Curing The U.S. Senate of Dysfunction: Limit The Filibuster

The putative justification for the use of the filibuster in the U.S. Senate is to protect the rights of the legislative minority and to ensure that legislative proposals, especially critical or controversial ones, receive sufficient scrutiny before they are adopted—or rejected if the filibuster is sustained and able to withstand a cloture vote (at least 60 votes, three-fifths of the Senate membership). That is the theory.

But, the filibuster also functions in more nefarious ways, such as Strom Thurmond’s unsuccessful, but record-length filibuster against a civil rights bill. More recently, the filibuster — or the threat of same — has been used by the minority as a tactic primarily to obstruct the business of the Senate.

The public, when it pays attention to this esoteric issue at all, is led to believe this abuse of the filibuster is necessary for one of the more salutary reasons noted above, but in reality there is something far more Machiavellian going on.

It used to be one tactic that Senators could resort to in the policy-making process; now it is, for the minority party, its legislative agenda—which is to say that obstruction is practically the sum and substance of the minority party’s agenda in the Senate.

According to the bipartisan group, No Labels, in the first 50 years of its existence, the filibuster was used only 35 times. In the last couple of years, it has been used over 100 times.

Notwithstanding assertions by its supporters to the contrary, the filibuster per se is not a constitutionally grounded Senate tradition. Thus, the indiscriminate and nearly perpetual use of the tactic simply to obstruct is certainly not a constitutional legacy either.

Indeed, as Norman Ornstein, resident scholar at the conservative American Enterprise Institute, observed in testimony before the Senate Rules Committee, “…unlimited debate in the Senate was in many ways a historical accident, not an objective of the Framers.”

It evolved when the Senate abolished its previous question rule in the early 1800s, a rule which allowed the majority to cut off debate and bring a pending bill up for a vote.  Some proponents of the filibuster, in an effort to link it with whatever is deemed venerable about the Senate, argue that the filibuster is an essential feature of the “world’s greatest deliberative body.”

However, if the Senate is an exemplar of what a great deliberative body is and how one should function, the state of deliberation in legislative bodies had reached its nadir.

Most of what passes for debate in the Senate amounts to a senator standing at her desk, with few or no other members in the chamber, reading from a text prepared by a staff member. Very seldom is there any inspiring oratory of the “Mr. Smith Goes to Washington” genre.

Legislation is not the only thing that is subject to this obstructive filibuster tactic. Sometimes procedural motions (motions simply to bring a bill up for discussion, not to vote on its adoption) are filibustered.

Presidential appointments to Cabinet positions and other administrative agencies are almost routinely filibustered these days. So are federal judicial appointments, even for judicial districts and circuits were judicial emergencies have been declared.

Interestingly enough, on some appointments and legislation, when rare moments of comity breakout and a vote is held, some of the very senators who had supported a filibuster on an appointment or a piece of legislation reverse course and vote in favor of what they were previously trying to kill via filibuster.

This indicates not so much a change of heart on the appointment or legislation as it calls into question the motives of the minority in mounting a filibuster in the first place. Motives are important in determining the legitimacy of, and the genuine need for, the filibuster tactic.

If the decision were mine alone, I would abolish the filibuster.

However, the Senate—both Republicans and Democrats—may not be ready to go that far; after all, the Democrats will be able to use the filibuster as a weapon in the same fashion as the GOP does now the next time they are in the minority, which most certainly will happen at some point in the future.

Thus, I strongly support a change in Senate rules to require any senator wishing to kill a piece of legislation via a filibuster to obtain and hold the floor—to conduct, as the group No Labels suggests, “a real, not a virtual, filibuster.” This is the very least that needs to be done.

The second No Labels suggestion that needs to be implemented in Senate rules is a ban on filibusters on motions to proceed. A motion to proceed is simply a motion to bring a bill to the floor for debate. These two rules changes will leave the filibuster in place, but will effectively end its use as a tactic to merely obstruct the business of the Senate.

A third change that needs to take place in the rules, if the filibuster is to be maintained as a tactic under any form, is a prohibition on filibustering presidential administrative and judicial nominations. Such a change would not in any way impinge upon the constitutional duty and discretion imposed on the Senate by the Constitution’s “advice and consent” clause.

In fact, it may bring that process, absent the filibuster, into closer alignment with expectations (original intent) of the Framers with respect to the substantive meaning of the clause. This change would not guarantee the accession of any presidential appointment, but it would ensure that each nominee receives an up or down vote with the nominee who obtains the votes of a majority of senators taking office.

A ban on the filibuster with respect to these appointments would neither diminish a Senator’s ability to offer advice nor restrict her ability to withhold consent.  It would require senators to confront the nominations head on, which would seem a reasonable thing to expect of them.

These changes alone will not cure the Senate of its current dysfunctional state, but they are a good place to start, because the permanent filibuster is a significant contributor to that dysfunction. Majority rule is a fair basis on which to ground the Senate’s decision-making, unless the Constitution directs a super-majority vote is needed.

As Abraham Lincoln noted in his First Inaugural Address: “Unanimity is impossible; the rule of a minority, as a permanent arrangement, is wholly inadmissible; so that, rejecting the majority principle, anarchy and despotism in some form is all that is left.”

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