The filibuster has become dysfunctional; it’s time to fix it

Democrats in the Senate will get to demonstrate this week whether they have the courage of their convictions in addressing what has become a dysfunctional abuse of the filibusters by both parties during the Bill Clinton, George W. Bush and Barack Obama presidencies.

The filibuster appears nowhere in the Constitution, and to the extent that the Constitution enumerates specific instances in which a super-majority vote is required, the implication is clear that the Founding Fathers envisioned routine legislation being passed in both houses of Congress by a simple majority.

The filibuster is a creation of Senate rules and it can be defined or redefined by the majority at the beginning of a new session of Congress. At least, that is the contention of a group of Democratic senators, and they seem to have precedent on their side.

Vice President Joe Biden, who is the president of the Senate, must agree that the rules for the incoming Senate can be changed on the first day of the new session by a majority vote. At least three previous vice presidents have ruled to that effect, and it is difficult to imagine that Biden wouldn’t be happy at this point to approve of a rule change that would give President Obama a better chance of pursuing his agenda.

Then the majority must agree on what changes to the filibuster are reasonable.

The most obvious, and one we have long advocated, is to return to something akin to a true filibuster. That is, if a senator or group of senators feels strongly enough about blocking a piece of legislation, let them stand on the Senate floor and argue their point, much as independent Sen. Bernie Sanders of Vermont did in the closing days of the 112th Congress when he talked for 8.5 hours against tax cut legislation.

As it is now, a minority announces its intention to filibuster, a vote is taken, and unless 60 senators vote to end debate, whatever legislation is before the Senate effectively dies. There’s no up-or-down vote on the merits; a minority, not the majority, rules.

It sounds like a plan

Sen. Jeff Merkley, D-Oregon, suggests that once a filibuster has started, five filibustering senators to be present for the first 24 hours; 10 during the next 24 hours and 20 after that. Meanwhile, there would have to be an ongoing debate, the kind of debate that informs the public about what is at stake.

There are other variations under discussion, but Merkley’s proposal captures the spirit of a working democracy.

Still, the present system has its fans.

“Neither side knows after 2012 whether they’re going to be in the majority or the minority,” Ross Baker, professor of political science at Rutgers University, told ABC News. “How much of a stick do the Democrats want to stick in the Republicans’ eyes?” Besides, Baker suggested, the 60-vote threshold encourages compromise. “On really, really important things, you really do want a consensus,” he said.

But the filibuster is no longer reserved for “really really important things.” It’s being used to block legislation that would have glided through the Senate in the less partisan days of yore.

As to whether Democrats should preserve the filibuster toward the day that they are in the minority, we’d suggest that they might as well change it now and enjoy the benefit rather than wait for the inevitable change if or when they do become the minority.

Democrats have only a bare majority in the 112th Congress and historically, it is likely that they will lose seats in 2012. That would mean Mitch McConnell, R-Ky., would likely be the majority leader in the 113th Congress.

McConnell was against the filibuster (when Republicans were in the majority) before he was for the filibuster (when Republicans weren’t). In the minority, McConnell enthusiastically endorsed a growing number of filibusters, and last month threatened to block any Senate action unless and until all of the Bush-era tax cuts were extended. It strains credulity to suggest that if McConnell is in control of the Senate in the 113th Congress that he would allow a Democrat minority to do to him what he did to them during the 111th Congress.

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