The Pirating Senate

January 4, 2011
Guest Post

By Bob Edgar, president and CEO of Common Cause and a former member of the United States House of Representatives (1975-1987 - Seventh District, Pennsylvania).
In America's colonial days, the Spaniards who vied with England and France for control of the New World coined a word - "filibusteros" -- for the pirates who sacked ships and looted settlements along the Atlantic seaboard.

Today's American filibusteros wear $500 suits and carry BlackBerries, not cutlasses, on their belts. We call them senators. The piracy continues however, now directed at our own government and legalized, even enshrined by our political elites.

In the just-concluded 111th Congress, Senate filibusteros blocked or needlessly delayed action on more than 130 bills and nominations for the federal bench or executive offices. They flouted the principle of majority rule, replacing it with a tyranny of the minority, and insisted with straight faces that they were acting in the best traditions of American democracy.

Aargh!

The fact is that the modern filibuster, through which one senator or a handful can kill legislation by talking, talking, talking so long that the majority gives up and moves on to something else, has never been part of the Constitution or any law. It's not even in the original rules of the Senate.

It's really just an accident.

America's founders saw the Senate as a place for careful, thorough deliberation, in contrast to the more mercurial House of Representatives. George Washington famously described the Senate as the saucer where the passions of the day were poured out like scalded coffee to cool.

The first senators considered themselves gentlemen and were loath to end debates until everyone had a chance to be heard. Still, the original Senate rules included a mechanism to force action by a simple majority vote.

It was rarely used. As he left the vice-presidency in 1805, Aaron Burr noted that he'd presided over only one vote to end debate during his four years in office. The following year, senators decided that the rule permitting a motion to end debate was unneeded and eliminated it. The move enabled a single senator to block action by the entire body.

Even so, the first real filibuster didn't come for another 35 years, in 1841, and there were only 32 more in 76 years after that.

In 1917, after a filibuster blocked President Woodrow Wilson's bill to arm American merchant ships threatened by the German navy, the Senate finally agreed to permit limits on debate, changing the rules to allow a cutoff, or cloture, on the vote of a two-thirds majority. The threshold was lowered to a three-fifths majority, now 60 senators, in 1975.

Not until the last quarter of the 20th century did filibusters become a popular parliamentary tactic. Democrats and Republicans alike now characterize them as a critical check on the excesses of the majority, a tool that forces both sides to compromise so that legislation can move forward.

It sounds good, but in today's hyper-partisan Senate it just isn't true. Modern filibusters actually stifle debate rather than extend it, block compromise rather than encourage it. Here's how.

Everything the Senate does, even the decision to consider a particular bill on a particular day, requires either a vote or the unanimous consent of all members. That means the decision can be filibustered.

In September, Republicans opposed to President Obama's plan to let gays serve openly in the military filibustered a motion to begin debate on legislation ending the "Don't Ask, Don't Tell" policy. A clear majority favored repeal of "Don't Ask," but an actual debate and action was delayed for weeks until they could round up 60 votes. The only debate was over debating itself.

Some legislation is blocked just by the threat of a filibuster. Consideration of the START treaty, an arms control agreement with Russia endorsed by secretaries of state from Henry Kissinger through Hillary Clinton was put off for months because of a filibuster threat by a single senator, Arizona Republican John Kyl. It ultimately was ratified with 71 votes.

"The democratic principle of majority rule does not apply in the United States Senate," Atlanta lawyer Emmet J. Bondurant observed in a paper prepared for Common Cause earlier this year. "Majority rule has been replaced in the Senate by minority rule."

The filibuster, at least as currently practiced, is unconstitutional and un-American. When they convene to open the 112th Congress, senators should reform their rules so a small minority cannot block the will of the majority.