The U.S. Senate, supposedly “the world’s greatest deliberative body,” has all but ceased to function. Judges aren’t being confirmed, executive appointments aren’t approved and basic legislation cannot be passed because of egregious abuse of the filibuster.
The situation has become intolerable. When a new Senate convenes in January, it ought to adopt proposed reforms that would make a filibuster much harder to invoke and sustain, and that would require it be done much more publicly.
Those changes ought to be made regardless of which party controls the Senate.
Until now, Senate leaders of both parties have balked at trying to reform the filibuster rule, in part out of a misplaced sense of tradition. However, there is nothing traditional in how the filibuster is now being abused. There is nothing in Senate tradition — and certainly nothing in the U.S. Constitution — that requires a 60-vote majority to pass even routine legislation. But as the chart below illustrates, that has become the threshold for getting anything done.
(The chart tracks the number of attempts to overturn filibusters in each Congress. The Senate does not keep data on the number of times the filibuster itself is invoked, which would be much larger. Numbers for 2011-12 are lower because the current session has yet to be concluded, and because as use of the filibuster has become standard, fewer votes are called to try to overturn it.)
Last week, Senate Majority Leader Harry Reid took to the Senate floor in frustration to note such numbers and to admit that he had been wrong in not trying to change the filibuster earlier, as junior members of his caucus had proposed. Should Reid remain majority leader next January, his remarks suggest, he would be much more open to such a reform.
But what happens if the Republicans take control of the Senate? Won’t Democrats then need the protection that the filibuster provides to the minority party, particularly if the GOP holds the House and takes the White House too?
No. Partisan concerns aside, the filibuster as currently employed has taken much of the consequence out of losing or winning elections, and it’s time that consequence was reinstated. The legislative paralysis it has created in Washington has left government unable dangerously unresponsive to the country’s needs.
Perhaps even more dangerously, it means that nothing is ever resolved. If neither side can pass its programs, those programs are never tested against reality. The political debate in Washington then becomes more and more theoretical, and as it becomes more theoretical it also becomes more extreme. That is not how the Founding Fathers designed the system to work.
In this case, Republicans in Washington have proposed increasingly reactionary budgetary and tax proposals to satisfy an increasingly reactionary Republican base, secure in the knowledge that they would never be expected to actually pass and implement those proposals.
However, if the American people in their infinite wisdom hand the reins of power to the Republicans this November, that should change. Voters who demanded a major switch in philosophy should be able to see that philosophy enacted, for better or worse.
As currently employed, the filibuster frustrates that process. It protects the majority as much if not more than the minority, because it muddies the lines of responsibility and ensures that little ever changes. Given the current paralysis in a time when dramatic change is needed, that is not acceptable.
Fortunately, abolishing the filibuster altogether is neither necessary nor likely. The reforms proposed last year by Sen. Jeff Merkley of Oregon and Sen. Tom Udall of New Mexico are reasonable and measured.
For example, today a filibuster can be initiated anonymously, by a single senator. Under the proposed reforms, a public petition signed by a minimum of 10 senators would be required to initiate a filibuster.
Today, once a motion to filibuster is filed, no other steps are needed to sustain it. However, Merkley and Udall would reinstate the old-fashioned requirement that filibuster supporters continue to speak on the Senate floor as long as they seek to block a vote.
Those and other similar changes would restore a sense of high stakes to use of the filibuster, discouraging its use as a everyday tactic. They would ensure that when a filibuster is used, public attention is drawn to those using it and why.
Most important, it would restore the ability of the majority party to implement policies that American voters had elected them to enact. That is, after all, the essence of self-government.
– Jay Bookman