The use of the filibuster to create gridlock in the Senate has increased drastically over the past two decades, according to a new report from the Congressional Research Service. The report, prepared for the Senate Committee on Rules and Administration, details the changes to and uses of the modern filibuster from its inception in 1917 through 2008. The first such report since 1985, it clearly demonstrates that the Senate did not always have a tradition of unlimited debate.
The report is also an important reminder that the Senate has the authority to change its own rules. Since the creation of the cloture rule (the parliamentary process for ending a filibuster) in 1917, which itself was intended to combat legislative obstruction, the Senate has changed the rule six times in order to reign in abuse of the filibuster that has limited the Senate’s effectiveness.
The Brennan Center has observed the trend of increasing abuse of the filibuster and has called for filibuster reform that would “place a burden upon filibustering senators” to delay action on legislation supported by the majority of Senators. The Senate has adjusted the rules governing the filibuster many times in the past to ensure it is a tool to give the minority a chance to influence legislation, but not a recipe for legislative paralysis. It is time for the Senate to reform the filibuster again.
The blogosphere is abuzz with news that the Senate Majority Leader Harry Reid invoked the so-called “Nuclear Option” last night to squelch procedural game-playing. By exercising his power to exert majority control over the legislative process, Reid certainly showed some chutzpah. But what happened was not revolutionary — indeed, it was not even unprecedented.
Here’s the story. Reid and McConnell have spent several days arm-wrestling. Reid has been pushing a bill to punish China for currency manipulation; McConnell has been seeking to force a vote on President Obama’s American Jobs Act before Senate Democrats are ready for it. The currency bill moved forward — yesterday, the bill reached its final, post-cloture period before an up-or-down vote. Then, McConnell sought to attach a non-related amendment to the bill — the entire Jobs Act. This is plainly against Senate rules. (After a cloture vote, all amendments must be germane to the principal legislation; this one, quite clearly, was not).
And so, McConnell took an over-the-top step: He moved to suspend the Senate rules and allow a vote on both bills anyway. Reid protested that McConnell’s amendment and motion were improper delay tactics, and thus out of order. Unable to settle this disagreement, they appealed to the Senate parliamentarian. And then, things got interesting.
The parliamentarian ruled that McConnell was not out of order. Reid retorted by appealing to the entire Senate — and obtained a majority vote to overturn the parliamentarian. This means that, similar to the “nuclear” or “constitutional” option available at the start of each new Senate to change the Senate’s standing rules, a simple majority successfully overcame obstructionism (and an unfavorable ruling by the parliamentarian) in order to proceed with an up-or-down vote. In other words, the Senate exercised its inherent constitutional power to determine its own rules by a simple majority.
Yesterday’s events are certainly noteworthy. Reid exerted his majority’s control over the legislative process in a manner that he could use to beat other types of procedural game-playing. (For instance, Reid could be much more aggressive in his approach to secret holds, either by calling the holder’s bluff and forcing a public filibuster, or by defying Senate tradition and simply ignoring the indefensible request to thwart someone’s nomination indefinitely.)
On the other hand, these events are not unprecedented. Consider this:
(1) As explained fully here, there is not much question that the Senate has the constitutional power to override a filibuster via majority vote at the start of a new Congress. Indeed, it has been done before, at the start of the legislative session in 1975. Reid’s move yesterday just adds another layer of supporting precedent.
(2) Despite common misperception, the Senate changes its procedural rules all the time — through unanimous consent agreements, for instance. And, both chambers occasionally enact statutes with procedural restrictions that allegedly apply to future Congresses, via a simple majority vote.
(3) Finally, while the 2001 Republican-led Senate may not have formally voted to override the parliamentarian’s opinion on the use of reconciliation, it was only because they did not have to. Instead, the Senate fired their parliamentarian and hired someone who would not rule against them. There is little doubt, however, that the Senate did not feel bound to an opinion with which they disagreed.
And so, at the end of the day, the big news from yesterday is no news at all. The latest procedural competition simply underscored the archaic, overly-complicated nature of the Senate rules. Reform is well overdue.
