Filibluster: Senate Rules Deal Yields Good and Bad News

January 29, 2013

Crossposted at Huffington Post.

Senate leaders Thursday adopted a bipartisan package of rules changes designed to smooth Senate procedure and curb government gridlock, but the dream of truly reforming the filibuster came to an end (for now). Advocates spent months pushing for significant change. Although this package fell well short of that goal, reformers didn’t come away empty handed.

After one of the least productive Congresses in history, Senate leaders knew something needed to change. In July, Majority Leader Harry Reid described that state of Senate paralysis in stark terms. “I think what has happened the last few years of changing the basic rules of this Senate, where we have not 50 votes to pass something but it takes 60 on everything, I think that's wrong,” Reid said. Without substantial change, Reid said the Senate would continue to be “inoperative.”

There is a clear empirical basis for the problem Reid described. During his six years leading the chamber, Reid faced 391 filibusters. In the six years prior, Majority Leaders faced 201 filibusters. This rampant obstruction hit its mark, with the Senate passing only a mere fraction of its own bills. At its peak efficiency in the 1950s the Senate passed 27 percent of bills originating in the chamber. In the recently concluded Congress, it passed a record-low 3 percent of its bills.

Despite the severity of the problem and Reid’s apparent determination to fix it, the negotiated package of reforms is pretty tepid. Nevertheless, months of debate about Senate dysfunction and passionate grassroots involvement on the issue did achieve some progress.

Bad News:

Senate Republicans were more than happy to endorse the procedural changes because, in Sen. Johnny Isakson’s (R-Ga.) words, “The rules change doesn’t really do a lot.”  

The procedural changes will do next to nothing to address the core issue Reid identified. The package will provide new ways for the majority leader to avoid or expedite filibusters on motions to begin debate on legislation, reduce the number of opportunities to delay reconciliation of differences between House and Senate legislation, and streamline consideration of some of the more non-controversial nominations. At best, the changes will enhance the majority’s ability to navigate obstructionist activity. It will not, however, in any way discourage or impede even the most frivolous filibusters.

Moreover, Reid’s retreat from invoking the “constitutional option” engrains the harmful narrative that the Senate can insulate its rules from changes by future Senates. It also indirectly lends credence to the patently false suggestion that the filibuster is part of the constitutional framework or the Framers’ original intent — it’s not. The original Senate had a procedure to end debate by a simple majority vote, and the Framers explicitly rejected supermajority requirements for most legislative actions in order to avoid the pitfalls that bedeviled the country under the Articles of Confederation. The Senate, except when considering the weightiest issues such as removing a president from office or amending the Constitution, is supposed to operate by majority rule.

In a rundown of the finalized deal, an unnamed Senate staffer shed some light on why some Senators were reluctant to embrace more substantial reform.

[T]he constitutional option could be used to hurt us someday when President Rubio teams up with Speaker Cantor and Leader McConnell... What happened this week in Virginia much less Ohio, Michigan, and Wisconsin the past several years should make progressives more circumspect about the value of mechanisms, like the filibuster, that preserve minority rights.

To paraphrase the Rolling Stones, in democracy, you can’t always get what you want, but with responsive and majoritarian political institutions, you just might find, you get what you need. The country faces grave challenges. Neither liberals nor conservatives possess all of the answers, but a rigid status quo is definitely not the solution. If we are to contend with deeply entrenched problems such as the country’s long-term debt obligations, climate change, gun safety, and immigration then majorities must have an opportunity to implement their agenda.

The Good:

Despite the limited nature of the procedural changes, the Senate secured the first change to the filibuster rules in nearly 30 years. Rather than settle for a handshake deal to improve the working of the Senate, as the chamber did in 2011, Reid secured actual rules changes. There is a growing realization that self-policing does not ensure functional government. This sets the table for more meaningful progress if the modest changes prove unequal to the task of overcoming gridlock.

Moreover, a young group of reform-minded senators made clear that this marks only the beginning point for Senate Rules reform. Sens. Jeff Merkley (D-Ore.) and Tom Udall (D-N.M.) worked tirelessly and tenaciously to get the best deal possible, and freshman Sens. Tammy Baldwin (D-Wis.), Martin Heinrich (D-N.M.), Tim Kaine (D-Va.), Angus King(I-Maine), Chris Murphy (D-Conn.), Brian Schatz (D-Hawaii), and Elizabeth Warren (D-Mass.) all made good on their campaign promises to fight for meaningful change by co-sponsoring S. Res. 4, the more robust rules reform package.

This young group of leaders activated the grassroots to demand reform. The drumbeat will only grow louder if obstruction continues during the 113th Congress.

Photo by Center for American Progress.