Support Mounts for Filibuster Reform; Bipartisan Group of Law Profs. Says Senate Can Change Filibuster

December 13, 2012

by Jeremy Leaming

With Republicans seemingly hell-bent on tossing the country over the so-called fiscal cliff, showing no signs of agreeing to tax hikes on the nation’s superrich, and continuing their strategy of obstructionism polling shows that a majority of Americans support filibuster reform.

Sen. Minority Leader Mitch McConnell (R-K.Y.) embraced obstructionism during President Obama’s first term, saying his party’s top priority was to ensure Obama did not serve a second one. McConnell, however, is still set on obstructionism and not surprisingly arguing that the Constitution forbids the Senate from altering its procedures by majority vote.

A bipartisan group of law professors – including former Reagan solicitor general Charles Fried and a former conservative federal judge Michael W. McConnell – in a Dec. 12 letter to senators says McConnell is wrong. (The letter can be read here – thanks to the Brennan Center For Justice).

“When a newly-elected Congress convenes,” the letter states, “the newly-constituted Senate, like the newly-elected House, can invoke its constitutional rulemaking authority to make changes to the Standing Rules. At that time, a majority of the new Senate can choose to reject or amend an existing rule.”

McConnell and supporters of the current filibuster, which essentially requires a supermajority – 60 votes – to allow consideration of legislation and judicial and executive nominations, argue that blunting that tool will make the chamber less deliberative. The problem is that since the Democrats have been in control of the Senate, McConnell and his party has threated or employed the filibuster well over three hundred times, essentially requiring a supermajority to get anything done. Not only has the abuse of the filibuster resulted in a crisis on the federal bench – there are more than 80 current vacancies – it has halted consideration of immigration reform measures, pay equity measures and a jobs bill.

Sen. Reid, who has been slow to embrace filibuster reform, has had enough with McConnell’s destructive strategy and now embraces changes to the filibuster proposed by Sens. Tom Udall (D-N.M.) and Jeff Merkley (D-Ore.). In part the senators plan would make it more difficult to sustain a filibuster and more transparent. The Daily Beast blogger Andrew Sullivan writes that “true conservatives should be outraged at Republicans,” in part, because of the “massive, unprecedented, destructive and radical use of a non-filibuster filibuster to make the Senate unable to pass anything significant without 60 votes, rather than 50 (or 51 with the veep). This is not conservative. It’s a blatant attack on tradition in defense of pure partisanship.”

Even the conservative Federalist Society has argued against abusing the filibuster, noting it should not be used to block judicial nominations. The Federalist Society also argued that the Senate can change the filibuster. Citing Supreme Court precedent a Federalist Society paper authored by a group of attorneys, said it has been long-settled that the “Constitution empowers each house of Congress to determine its rules of proceedings ….”

McConnell and his party in both chambers have revealed time and again that they are not interested in compromise. They are obstinate. They are willing to hurt the nation’s economy, and the middle class all to ensure that their party remains devoted to small interests, such as protecting unaffordable tax breaks for the nation’s wealthiest. The Democrats have no choice but to drag the Republicans, kicking and screaming, no doubt, back to sanity. Blunting the filibuster will not do the trick, but it’s a long overdue start.

[image via Gage Skidmore]