Last week, Senators Harry Reid (D-NV) and Mitch McConnell (R-KY) announced a handshake agreement aimed at curbing obstruction and increasing transparency in the Senate. While these reforms are modest, they are important steps to ensure the Senate is a functioning, legislating body. But what comes next? Changes in procedure must be followed by a change in culture – not just of the Senate, but also of the public to hold senators accountable for their actions.
The chicken-and-egg relationship between Senate rules and Senate culture is a complicated one. Some argue, as Sen. Pat Roberts (R-Kan.), has during a Senate Rules Committee hearing on the filibuster, that the rules are not the problem. Instead, lack of comity is to blame for legislative gridlock. Sen. Lamar Alexander (R-Tenn.) said it plainly: “The Senate needs to change its behavior, not to change its rules.” In this view, a rules change would be fruitless because the real problem is that of a Senate cultural decline. Others, such as Norm Ornstein, acknowledge that while changes in the culture would surely affect the Senate’s daily proceedings, we must change the rules that incentivize obstruction and partisan games.
No matter what we blame for the Senate’s current state of dysfunction—its rules or its culture—it is clear both are flawed and both contribute to the chamber’s flawed operation. Rules can shape culture and vice versa. And just because the problem might originate in Senate behavior, that doesn’t mean that rules reform can’t be an effective way of fixing the situation. We may not be able to pass a resolution that forbids senators from placing a blanket hold on all pending nominations for reasons completely unrelated to the nominees. But lowering the number of executive appointments needing Senate confirmation might reduce the incentive to do so.
Last week’s agreement was an attempt to address Senate culture through changed procedures without going as far as an official rules change. Senate leadership publicly pledged to not use the so-called Constitutional Option to affect a rules change via majority vote at the start of a new Congress. They also agreed to refrain from filibustering on the motion to proceed and to use the tactic known as “filling the amendment tree” less. These agreements are nothing more than promises; there are no consequences for violating any of these pledges.
Instead, the agreement places the burden of enforcement onto fellow senators, the media, and ultimately, the public. Changes in Senate rules and culture are not the only avenues for reform; the public can and should play a more prominent role to check Senate dysfunction. While there might not be official repercussions for placing an irresponsible blanket hold on nominees, the American public needs to speak up the next time it sees abuse of the Senate’s rules. There is too much work to do in 2011 for the Senate to delay important legislation with the same old stall tactics. We need to let our senators know that it is unacceptable to obstruct progress for individual or party gain and that we will hold them accountable.
The following is an excerpt from a column I wrote, which appears in today's Politico:
To be sure, these changes represent steps – albeit baby ones – in the right direction. But they do not come close to addressing the root causes of Senate dysfunction. Here’s why:
First, these proposals would not be implemented through an official rules change. Instead, they rely on a “gentleman’s agreement,” an informal handshake between the parties.
This is already suspect. If the Senate were actually comprised of gentlemen and gentlewomen committed to institutional comity, it wouldn’t be riddled with gridlock in the first place.
In fact, secret holds are already banned. The 2007 Honest Leadership and Open Government Act requires senators to publicly disclose their holds within five days. Most senators, however, routinely dodge this rule with a tag-team-hold technique. By passing off an anonymous hold to a cooperating senator (think relay runners) just before the five-day limit expires, a few senators can maintain a secret hold indefinitely – without technically violating the rules.
The current proposal to ban secret holds would change nothing. It is not a meaningful fix because it lacks any enforcement mechanism.
Similarly, reducing the number of executive appointments that need to be confirmed by the Senate also skirts the underlying issues. This move may lessen the logjam somewhat. But there will still be dozens, even hundreds, of nominees in limbo, while essential executive positions remain unfilled.
Senators are still likely to place indefinite, anonymous holds on uncontroversial executive nominations to extract concessions on unrelated issues. Despite Chief Justice John Roberts’ public rebuke of the Senate for partisan game-playing that has created “judicial vacancies in critically overworked districts,” the current reform proposal would not address the judicial nomination crisis at all.
The current proposal thus contains minor fixes that ignore the core problem: The Senate’s procedural rules incentivize the wrong things. Under the current system, obstruction, partisan maneuvering and strategic gamesmanship predominate. There is little genuine debate on the critical issues facing our country.
