It's Time to Fix the Senate and Put an End to Filibusters and Political Gridlock
by Faiz Shakir, Benjamin Armbruster, George Zornick, Zaid Jilani, Alex Seitz-Wald, and Tanya Somanader
"I'm not a member of any organized party," Will Rogers once quipped. "I am a Democrat." Yet, the Democratic Party showed remarkable unity when every single returning Democratic senator signed a letter last month to Majority Leader Harry Reid (D-NV) "urging him to change the Senate's filibuster rules when Congress reconvenes in January." Among the proposed revisions that are most likely to be championed by these Democrats include a role that senators have to "remain on the floor to sustain" filibusters. Indeed, during the past few years, the filibuster has been transformedfrom a rarely used procedure into an unprecedented tool for obstruction and, along with other obstructive procedures like secret holds, has prevented the passage of hundreds of bills and the confirmation of countless previously uncontroversial nominees. By pursuing reform of the filibuster and other Senate procedures, progressive reformers in the Senate are embracing what Sen. Tom Udall (D-NM) calls the "Constitutional Option" -- the right of a Senate to write its own rules at the beginning of each Congress. Soon, these reformers will make their case before the U.S. Senate and the American people. At stake in this battle is the very notion of an open and accountable government that can respond to the public's wishes and not be obstructed by an obstinate minority.
A VERY MODERN TOOL OF OBSTRUCTION: One common misperception about the filibuster is that it has always been a feature of the U.S. Senate and thus, American government. Yet the filibuster as we know it today did not exist at the country's founding. Originally, "both the Senate and House of Representatives had a rule called the Previous Question Motion, where a simple majority [of votes] ended debate. ... But the Senate dropped this provision in 1806, leaving open the potential for a filibuster." Even then, the first filibuster in American history didn't take place until 1841. In the 19th century, there were "less than a dozen filibusters enacted." In 1917, the cloture rule was adopted, requiring that two-thirds of senators to agree to stop debate. In 1975, this was pared down to three-fifths' approval. In the past few decades, the use of the filibuster has dramatically spiked. From 1991-1992, there were only 59 cloture filings. During the 2007-2008 legislative year, there were a record 139 (compared to just seven during a time as politically polarized as the 1969-1970 Senate session). And while many Americans may imagine that the filibuster is used the same way that James Stewart's character used it in the 1930s film classic Mr. Smith Goes To Washington -- where the actor kept talking until he collapsed in order to keep his filibuster going -- the modern day practice does not even require a senator to stay on the floor to sustain a filibuster, rather it requires 60 votes to end one.
OBSTRUCTING PROGRESS: As previously mentioned, the use of the filibuster to obstruct the will of the democratically elected majority from enacting the agenda voters want has been slowly rising over the past few decades and grew dramatically over the past couple years as Senate Republicans sought to block President Obama and the Democratic majority's programs. According to official Senate records, there were 136 cloture motions filed from 2009 to 2010, just three motions short of the record-breaking 2007-2008 year. This unprecedented use of the filibuster by the Senate minority dramatically slowed down the government, and made hundreds of bills passed by the House stall on the Senate floor. In many cases, a minority of legislators, often buoyed by special interests, deployed the filibuster to kill legislation that was supported by huge majorities of the American people. For example, the threat of a filibuster was a major factor in the death of the public health insurance option, which had the support of 72 percent of Americans, according to a June 2009 CBS News/New York Times poll. Sen. Byron Dorgan's (D-ND) amendment that would have allowed drug reimportation from Canada was defeated even though it received 51 votes; 77 percent of Americans supported that policy according to Kaiser Health polling. Last month, Senate Republicans deployed the filibuster to defeat the DREAM Act, which a November 2010 Lake Research poll found had the support of 66 percent of Americans, including 57 percent of Republicans. Additionally, obstructionists have also made use of secret holds to "anonymously block bills or confirmations of presidential nominees from reaching the floor for an unlimited time span, making naked obstructionism politically safe"; this process has left almost one in ninefederal judgeships vacant. Also, current Senate rules even allow filibustering senators to force up to 30 hours of post-cloture debate once a filibuster is broken, continuing to delay progress on important legislation.
PATHS OF REFORM: Earlier this year, Sen. Tom Udall (D-NM) delivered an address about conservative obstruction at an event at the Center for American Progress Action Fund titled "Deliberation, Obstruction or Dysfunction? Evaluating the Modern U.S. Senate and its Contribution to American Governance." At the event, Udall discussed what he called the "Constitutional Option," which he described as the Senate having the ability to alter its rules with a simple majority vote at the beginning of each Congress. Udall has enlisted the support of a number of other senators, and they plan to push for a reform of the chamber's rules starting on its first day, January 5. There are several different plans being proposed for changing Senate rules. Udall, along with others such as Sen. Claire McCaskill (D-MO), wants to end secret holds. Sen. Jeff Merkley (D-OR) has proposed requiring a "specific number of Senators...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." "The American people believe that you have to go defend your position, hold the floor, and if you're not there, the Senate goes forth and holds a majority vote. And so that is the model we're trying to create," the senator said during an appearance on The Big Picture With Thom Hartmann. Meanwhile, Sen. Tom Harkin (D-IA) is calling for ending the filibuster altogether. The sentiments of the reformers are in line with 50 percent of Americans, who said in a February 2010 CBS/New York Times poll that the filibuster should be changed (44 percent were opposed).