Mr. Smith is Dead: The U.S. Senate’s Use and (Mostly) Abuse of the Filibuster

The liberal advocacy group “Common Cause” filed suit in DC federal court last week to overturn the U.S. Senate’s use of the filibuster to stop passage of legislation favored by a majority of that body.

“While the Senate can set its own rules, they can’t be unconstitutional,” said Common Cause President Bob Edgar, who is also a former Democratic U.S. representative from Pennsylvania. “This is an unconstitutional provision. A minority of senators representing a minority of the population of the nation can in fact rule with the current system.”

Edgar is correct. The filibuster is now grossly abused and that undermines our democracy.

The word “filibuster” is often romanticized in the American political lexicon. It conjures the image of a lonely, fictional Mr. Smith holding forth unto exhaustion against the tyranny of the majority, and, in the process, single-handedly defeating a nefarious bill that threatens the Republic. Even in the Senate, lawmakers seem wedded to the misguided notion that Senate filibusters were born of the Founding Fathers’ desire to use the Upper Body to cool the passions of the House and, by extension, the nation’s majority.

But history doesn’t support that image.

The framers of our constitution never intended to grant so much stopping power to the Senate minority. James Madison, in fact, completely rejected the notion that a supermajority ought to be required in Congress to prevent “hasty and partial measures.” In the beginning, at least, Madison’s view prevailed. For the first 19 years of its existence, the Senate operated by rules that ended debate by simple majority.

In 1806, however, the Senate eliminated that rule – not because it favored the filibuster, but because senators deemed the rule unnecessary. After all, these senators had never before experienced a filibuster, and would not until the late 1830s. Even after it became established tradition, the filibuster was rarely used until late in the 20th century.

I spent several years researching two books about the struggle in the Senate to pass civil rights legislation during the 1950s and 1960s. Among the important lessons I learned is that the filibuster needlessly delayed and denied basic human rights for women and African-Americans by at least a decade.

For too many years, while a clear majority of Americans supported civil rights legislation, a small minority of southern senators delayed consideration of what became the most important social legislation of the 20th century.

That was a disgrace. But unbelievably, in today’s Senate the filibuster has become even more pernicious. One must simply look at the numbers: from 1917 – when the Senate adopted a cloture rule to allow for ending filibusters – through 1970, there was a grand a total of 56 filibusters. In 2006-2008, the 110th Congress, there were 139 filibusters; in 2008-10, the 111th Congress, 137; and, so far in the current 112th Congress, there have been 88.

And these aren’t your grandmother’s filibusters – today’s “procedural filibuster” is more the threat of a filibuster against a bill; if the majority fails to muster the 60 votes necessary for cloture, the Senate cannot consider the legislation. In contrast to the image of an impassioned Jimmy Stewart making his case on the Senate floor, today’s actions usually take place behind closed doors and out of the watchful and accountable eye of the public.

In practice, this means the minority can prevent a vote on any measure it opposes simply by threatening a filibuster.

As historian Jean Edward Smith noted in The New York Times in 2009, this is a case of “minority tyranny” in which “the senators representing the 24 million people who live in the 21 least populous states – a little more than 11% of the nation’s population – [are allowed] to nullify the wishes of the representatives of the remaining 88% of Americans.”

Madison and the other Founding Fathers strongly favored checks and balances. Madison once famously observed, “In Republics, the great danger is that the majority may not sufficiently respect the rights of the minority.”

Of course, this is the usual rationale for requiring a supermajority to end a filibuster – the minority must be heard. But today’s Senate is not what our founders envisioned. Much more than “protecting” the minority, filibusters now prevent the majority from acting at all.

The question, then, is not whether the Senate sufficiently respects the rights of the minority; it’s whether the Senate sufficiently respects the rights of the majority. It’s whether we believe that senators representing a small fraction of the American public should be allowed to consistently thwart the public will and prevent open debate and accountable voting.

Too often, Americans who strongly support today’s important legislation, or who simply want important issues addressed in Congress, are told that antiquated rules of procedure, created by accident in 1806 and never enumerated in the Constitution, must take precedence over the earnest desires of the American people. Meaningless tradition trumps action.

Opaque backroom dealing trumps transparent, productive debate.

If the Senate’s leaders (especially the Republicans leaders who are now abusing the filibuster) are dedicated to preserving that kind of Senate, they at least ought to have the courage to tell Americans the truth: It’s not the majority’s will that prevails in the Senate; it’s the minority’s.

When the new Congress convenes next January — whether under a Republican or Democratic majority — the Senate should explore rules reforms to encourage transparency and to ensure that the filibuster is restored to its rightful place in the Senate – becoming more of an occasional tool, than a permanent roadblock.

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