Too often, individual senators can wield the extraordinary power to singlehandedly block legislation or nominations, to gain leverage on their pet projects – with no negative consequences. Legislating takes a back seat to obstruction.
There were several effective solutions introduced earlier this month that would make a significant difference in the way the Senate operates. The most important proposal is also the simplest: Make filibustering senators filibuster.
This fix – known as the “Mr. Smith Goes to Washington” proposal – would force objecting senators to actually debate to sustain a filibuster. As the rules now stand, a senator need not be physically present. Instead, the majority party must produce 60 votes to break obstruction and move forward to a substantive vote.
Changing the rules so that a filibustering senator must take the floor, shifts the burden of maintaining a filibuster to the obstructer – making filibusters more difficult to maintain.
Even better, Mr. Smith-style filibusters require real debate. Obstructionists would have to explain their reasons for blocking legislation or nominations that have majority support – and let the American people approve or disapprove of their decision.
Another important proposal would limit the number of opportunities to filibuster a measure. Allowing only one bite at the apple, so to speak. Now, any senator seeking delay gets as many as six opportunities to filibuster a single measure – giving obstructionists the power to effectively kill legislation with a million cuts.
In fact, most of today’s filibusters don’t occur while a bill or nominee is actually being debated on the Senate floor. Instead, the matter is often derailed during the motion to proceed to the Senate floor – therefore preventing public debate entirely.
The American people should not have to settle for baby steps by agreeing to a watered-down compromise. There is too much work to do in 2011 – like stimulating the economy, fighting the continued threat of terrorism and addressing pressing environmental concerns – for the Senate to remain crippled by its own procedural rules.
There were some dramatic predictions for what would happen when proposals to reform the Senate’s archaic and wildly-abused procedural rules were introduced on the first day of the 112th Congress. FoxNews predicted a nuclear reaction; others had violent visions of the filibuster’s total demise. Some argued that, if any rules change occurred, the Senate would turn into the House before our very eyes.
Now the big day has come and gone, not ablaze with fire and brimstone, but awash with logic and reason. Here’s what happened.
As expected, Senator Tom Udall explained that a simple majority can stop obstruction and force an up-or-down vote on any proposal to reform the Senate’s rules on the first legislative day of the session. This “constitutional option” for rules change is of great practical significance: After the Senate has acquiesced to its standing rules (which automatically carry from session to session unless changed), it is bound by the Rule XXII now on the books, which requires two-thirds of the Senate – 67 senators – to agree before proceeding to vote on any rules change motion. (To put that high hurdle in perspective, the Constitution requires a two-thirds vote to override a presidential veto!) While the Senate’s power to force a majority vote on a rules change proposal at the start of a new session is supported by solid constitutional law and senate tradition, and has been repeatedly endorsed by leaders of both parties over the years, some still try to paint this move as illegitimate. The formal introduction of Senator’s Udall proposal did not, however, inspire fistfights or shouting – instead, most seemingly agree with Senate Udall’s reading of the Constitution and Senate history.
Then, Senate Majority Leader Harry Reid made an announcement that put an unusual, but not unprecedented, twist on this scenario. The Senate, after its first day on January 5th, will recess until January 24th, thereby preserving the constitutional option. While some predicted that this news too would inspire outrage, it was also accepted without controversy.
Next, proposed reforms were introduced and discussed in a number of thoughtful speeches. The most notable package is co-sponsored by 23 senators. This package is carefully geared to address the worse abuses of Senate procedural while encouraging actual debate and deliberation – all without “killing” the filibuster. And, despite the über -partisan spin often put on this debate, several of the reform package’s provisions have bipartisan support.
To start, the package would prohibit filibusters on motions to proceed, meaning that senators could no longer use the filibuster to prevent debate on the merits of legislation or a nominee. It would also outlaw so-called secret holds, the indefensible practice of anonymously preventing a bill or nominee to move forward for consideration. (Why this has ever been permitted is beyond me….) Both of these no-brainer reforms are supported by members of both parties.
