We’ve become accustomed to reading headlines like “DADT Repeal Fails in Senate, 57 to 40,” but that doesn’t make them any less surreal. Only in the Senate does winning by 17 votes constitute defeat. That’s because Republicans now require that every piece of legislation in the body receive 60 votes before it even comes up for a formal vote, let alone becomes law. The incessant misuse of the filibuster has turned the Senate into an increasingly dysfunctional body where, quite frankly, it’s miraculous that anything ever gets done.
The filibuster once again made headlines last week during Bernie Sanders’s dramatic nine-hour speech against the tax deal on the Senate floor. But Sanders’s stirring performance was a rare exception to the rule. These days, one senator can merely object to a bill moving forward and slow Senate business to a crawl as leaders scramble for 60 votes. In fact, the last Sanders-esque filibuster occurred in 1992, according to the LA Times, when New York Senator Al D’Amato held the floor for 15 hours and 14 minutes after an upstate New York typewriter maker sought to move its factory to Mexico.
A few years ago, Republicans threatened to shut down the Senate because Democrats were blocking George W. Bush’s judicial nominee. But the level of Senate obstructionism has skyrocketed in recent years, mostly off camera. The number of cloture motions—the requirement that a bill get sixty votes to proceed to a binding vote—has more than doubled since 2006, when Republicans assumed the minority.
Four hundred and twenty bills passed the House in the last session of Congress but died in the Senate, including the Employee Free Choice Act, cap-and-trade, pay equity for women, an audit of the BP claims fund, a plethora of critical jobs bills, and the repeal of "don’t ask, don’t tell.” DADT repeal failed in the current lame duck session, as did an extension of just the middle-class Bush tax cuts. Passage of even a few of these critical bills would have made Barack Obama’s presidency far more transformative.
“There have been more filibusters since 2006 than the total between 1920 and 1980,” notes New Mexico Senator Tom Udall. Udall was a guest on “Maddow” last night, where he explained his plan to change the Senate rules, known as “The Constitutional Option,” at the start of the new session of Congress on January 5. The Constitutional Option requires only a simple majority, 51 votes, to trigger a rule change. Maddow called it “the single most important thing that could be done to change Washington on a single day in the legislature.” The freshman Democrat outlined the specifics of his plan in a spiffy video released by his office last week.
Udall’s “Constitutional Option” has begun to pick up steam. This week a broad array of groups, including the AFL-CIO, SEIU, United Steelworkers, the Sierra Club, Common Cause and the Brennan Center for Justice, unveiled the “Fix the Senate Now” coalition and released an eight-point plan for reforming the Senate rules. “Far from fostering deliberation and bipartisanship, the current rules prevent matters from ever being considered, remove incentives for bipartisanship, and make it impossible for the Senate to fulfill its responsibilities,” they wrote in a joint letter to senators. As step one, the coalition backs Udall’s plan to change the Senate rules at the start of the next session, an idea that is garnering increasing support inside the Democratic caucus. (Common Cause will soon file a lawsuit in district court alleging that the filibuster is unconstitutional.)
So what should the new Senate rules be? Iowa Senator Tom Harkin has a proposal that would curtail lengthy filibusters and encourage genuine compromise. “On the first cloture attempt, sixty votes would be required,” Harkin explained in The Nation in June. “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,” Harkin writes. “However, the minority would no longer have the power to brazenly block the majority from legislating.”
Oregon Senator Jeff Merkley also has a plan to restore the Senate’s reputation as “the world’s greatest deliberative body” by encouraging senators to follow the lead of Bernie Sanders and actually be forced to stay on the Senate floor for hours and hours to “explain to the American people why they think they are right and a majority of Senators are wrong.” Ezra Klein calls Merkley’s plan “filibuster reform that even the filibuster’s supporters can love.”
Udall, Harkin and Merkley have introduced thoughtful and reasonable proposals worthy of consideration by the Senate and its leadership. Harry Reid has said in the past that he believes “the filibuster has been abused” like “the spitball was abused in baseball.” It’s within his power to push to change the status quo—and put a stop to endless gridlock and dysfunction—on January 5.