Article first published as Democrats Take up the Good Fight to Reform the Senate on Technorati.
With polls showing an 83% disapproval rating, few people would argue that the Congress isn’t broken. Fewer still would not assign a great deal of blame on a completely dysfunctional Senate. With more than 400 pieces of legislation passed by the House only to die in the Senate of the 111th Congress, the more “deliberative body” has truly become a haven for obstructionism. But that might all change if Senator Tom Udall (D-NM) succeeds in his attempt to reform the filibuster.
In response to a Senate minority that has utterly corrupted the use of the filibuster, Senator Udall, along with fellow Democratic Senators, Jeff Merkley (Ore.), Claire McCaskill (Mo.), and Michael Bennet (Colo.), are leading the way to bring back some form of integrity to this aged parliamentary procedure.
Not mentioned in the Constitution, the filibuster is the product of senatorial rule changes established in 1806 that removed the motion “to move the previous question” and effectively eliminated any ability to end debate on an issue and move to a vote. Yet, even once the potential for filibuster existed, it wasn’t until 1837 that the procedure was first used, and its use remained infrequent for decades.
In 1917, the Senate changed its rules again and created a means to end a filibuster; by invoking cloture, the motion to end debate would be subject to passage by a two-thirds majority vote. Under these rules, the filibuster remained a powerful yet seldom used maneuver that resulted in only 56 filings of cloture through the end of the 91st Congress in 1970.
But starting with the 92nd Congress, things began to change and cloture was filed 23 times during that Senate alone. With 44 filings in the subsequent Senate, it became clear that what was once a rare procedural maneuver was becoming a mainstay for the Senate minority. This led to another rule change in 1975 that redefined the super-majority needed to end a filibuster, setting it at three-fifths — the 60 votes required today.
While use of the filibuster had become more frequent, it wasn’t until the past two Congresses that use was turned to abuse. Cloture filings averaged only 36.4 for each Congress from 1971 through 1990, and started ramping up with the Republican minority of the 102nd Congress, but still averaged only 51.5 from 1971 through 2006. Starting in 2007, with the 110th Congress, complete and utter obstruction was introduced and the tyranny of the minority began.
Viewed historically as a means to ensure that major issues were given a full and fair hearing, the contemporary corruption of the filibuster process has led instead to complete obstruction and the inability of the Senate to conduct even the most routine business. The Republican minorities of the 110th and 111th Congress made the filibuster standard operating procedure, using the procedure to block anything and everything, with no other goal than to impede progress.
In total, there were an unprecedented 275 motions for cloture filed in response to the filibusters of the past two Republican minorities. That’s more filings than occurred during the first 67 years of the motion’s existence. Such absurd levels of obstruction have nothing to do with governing. As is evidenced by the many successful cloture votes that were followed by easy passage of the bill, the new SOP for the GOP is all about delay —about bringing government to a standstill. Why else would the extension to unemployment benefits in late 2009 that survived back-to-back filibusters be passed by the Senate without opposition, 98-0? Or what about the filibuster of Fourth Circuit nominee Barbara Keenan that was eventually broken with a cloture vote of 99-0?
Fortunately for the American people, the Republican minority’s rampant abuse of the filibuster has caused such frustration that the backlash may result in real reform. In a Dec. 18 letter to Majority Leader Reid that was signed by all Democratic senators remaining in the Congress that opens Jan. 5, the majority stated, “We believe the current abuse of the rules by the minority threatens the ability of the Senate to do the necessary work of the nation, and we urge you to take steps to bring these abuses of our rules to an end.”
Senators Udall and Merkley are promoting the use of the “constitutional option” to effect the changes they seek. Using this procedure, the Democrats will be able to change the rules of the Senate with a simple majority vote, but according to many experts, they can do so only on the first day of the new Congress. It’s true that some experts disagree with this assessment and suggest that the majority could effect change at a later date, but there’s little doubt that such a move would be filibustered, so Senator Udall is pushing for the change to occur on Jan. 5.
The reform package being circulated would not end the filibuster, or even change the cloture requirements for a three-fifths majority, but it does include several smart changes that promise to restore credibility to the process. First and foremost, the changes would put an end to the purely procedural threat to filibuster by requiring that 40 senators vote to invoke a filibuster. This would replace the present requirement that the majority leader file a cloture motion to overcome an anonymous objection to a motion to proceed. The package would also require a “standing filibuster” — in the form of Mr. Smith Goes to Washington, the filibustering senator would have to remain on the floor to sustain it.
Other changes being considered include: limiting filibusters to only one per bill — under present rules, many bills are filibustered multiple times, starting with the decision to begin debate, followed by another filibuster on each amendment, and followed by still another filibuster before a final vote; another proposal would shorten the time for debate once cloture is invoked, which is presently set to at least 30 hours; and although it’s not filibuster specific, there appears to be significant support for the elimination of the “secret hold,” a ridiculous practice that enables a single senator to block nominations and legislation — anonymously.
Whether or not any of these changes will come to pass remains to be seen. There’s no doubt that the Republicans will fight these proposals with everything they have, but fortunately, they have very little. The sole opposition argument is something to the effect of “you won’t like this when you’re in the minority.” Republican Senator, Lamar Alexander of Tennessee stated the opposition’s case most succinctly, “Even if Democrats were to change the rules, they will gain nothing except the prospect of retribution in two years while destroying the Senate.” Such rare honesty is to be commended, but it should not in any way temper the complete rejection of the notion that enabling the Senate to perform the duties for which it exists is somehow destructive to the institution.
Contemporary Democrats don’t have much credibility when it comes to standing up against Republican bluster. They are more prone to meet aggression with compromise. As always, the American people can help this situation by contacting their senators and urging their support for reform. They can also sign-on to help Fix the Senate Now. This is “Change We Need.” It’s the good fight for the Democrats, and if the unanimous signing of their letter is any sign, we just might have that rare set of circumstances that embolden people to do what’s right, instead of what’s easy.