The Filibuster and U.S. Senate: How opaque, back-room dealing is subverting democracy

By Robert Mann

Is the Senate filibuster, as we know it, about to end?

A class photo of the 110th United States Senate.

A class photo of the 110th United States Senate. (Photo credit: Wikipedia)

Possibly. Politico and other news organizations are reporting that a deal among some leading senators is in the works that would significantly reform how the Senate begins and ends debate on legislation. As Politico reporters Seung Min Kim and Burgess Everett report:

The plan’s main changes would allow the majority leader to skirt the filibuster on motions to proceed while guaranteeing two amendments for the minority party or allow the Senate to move on to bills more quickly once procedural hurdles are cleared. It would also make it easier to go to conference with the House and move some presidential nominations through the Senate.

The proposal, laid out privately to colleagues during party lunches Friday afternoon, doesn’t go as far as that pushed by a younger coalition of senators. But it is an effort to build a compromise while preserving some key minority rights that distinguish the Senate from the House, lawmakers said.

Politico also reports Majority Leader Harry Reid’s main demands,

were to do away with filibusters on beginning debate and preventing House-Senate conference committees from convening. Senators could still filibuster in any number of other situations, but Reid said he was open to one proposal that has picked up steam among liberals and reform advocates: A so-called “talking filibuster,” which would require senators to actually carry out filibusters a la “Mr. Smith Goes to Washington.”

While I’m skeptical about the usefulness of the “talking filibuster” (read my recent post on that here), it may serve to shine a bit more light on the dark recesses of the Senate in which a lone, often-anonymous senator can prevent debate or a vote on a bill or nomination just by signalling that he or she plans to filibuster. The key word in that previous sentence is “plans,” for the Senate does not require its members to actually stand and talk to prevent a vote.

While it’s not clear that the Senate will actually take steps to reform the filibuster, it’s growing increasingly clear that requiring 60 votes to pass legislation in the Senate is simply not constitutional.  Earlier this year, “Common Cause” filed suit in D.C. federal court, seeking to declare the Senate filibuster a violation of the Constitution. (The suit was recently dismissed.)

“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.

James Stewart from the movie “Mr. Smith Goes to Washington.”

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. Mr. Smith is Mr. Myth.

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 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, according to the Huffington Post, so far in the current 112th Congress, there have been almost 400.

Congressional Filibuster Record by Party 1992 ...

Congressional Filibuster Record by Party 1992 – 2011 (Photo credit: Cory M. Grenier)

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, back-room 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 week, the Senate should immediately change its rules to reform the filibuster. If senators can’t muster the courage to abolish it, they should at least restore filibuster to its rightful place as an occasional tool, not the permanent, undemocratic roadblock to the business of the nation that it’s become.

As Garrett Epps wrote recently in The Atlantic, “A legislative body that cannot bring itself even to vote on 400 bills really is not a legislative body at all — it is a graveyard, where self-government staggers off to die.”

(Note: portions of this post were taken from a previous post, published in May.)

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