Fixing the Filibuster
When people think of the filibuster, many recall the classic film Mr. Smith Goes to Washington. But Senator Smith—the heroic legislator played by Jimmy Stewart—was the little guy using the filibuster to stop the powerful special interests. Today, that has been turned upside down. It is the special interests using the filibuster to stop legislation that would benefit the little guy.
For example, despite record-high persistent unemployment, Republicans have repeatedly used the filibuster to kill attempts to extend benefits to the long-term jobless. Meanwhile, real and threatened filibusters have prevented Democrats from addressing urgent national priorities, ranging from climate change to immigration reform to energy transformation.
The filibuster rule has become an absurd and destructive anachronism. As few as forty-one senators, potentially representing less than 15 percent of the population, have the power to block any bill, amendment or nominee. In other words, America has become a representative democracy without majority rule. Democrats hold large majorities in both houses of Congress and have a responsibility to govern, but they lack the power to pass critical legislation or confirm nominees. The party that was resoundingly repudiated at the polls in 2008 retains the power to prevent the majority from governing.
Historically, the filibuster was an extraordinary tool used only in the rarest of instances. In 1939, the year Mr. Smith was filmed, there was not a single filibuster in the Senate. In the 1950s, there was an average of one per two-year Congressional session. By contrast, during the last Congress (2007–08), 139 bills were filibustered. Already in the current Congress, since January 2009, there have been more than 100 filibusters.
The Republican abuse of the filibuster is routine and increasingly reckless. As political scientist Norman Ornstein wrote in an article, "Our Broken Senate," in 2008, "The expanded use of formal rules on Capitol Hill is unprecedented and is bringing government to its knees."
The Senate cannot continue down this path of obstruction, paralysis and de facto minority rule. That is why I have introduced a bill to change the Standing Rules of the Senate to reform the cloture procedure.
Currently, it takes sixty votes to "invoke cloture"—in other words, to end debate on a legislative measure and bring it to a vote. My bill would permit a decreasing number of senators to invoke cloture on a given measure. On the first cloture attempt, sixty votes would be required. But, over a period of days or weeks, the number of votes required would fall to a simple majority of fifty-one senators.
Under my proposal, the minority would have ample opportunity to debate an issue, try to shift public opinion and attempt to persuade their colleagues. However, the minority would no longer have the power to brazenly block the majority from legislating. In fact, my proposal would encourage a more robust spirit of compromise. Right now, there is no incentive for the minority to compromise; they know they have the power to block legislation. But if they know that at the end of the day a bill is subject to majority vote, they will be more willing to come to the table and negotiate seriously.
In this way, we can restore the Senate to the legislative body envisioned by the founders, where the minority can slow things down but cannot obstruct legislation from coming to a vote. George Washington famously told Thomas Jefferson that the Senate's role is to "cool" legislation created in the House, just as a saucer is used to cool hot tea. This role would be preserved.
I am offering this reform proposal with clean hands, having introduced the exact same bill in 1995, when Democrats were in the minority in the Senate. This legislation is not about one party or the other gaining advantage. It is about the Senate, as an institution, operating more fairly, effectively and small-d democratically.
James Madison and his colleagues at the Constitutional Convention rejected a requirement of a supermajority vote to pass legislation. As Alexander Hamilton explained, a supermajority requirement would mean that a small minority could "destroy the energy of government." Government would be, in Hamilton's words, subject to the "caprice or artifices of an insignificant, turbulent, or corrupt junta." I would not call the Republican minority in the Senate a "turbulent or corrupt junta," but Hamilton's point is well taken.
At issue is a fundamental principle of our democracy—rule of the majority in a legislative body. I do not see how we can govern a twenty-first-century superpower when a minority of just forty-one senators can dictate action—or inaction—not just to the majority of senators but to a majority of the American people. This is not democratic. Certainly, it is not the kind of democracy our founders envisioned.