, a public option would have been part of the Affordable Care Act.
• If there had been no filibuster, the financial reform legislation would have been significantly strong.
• If there had been no filibuster, the Bush tax cuts on the wealthy would not have been extended.

And it is quite likely that, if there had been no filibuster, and Democrats had been able to take more decisive action to combat the recession, the election of 2010 would have looked very different.

The legislative branch is not only one hampered by the filibuster in the Senate—the executive and judicial branches have been suffering as well.

In the last two years, in the midst of the Great Recession, the Treasury Department was forced to function without its Deputy Secretary, Undersecretary for Domestic Finance, Assistant Secretary for Financial Markets, Assistant Secretary for Financial Stability, and many other important positions, with nominations delayed for up to a year or more.

Filibusters of judicial appointments have left one of every eight federal judgeships vacant. Supreme Court Justice Anthony Kennedy recently told the Los Angeles Times, “It’s important for the public to understand that the excellence of the federal judiciary is at risk”. Almost half of 876 existing federal judgeships could be empty by the end of the decade if the present rate persists for filling vacancies.

First steps toward reform

My view is that the filibuster, and the individual hold, should be simply eliminated.

But that is not likely to happen soon. Instead Democratic Senators, led by Senators Tom Udall and Jeff Merkely are proposing a number of rule changes that, while leaving the 60 vote cloture rule. Among the proposals being considered are these: 

1. Senators could no longer filibuster the motion to proceed to debate on the bill or amendments. Filibusters would only be allowed on the final vote.
2. Senators would actually be required to be present on the floor of the Senate to block action on legislation. This would raise the costs of carrying of filibustering in three ways and thus make it a less common practice. The filibuster would require block other Senate action. It would require Senators to actively rather than passively filibuster. And it would subject Senators who block debate on legislation supported by the public to condemnation.
3. Secret holds on legislation and nominations by individual Senators would be eliminated.
4. Instead of requiring that those seeking to break a filibuster muster a specified number of votes, the burden should be shifted to require those filibustering to produce a specified number of votes to continue the filibuster.

 Some Senators, including Tom Harkin of Iowa, have proposed that as days and weeks go by, number of Senators required to invoke cloture drop from 60 to 55 and then to a bare majority of 51.

These changes would all make filibustering less common. Together, they would prevent a minority of the Senate from blocking the action of a determined minority.

But won’t Democrats want to filibuster if Republicans take control of the Senate?

The one objection often heard to these proposals to weaken or eliminate the filibuster is that, at some point in perhaps the not so distant future, Democrats and progressives will want the filibuster available to stop conservative, regressive, or even tyrannical legislation proposed by Republicans.

This is an initially plausible position. But considering the state of our democracy at the moment, I think it is one we should reject.

No doubt, the Republicans are likely to propose some public polices, say on taxes, that we profoundly oppose and other policies, say on gay marriage or civil liberties, that would infringe on our rights.

The filibuster might be useful for us at those moments.

But, our rights and the common good ultimately rest in what we as a people want. I’m willing to trust, over the long term if not the sort term, in the majority of the people of this country to have the good sense to reject proposals that will threaten our rights and harm the common good.

It also might not be so awful if Republicans in power have a chance to institute their worst ideas. Their overreaching will, I believe, quickly lead to a response that puts Democrats back in power.

Moreover, given the politico-economic circumstances in which we find ourselves, we are the ones who need strong government action, action that the filibuster makes impossible. Corporate dominance of the economy and inequality is growing. After thirty years of government acquiescence in these trends, will continue to grow if we don’t take bold public action to reverse it. The Republicans are by and large content to let corporations increase the inequality in their pay scales and send jobs overseas while breaking unions. Only a strong government response can change that behavior.

And finally, only new initiatives—the kind the filibuster blocks—will make it possible for us to address the other great threat to our democracy, unlimited corporate spending on elections. There are legislative means by which we can could counter that dominance—laws that regulate TV ads and make them cheaper; laws that create public financing of campaigns; and laws that limit and overturn the Citizen’s United decision, which gave corporations practically an unlimited ability to spend their funds on election campaigns. However, the odds of enacting any of these proposals is radically reduced because of the filibuster.

Our democracy is threatened today more than at any time since the age of the Robber Barons in the late 19^th century. We need to start defending that democracy. The most important step we can take to preserve it is to begin reforming the filibuster, this week.