A New Year’s Resolution for the Senate: Fix the Filibuster

December 19, 2012
Guest Post

Diana Kasdan, Counsel, Brennan Center for Justice

Every senator needs to put “fix the filibuster” at the top of his or her New Year’s Resolution List. Specifically, they need to resolve to pursue serious rules reforms that can curb the exponential rate of obstruction in recent decades. And it must happen on January 3rd. Here are three reasons why:

1.      Congress is Broken and Senate Obstruction is Part of the Problem

The 112th Congress has had the lowest output of any since at least World War II. This stems from reasons well beyond divided control of chambers, which defines the current and incoming Congress. Control of the House and Senate was also divided from 1981 to 1987, yet Congress enacted an average of nearly 600 public laws during each two-year period, compared to barely 200 in the current session.

So what is causing this decline in productivity? One prime culprit is filibuster abuse. As a recent Brennan Center reportconfirms, longstanding procedural rules have become tools of obstruction allowing legislative minorities to impose a veto on nearly every order of Senate business. Even when addressing matters purely within its own control, the Senate is at a virtual standstill. The Senate has passed a record-low 2.8 percent of its own bills. At its peak efficiency in the 1950s, the Senate passed nearly 27 percent of its bills. And, on average, it has taken 188 days for the Senate to confirm a judicial nominee during the current Congress, creating 32 “judicial emergencies.” Only at the end of the congressional term in 1992 and 2010 have there been more judicial emergencies.

Moreover, the informal “handshake” dealstruck at the start of the 112th Congress to reduce filibuster abuse and foster bipartisan cooperation flopped. The pace of obstruction — on both sides of the aisle — only worsened. This race to the bottom can’t continue. It is time for the Senate to put its house in order.

2.      Americans Want the Senate to Fix the Filibuster

This year public approval of Congress hit a record low10 percent. Not once, but twice. In fact, since 2011, approval has never inched past 20 percent. It’s no surprise then that Americans expect more from their representatives and think the Senate should take a lead in turning things around.

Recent pollingfound voters overwhelming support changes to the Senate rules that cause gridlock. And they don’t want lip service, they expect meaningful reforms, like requiring filibustering senators to stay on the floor and talk about why they are blocking legislation.

The public view mirrors commonsense proposalschampioned by several senators leading the reform movement and supported by a diverse range of national groups.  Not only would a “talking filibuster” create greater public accountability, it would mean a single senator could not — as is the case now  simply prevent a vote with no more than a phone call to leadership. It is fair and reasonable to require members opposing a vote to carry the burden of maintaining the filibuster. Any lesser reforms would fall short of real change and leave the rules ripe for abuse. To repair the public’s dissatisfaction with Congress and clear the way for the Senate to get back to work, it must move forward with a substantial package of reforms.

3.      The Momentum and Window of Opportunity for Change is Now

A resolution to fix the filibuster deserves bipartisan support. But if Democrats buy into the idea that pursuing rules reform next Congress requires support from a minority party committed to obstruction, the opportunity for change will be lost.

On Jan. 3, the newly convened Senate can change its operating rules with the support of a simple majority.  Contrary to the suggestion of some, using this “constitutional option” will not cause a Senate meltdown. A recent letter sent by leading academics and scholarsto the Senate puts this issue to rest. The letter—which includes top conservative scholars Professor Charles Fried, President Reagan’s former solicitor general, and Michael McConnell, a former Bush-appointed federal judge—confirms that rules change by a simple majority of a newly convened Senate is constitutional and appropriate. It also shows that, historically, invoking the constitutional authority to reform the rules has led to bipartisan reform, not nuclear fallout.

That said, rules reform does not happen frequently, nor should it. However, this January it can, and must, happen. It is painfully evident that the existing filibuster rule does not work for the modern Senate. There is overwhelming public support for change. senators are championing substantial reforms. With this constellation in place, the upcoming start of a new Congress creates an historic opportunity. In the New Year, before bad habits can take hold again, fixing the filibuster should be the first step in revitalizing Congress so it can tackle the numerous challenges facing our nation in 2013 and beyond.