Filibuster reform could fix our dysfunctional Senate
The filibuster is not in the Constitution or original senate rules.
of your empty threats. Last week, Senate Minority Leader Mitch McConnell warned that if Democrats overhauled the filibuster, Senate Republicans would be less inclined to work in bipartisan fashion.
Is that even possible? McConnell, after all, is the hyper-partisan tactician who, in pursuit of his declared goal of rendering President Barack Obama a one-term president, elevated legislative delay and obstruction to a dark political art.
It appears not to have occurred to the irony-impaired Kentucky senator that if Republicans had been genuinely inclined toward bipartisanship, there would be no need for filibuster reform. Instead, the fix-the-filibuster movement is gathering steam. Majority Leader Harry Reid, who opposed an overhaul in the last session, is a convert to the cause, and Obama threw his weight behind Reid’s efforts.
The increasing prospect that the Senate may reform the delaying tactic that has rendered the Senate a paralyzed polity has McConnell in a state of owly indignation. He’s accused Reid of preparing to violate Senate rules because Democrats may take advantage of a beginning-of-the-session opportunity to change the rules by a simple majority vote rather than the two-thirds tally that’s usually required.
The important question, however, is this: Will the proposed reforms render the Senate a more responsive, rational, and productive place? Here, meanwhile, is the best test of fairness: Are those reforms something Democrats would feel comfortable with if they were in the minority?
Reid hasn’t specified the full range of changes he will propose, but Democratic Sens. Jeff Merkley and Tom Udall, who are leading the filibuster-overhaul effort, say several proposals have widespread backing among Democrats.
One would reduce the sheer number of filibusters by eliminating the ability to filibuster motions to bring matters to the Senate floor for debate and motions to send legislation to House-Senate conference committees.
Senators would still be able to use the tactic once a measure reached the floor or returned from conference. But if a second reform requiring a so-called talking filibuster passes, filibusterers would actually have to speak.
Currently, a senator only needs to declare his or her intent to filibuster to freeze a matter until 60 senators vote to move it forward. That “virtual” filibuster lets senators delay legislation or nominations with little effort and few consequences. But under the talkingfilibuster reform, “you don’t get to kill
Maureen Dowd bills in the dark of night,” says Merkley. Rather, “you have to stand and make your case to the American people.” That would impose needed accountability because “those of you on the outside can make a judgment about whether that [filibustering] person is a hero or a bum,” adds Udall.
As part of that reform, when the filibusterers could no longer muster a speaker to take the floor, the filibuster would end, at which point the business under consideration could be moved forward by a majority vote.
Those changes all make good sense, though they should be paired with guarantees that the minority party can offer substantive, non-dilatory amendments. They hold the prospect of returning the filibuster to its one-time status as an available, but infrequently used, parliamentary tool.
Even that is more than was originally intended. Despite impressions to the contrary, the filibuster isn’t included in the Constitution and wasn’t in the original Senate rules. Instead, as political scientists Thomas Mann and Norman Ornstein write in their latest book, “It’s Even Worse Than It Looks,” the ability to filibuster slipped in accidentally, when a 19th century cleanup of Senate procedures eliminated the rule allowing a simple majority to bring an issue to a vote.
Once used only sparingly, to thwart legislation senators vehemently opposed, the filibuster has now become a routine tactic. Democrats certainly deserve some responsibility for abusing it during George W. Bush’s administration. Still, they look like pikers compared to the abuse under McConnell and his GOP troops during Obama’s presidency.
As Mann and Ornstein write, the filibuster has become a stealth weapon “which minority Republicans use not to highlight an important national issue, but to delay and obstruct quietly on nearly all matters, including routine and widely supported ones.”
And though it would probably be lost on McConnell, here’s the irony of his opposition to the fix-the-filibuster effort: By reducing opportunities for partisan obstruction, filibuster reform may actually encourage the kind of bipartisan engagement the minority leader now professes to value.