Apart from the movie, the filibuster is constitutionally ordained, isn’t it? Well, no. When the Senators were all raptly listening to the reading of the U.S. Constitution last Thursday, they might have been reminded that Constitution does not contemplate the filibuster in any way, directly or indirectly. It is simply one of the rules of the Senate [Scroll down to “Q139”]
It is a word that comes from the Spanish word for "freebooter," which means "pirate." The origin seems to be that a person who filibusters is plundering the time and focus of a deliberative body, like a legislature. Specifically, in the U.S. Senate, a filibuster is used by a single Senator or group of Senators to stop or delay action on a piece of legislation. It has long been the tradition of the Senate that debate may not be stopped unless those taking up the debate allow it to be stopped. In other words, once a Senator has the floor, he or she may continue to talk forever. This rule goes back to the very beginnings of the Senate.The Constitution may not have ordained the filibuster but it clearly provides authority for the House and Senate set their own rules.
The Constitution allows each house of Congress to set its own rules. Early on, both houses had unlimited debate provisions. The House of Representatives, however, as a much larger body, found this rule unworkable and rules to limit debate came into effect. The Senate, until recently, never created such a rule. The term for the use of unlimited debate as a legislative tactic became known as a filibuster in the 1850's. The first attack on the filibuster came in 1841, by no lesser a figure than Henry Clay. It survived, though, until 1917, when the Senate adopted a rule allowing a filibuster to be stopped by a two-thirds vote. Such a vote is known as "cloture." Cloture ended the ability of a single Senator to hold up Senate business, but since a two-thirds vote can be difficult to get, it certainly did not stop the filibuster.I am not opposed to the filibuster; I believe it to be an important tool for ensuring that a minority of senators cannot be steamrollered into silence. I also believe it was used to good effect by Democrats in preventing bad legislation and judicial appointments under Republican-dominated Congresses.
But the filibuster cries out for reform. Its use has increased in recent years, but none to compare with Republicans in the 110th and 111th Congresses (2007-2010).
So we shouldn’t be surprised that every returning Democratic Senator signed a letter demanding an end to the almost automatic way the filibuster has been used in recent years. By simply raising an anonymous objection, senators can trigger a 60-vote supermajority for virtually every piece of legislation. The time has come to make senators work for their filibusters, and justify them to the public.
Critics will say that it is self-serving for Democrats to propose these reforms now, when they face a larger and more restive Republican minority. The facts of the growing procedural abuse are clearly on the Democrats’ side. In the last two Congressional terms, Republicans have brought 275 filibusters that Democrats have been forced to try to break. That is by far the highest number in Congressional history and more than twice the amount in the previous two terms.
These filibusters are the reason there was no budget passed this year, and why as many as 125 nominees to executive branch positions and 48 judicial nominations were never brought to a vote. Filibusters preserved the tax cuts for the rich. Even bipartisan measures like the food safety bill are routinely filibustered and delayed.
The key is to find a way to ensure that any minority party — and the Democrats could find themselves there again — has leverage in the Senate without grinding every bill to an automatic halt. I believe the most thoughtful proposal to do so has been developed by Senator Jeff Merkley of Oregon, along with Tom Udall of New Mexico and a few other freshmen. It would make these major changes:
NO LAZY FILIBUSTERS At least 10 senators would have to file a filibuster petition, and members would have to speak continuously on the floor to keep the filibuster going. To ensure the seriousness of the attempt, the requirements would grow each day: five senators would have to hold the floor for the first day, 10 the second day, etc. Those conducting the filibuster would thus have to make their case on camera. (A cloture vote of 60 senators would still be required to break the blockade.)I don’t know about you, but I like the idea of a Senator having to stand up long enough to break into a sweat and get uncomfortable, like Senator Smith did in the movie. If you’re going to obstruct the legislative proceedings, it seems to me that it ought to cost you something. But back to the Senators’ proposal:
FEWER BITES OF THE APPLE Republicans now routinely filibuster not only the final vote on a bill, but the initial motion to even debate it, as well as amendments and votes on conference committees. Breaking each of these filibusters adds days or weeks to every bill. The plan would limit filibusters to the actual passage of a bill.Changing these rules could be done by a simple majority of senators, but only on the first legislative day of the session, which is January 24th. Republicans have said that ramming through such a measure would reduce what little comity remains in the chamber, never mind that there is great public support for filibuster reform. Although negotiations are going on, it remains to be seen whether reform this reform effort will have any bi-partisan support.
MINORITY AMENDMENTS Harry Reid, the majority leader, frequently prevents Republicans from offering amendments because he fears they will lead to more opportunities to filibuster. Republicans say they mount filibusters because they are precluded from offering amendments. This situation would be resolved by allowing a fixed number of amendments from each side on a bill, followed by a fixed amount of debate on each one.
Should the Democrats go it alone on January 24? I believe it is time to end the abuse of an important legislative procedure. I’d like to know what you think, but it’s far more important to let your Senators know. Now is the time! Don’t know how to contact yours? Click here to find your Senators and how you can contact them by phone, email, or snail mail. Make “Mr. Smith” proud and give them a call.