Next, one provision would expedite the process for considering nominees by limiting additional debate on any nominee who has already passed the 60-vote threshold needed to break a filibuster. This is sorely needed: As of November 2010, President Obama had 151 vacancies in high-ranking executive posts due to a nominations back-log. And, Supreme Court Chief Justice John Roberts, decrying the numerous “judicial vacancies in critically overworked districts,” just publicly admonished the Senate to stop playing partisan games and find “a long-term solution to this recurring problem.” The nominations problem is one that we cannot continue to ignore.
The reform package also includes a provision to protect the minority’s right to offer amendments on legislation. Specifically, it would guarantee members of the minority party the chance to offer three germane amendments after a filibuster on that matter has come to an end. This allowance is geared to address the minority’s party’s biggest complaint, that the majority has repeatedly abused its power by preventing them from offering any amendments.
Finally, and perhaps most notably, the package would bring back talking filibusters – a vital reform. By insisting that objecting senators actually take the floor and continue to debate any filibustered matter, this reform would restore the filibuster to its original useful purpose – a means for a determined minority to delay final consideration of a bill or nominee when they are particularly passionate about the outcome. If senators are forced to take a public stand in order to maintain a filibuster, the filibuster will no longer be abused to block uncontroversial measures. And, talking filibusters would restore accountability to the Senate. Obstructionists would have to explain their reasons for blocking legislation or nominations that have majority support – and let the American people approve or disapprove of their decision.
In sum, these reforms would curb unprincipled obstruction while facilitating deliberation and decision-making. The filibuster would survive, and the Senate would be better-positioned to address the myriad problems of 21st Century America. While some may still be crying “wolf,” the grown-ups in the room should continue to discuss the serious issue of Senate procedural abuse in muted tones – and realize that the time to adopt reasonable, logical reform is now.
I love the hopeful feeling at the start of a new year. Briefly, anything seems possible.
There is one reason to be especially hopeful right now, just days into 2011. Incredibly enough, the Senate is poised to reform its archaic procedural rules that allow a minority of senators to veto legislative action supported by the majority. In fact, just weeks ago, all returning Democratic senators sent a letter to Majority Leader Harry Reid endorsing rules reform as the first priority for the 112th Congress when it convenes on January 5th.
This is very good news. Over the last decade or so, filibuster abuse has changed the nature of what used to be considered the world’s greatest deliberative body. To start, rampant use of the filibuster has instituted a de facto 60-vote requirement for ordinary business, contrary to the principle of majority rules that underlies our governmental structure. And, rather than promoting actual debate on substantive issues, filibusters today are constantly used to prevent debate from ever occurring – often obstructionists seek to thwart all legislative progress, including serious deliberation. When nothing happens, senators in both parties are allowed to avoid making hard calls on tough decisions, thereby shielding themselves from any kind of political accountability. What progress does occur is regularly riddled with concessions made to appease individual senators whose votes are needed to reach a supermajority.
Even worse, the Senate’s dysfunction is uncontainable; it taints the operation of our government as a whole. Appropriations bills are a prime example. By constitutional design, these bills originate in the House before moving to the Senate for final passage. Although, year after year, the House submits such measures to the Senate in a timely fashion, the Senate consistently fails to address these bills by deadline, leaving agencies adrift and ineffectual. As a result, in fiscal year 2010, about 290 billion dollars authorized for nondefense discretionary spending had to be appropriated without legislative guidance – or legal authority.
The Senate’s failure to vote on nominated federal judges constitutes another example. Under the Constitution, the Senate must confirm or reject the President’s judicial picks. Last session, however, the Senate simply looked the other way as dozens and dozens of judges languished in confirmation purgatory, even though they were rated “Unanimously Well Qualified” by the American Bar Association. Albert Diaz, for instance, waited for 409 days before recently being confirmed to the Fourth Circuit Court of Appeals – even though he was ultimately confirmed without any objection. No wonder Supreme Court Chief Justice John Roberts, decrying the numerous “judicial vacancies in critically overworked districts,” just publicly admonished the Senate to stop playing partisan games and find “a long-term solution to this recurring problem.”
