Rarely has the hypocrisy of both major parties been displayed more clearly than it was this week. The Democrats who pushed the hardest for the nuclear option were the same ones who wailed in 2005 that any attack on the filibuster would destroy America. And the stouthearted defenders of the filibuster in 2013 were the same Republicans who called their anti-filibuster proposal the “constitutional option” in 2005 and defended it as a moral and constitutional imperative. Neither side has any room to accuse the other of bad faith.
But that’s generally how it works. I’m guessing that very few members of the Senate have a strong opinion one way or the other about the filibuster per se. Their concerns tend to vacillate between two very different but important questions: “What is good for me today?” and “What will be good for me tomorrow?” Unfortunately, where the filibuster is concerned, the answers are often not the same.
But actual people care a great deal about the filibuster—a Senate rule that emerged more or less by accident in the 19th century as a by-product of the Senate debate rules. Recent polling shows that 81% of Americans think that the Senate “does not deal with important issues . . . in a timely manner,” and, by a 3-1 margin, most of us back some kind of filibuster reform.
The trick, of course, is to break the logjam without completely erasing the voice of the minority. Simply eliminating the filibuster would eliminate one of the few mechanisms that a minority party has to represent its constituency. But there are other steps that we could take. I humbly offer two:
Make Them Talk
Nobody admires Jimmy Stewart in “Mr. Smith Goes to Washington” more than I do, and, as Wendy Davis recently demonstrated in the Texas Senate, a committed member of the minority willing to talk for thirteen hours without eating or going to the bathroom has some chance at changing the world. One of the most interesting recent proposals–which gained some traction in the Senate last year before fizzling–is simply the requirement that, if the minority wants to mount a filibuster, the majority should let them mount a filibuster—and make them talk.
This need not be a solo marathon effort. A minority of 41 Senators—the number now required to sustain a filibuster threat—is perfectly capable of holding the floor for as long as they want to. As it stands now, though, the minority can prevent debate simply by threatening to shut down the Senate’s business indefinitely, knowing that they will never have to accept the responsibility for actually doing so. If they actually had to read the phone book on C-SPAN while all of their constituents watched, they would probably use the tactic more sparingly. Or, at the very least, they would have to pay the legitimate price for the power they wield.
Qui Tacet Consentire
By a margin of 75%-17%, Americans want up or down votes on judicial and other nominees. To do this, it is not necessary to change the filibuster at all. All it would take is an application of one of the oldest principles in common law: “silence gives consent.”
Here’s how it would work: the president would submit a nominee, and the Senate would have a certain amount of time to take it up. They could debate all they want, support it, reject it, or whatever else they want to do, but, if after the specified time they had not rejected the nomination, it would go into effect. This way, they could filibuster to their senatorial hearts’ content, but, if they did not formally reject the nomination with an up or down vote, it would go into effect.
Either one these proposals would preserve the voice of the minority, while, at the same time, making it possible for the Senate to perform its constitutional role of doing stuff. And there is no Constitutional reason not to change the rules. All the Constitution says is that the houses of Congress are allowed to make their own rules and chose their own leaders. It is up to the Senate to adopt rules that do not actually prevent them from governing the country.
And it is up to us to hold them accountable when they don’t.