February 16, 2010

Private: Fixing the Filibuster

filibuster, Sen. Tom Harkin

By Senator Tom Harkin (D-Iowa). Senator Harkin (pictured) was elected to the U.S. House of Representatives in 1974, where he served ten years before being elected to the Senate.

Fifteen months ago, a sizable majority of voters sent Democrats to Washington to implement real change and reform. Largely because of the filibuster, their hopes for change have been frustrated. Instead of progress, the public sees nothing but gridlock.

In the 71 years since Hollywood filmed "Mr. Smith Goes to Washington," the aim of the filibuster has been turned completely upside down. Seven decades ago, Jimmy Stewart, "Senator Smith," was the little guy using the filibuster to battle the special interests. Today, it is the special interests that are using the filibuster to kill legislation that would benefit the little guy.

The filibuster, which was once a dramatic challenge to majority rule only used in extraordinary circumstances, is now used or threatened on virtually every measure and every nominee. For example, last December Republicans filibustered a motion to proceed to a bill to extend unemployment compensation. After delaying Senate business for a month, the bill passed 98-0. In other words, Republicans filibustered a bill they fully intended to support simply to stall business in the Senate.

Similarly, Senate Republicans filibustered a bill that funded key agriculture, conservation and nutrition programs. That bill passed 80-17. They filibustered the Credit Card Holders Bill of Rights, which passed 90-5. And they even filibustered the Fraud Enforcement and Recovery Act, which passed 92-4.

Americans are so frustrated by the parliamentary delays that in a recent poll, some 53 percent of Iowans and 50 percent of Americans said they think the filibuster should be abolished.

A supermajority of 60 votes should not be needed to enact virtually any piece of legislation. In fact, the Framers of the Constitution were very clear about circumstances where a supermajority is required. There are only five: Ratification of a treaty, override of a veto, votes of impeachment, passage of a Constitutional amendment, and the expulsion of a member.

James Madison specifically rejected the idea that more than a majority would be needed for decisions. Responding to anti-Federalist arguments that the Constitution should have required more than a majority, Madison argued that such rules would lead to minority rule, something inconsistent with fundamental republican principles. As he wrote in Federalist No. 58:

That some advantages might have resulted from such a precaution, cannot be denied. It might have been an additional shield to some particular interests, and another obstacle generally to hasty and partial measures. But these considerations are outweighed by the inconveniences in the opposite scale. In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. It would no longer the majority that would rule; the power would be transferred to the minority.

Madison would be appalled by the current abuse of the filibuster to impose minority rule.

Proponents of the filibuster regularly quote the story of George Washington's description of the Senate to Thomas Jefferson. Jefferson had returned from France and was breakfasting with Washington. Jefferson asked Washington why he agreed to have a Senate. Washington asked "Why did you just now pour that coffee into your saucer before drinking it?" "To cool it," said Jefferson; "my throat is not made of brass." "Even so," said Washington, "we pour our legislation into the Senatorial saucer to cool it."

As one author recently noted, however, the increasing use of the filibuster has converted the Senate from the "saucer" George Washington intended, into a "deep freeze."

Last Thursday, I introduced legislation to amend the Standing Rules of the Senate to permit a decreasing majority of Senators to invoke cloture on a given matter. On the first cloture vote, 60 votes would be needed to end debate. If the motion does not get 60 votes, a Senator can file another cloture motion and two days later have another vote; that vote would require 57 votes to end debate. If cloture is not obtained, a Senator can file another cloture motion and wait two more days; in that vote, 54 votes would be required to end debate. If cloture is still not obtained, a Senator could file one more cloture motion, wait 2 more days, and - at that point - just 51 votes would be needed to move to the merits of the bill.

Let me be clear, this proposal has absolutely nothing to do with limiting minority rights, but ensuring proper deliberation without grinding the Senate to a halt, as too regularly happens today.

It's time to restore the best traditions of the United States Senate, a legislative body committed to debate and deliberation, but also one guided by our Founders' bedrock democratic principles of majority rule.

[image via The National Academy of Sciences]

Separation of Powers and Federalism