As more and more Americans are recognizing, the current state of affairs is simply unacceptable. We elect representatives to address the myriad complex problems faced by 21st century America – indeed, we contribute cherished tax dollars to pay our senators for this very purpose. For our government to properly function as one “by the people, for the people,” our senators must actually debate important issues and then make decisions. To accomplish this, the Senate must be governed by fair and equitable rules – like any court proceeding or sporting event.
Happily, productive ideas of how to curb unprincipled obstruction abound. To start, there is bipartisan support for outlawing filibusters on a motion to proceed – in other words, to eliminate filibusters that prevent debate entirely. Similarly, there is widespread agreement that there should be only one opportunity – one bite at the apple, so to speak – to delay a vote on any given measure or nomination. And, it should be difficult for obstructionists to block action preferred by the majority. While under current rules, filibustering senators need not even show up to stop the show, many reasonably argue that obstructionists should be forced to actually go out on the Senate floor and debate, with “political courage.” Ultimately, once all senators have had a reasonable opportunity to express their views, every measure or nomination should be brought to a yes-or-no vote in a timely manner – the way our legislative process is intended to work.
Without rules reform, we should expect the ever-escalating procedural arms race to continue through both Republican and Democratic rule. Senate dysfunction is simply not a partisan issue, but one that should concern everyone who is affected by Senate action or inaction – namely, we the people.
So tomorrow, when the Senate kicks off its first legislative day, here’s hoping that the Senate undertakes robust procedural reform. Our democracy deserves that fresh start.
Democrats have seen one bill after another watered down in pursuit of 60 votes in the Senate, where a lock-step Republican opposition has mounted more filibusters and filibuster threats this session than in all of post-war history combined. Mimi Marziani, David Roberts, Sen. Tom Udall, David Waldman, Matthew Yglesias.
At the end of Monday’s night’s third Living Constitution Lecture, Senator Tom Harkin (D-IA), urged all 200 attendees to stand up at their next city council or school board meeting and insist that the minority view prevail over the wishes of the majority. And in this way, he reasoned, it might become clear to more Americans how the Senate's filibuster rule creates dysfunction and unintended consequences.
“…[T]he harsh reality today is that, in critical areas of public policy, our Congress is simply unable to respond effectively to the challenges that confront the United States today. Consider the major issues that the Senate has tried and failed to address: climate change and energy policy, labor law reform, and immigration reform, to name just a few,” he said. The Senate’s filibuster rules, which allow a single senator to hold up most types of legislation indefinitely in the absence of 60 votes to end debate, are “an unprecedented abuse of Senate rules [that] has simply overwhelmed the legislative process.” Both parties have been guilty of abusing Senate rules to hold up the nation’s business in recent years to an unprecedented extent.
Many Americans might be amused at the strange filibuster rule of the Senate, which brings to mind Jimmy Stewart’s comic and touching all-night filibuster in Mr. Smith Goes To Washington. But the year that movie was made, 1939, there were zero filibusters in the Senate. Over the 52 year period from 1917 to 1969, there were fewer than 50 filibusters, less than one per year. “In contrast,” said the Senator, “during the last Congress, 2007-2008, the majority was obliged to file a record 139 motions to end filibusters. Already in this Congress, since January 2009, there have been 98 motions to end filibusters.”
Senator Harkin has been a voice for reform of the filibuster rule since 1995, when he was a member of the minority party and thus had the most to lose from filibuster reform. He proposes gradually reducing the number of votes required to close debate (“cloture”) from 60 to a simple majority over a period not to exceed eight days, which would leave plenty of time for the minority to debate, win over public opinion, or, as a last resort, propose soothing and compromising amendments. “It is about the Senate as an institution operating more fairly, effectively and democratically,” he noted.
The Living Constitution Lecture is meant to give a platform to a public official who has considered the Constitution’s great principles in the course of his or her work. Here, the Senator noted, though the Constitution has a number of brakes on the principle of simple majority rule (the structure of the Senate being the most obvious), the Constitution was framed to correct “glaring defects in the Articles of Confederation –which required a two-thirds supermajority to pass any law, and unanimous consent of all states to make any amendment…It is not surprising that the Founders expressly rejected the idea that more than a majority would be needed for most decisions.”
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