Senator Bernie Sanders, I-Vermont. (AP Photo/Rich Pedroncelli)
"If you haven't got men who have learned to tell human rights from a punch in the nose..."
—Mr. Smith Goes to Washington, 1939
The filibuster should not be eliminated.
It should be restored.
This is the great takeaway from the muddled debate over how to restore a measure of functionality to the US Senate.
For the past four years the Senate has made a mockery of the concept of majority rule. Though Democrats have held a clear majority in the chamber, they have been blocked at almost every turn by Republicans who have used what is referred to as the "filibuster" to prevent consideration of legislation, nominations and just about everything else the President Obama and the Democrats dare to propose.
But the Republicans have not used the filibuster as Americans recognize it.
Rather they have used a filibuster fantasy to impose the will of the minority on the majority.
The filibuster has no constitutional or statutory grounding. It is established and defined by Senate rules.
Historically, the filibuster existed as a protection against the silencing of the minority. Under the rules of the Senate, a member or group of members who did not have the votes to prevent approval of a piece of legislation could demand to be heard in opposition. Ideally, the traditional theory went, this avenue of dissent could prevent a rush to judgment.
But, in recent years, the filibuster has not been used to raise voices of dissent. Instead, it has been used to block votes on critical pieces of legislation, to make it harder for the president to advance even the most popular proposals and to undermine the basic premises of the principle of advice and consent.
What to do? Bring back the filibuster as it has historically been understood.
This appears to be what Senate Majority Leader Harry Reid, D-Nevada, is preparing to propose. Noting that there have been 386 Republican-led filibusters during his almost six years as majority leader, Reid said Monday: “We can’t continue like this.”
Speaking of the Republicans, the Democratic leader says, “They have made it an almost impossible task to get things done."
Reid, whose incoming caucus is larger and more supportive of filibuster reform than the one he led in the last Senate, has the option of asking senators to set new rules at the opening of the coming session. And indications are that he is preparing to do just that, seeking an end to the secretive and unaccountable abuses of the filibuster on motions to proceed. This would allow the Senate to take up legislation or nominations. At the same time, Reid is said to be seriously considering a requirement that senators appear on the floor of the Senate and argue their positions—as senators used to do, and as Americans saw Jimmy Stewart do in Mr. Smith Goes to Washington.
What Reid is considering is not an attack on the filibuster. It is a renewal of the filibuster as it was portrayed in the classic 1939 film. Senators would still be free to go to the floor to keep debates about major bills and nominations open. They could launch filibusters to prevent the end of debate on a matter of consequence. They could use filibusters to block a final vote on a piece of legislation.
That’s the way to understand filibuster reform.
No one is seriously discussing doing away with filibusters.
The talk is of making them real.
Senator Jeff Merkley, the Oregon Democrat who has long championed reform of the Senate's abusive and abused rules, speaks highly of filibusters. He just wants to make them real. “The public believes that filibustering senators have to hold the floor. Indeed, the public perceives the filibuster as an act of principled public courage and sacrifice. Let's make it so,” says Merkley, who proposes to “require a specific number of Senators—I suggest five for the first 24 hours, 10 for the second 24 hours, and 20 thereafter—to be on the floor to sustain the filibuster. This would be required even during quorum calls. At any point, a member could call for a count of the senators on the floor who stand in opposition to the regular order, and if the count falls below the required level, the regular order prevails and a majority vote is held.”
Reid has expressed sympathy for Merkley’s modest proposal, and it is drawing support from many current and incoming senators, including Massachusetts Democrat Elizabeth Warren. In addition to Merkley and Warren, Vermont Senator Bernie Sanders, who in 2010 conducted the closest thing the Senate has seen in recent years to an actual filibuster, has been an increasingly vocal advocate for making charnges that would restore real debate to the chamber.
Of course, Republicans are screaming, as their ability to effectively define the direction of the Senate, despite their minority standing, is threatened. Senate Minority Leader Mitch McConnell, R-Kentucky, is decrying even the most minor reform as a “naked power grab” that would “poison” relations in a Senate where relations are not exactly good.
McConnell and his allies are even threatening to derail “fiscal cliff” negotiations if any move is made to renew the filibuster as it was historically employed.
But the frustration among members of the Democratic majority is such that some action now seems not just necessary but likely.
“We cannot allow the Senate to be dysfunctional by the use of filibusters,” says Senate Majority Whip Dick Durbin, D-Illinois, who has emerged as a leading proponent of filibuster reform. “We’ve had over 300 filibusters in the last six years — it’s unprecedented. What we’re talking about is very basic — you want to start a filibuster, you want to stop the business of the Senate, by goodness’ sake, park your fanny on the floor of the Senate and speak. If you want to go to dinner and go home over the weekend, be prepared, the Senate is moving forward.”
Forward, yes. But, also, backward—to the days when senators who wanted to filibuster had every right to do so in public. But no right to block action with behind-the-scenes maneuvers and rank obstructionism.
For more Beltway battles, check out George Zornick's coverage of the fight for a stronger Securities and Exchange Commission.