Gentlemen, you can’t fight in here! This is the War Room.”
— President Merkin Muffley in Dr. Strangelove or How I Learned to Stop Worrying and Love the Bomb
Less than six weeks into a new Congress and the U.S. Senate has already managed to vote seven times on filibusters. In the course of considering a whopping four pieces of legislation, Democrats have filibustered two of them. Two anodyne measures, terrorism reinsurance and veteran suicide prevention, sailed through without trouble. The other two, not so much.
Hold on a second. Democrats don’t really like filibusters do they? After all, Democratic leaders spent the better part of the last four years decrying the obstructionist Republicans and their excessive use of the filibuster. Now it looks like their new best friend.
A descent into the Orwell-land may be necessary to square this circle: “We don’t see ourselves as filibustering,” said Sen. Barbara Mikulski (D-Md.). “We’re not just stopping things to stop it. We feel that we’re actually being constructive.”
Meanwhile, President Barack Obama has been casting aspersions on the filibuster that his fellow Democrats are not really using. Or are they? Anyway, when asked last month by Vox’s Ezra Klein how Washington might govern in an era of polarization, Obama declared: “Probably the one thing that we could change without a constitutional amendment that would make a difference here would be the elimination of the routine use of the filibuster in the Senate.” The practice, he continued, “almost ensures greater gridlock and less clarity in terms of the positions of the parties.”
So says the guy with a veto pen poised over the two pieces of legislation (Keystone XL and Homeland Security funding) that were filibustered.
Senate Republicans aren’t setting a great example either. So far they’ve managed to pass one vital piece of legislation, terrorism reinsurance, which they had to get done because one of their own, Sen. Tom Coburn (R-TX), filibustered in the waning days of 2014. Then they approved an unassailable proposal regarding veterans’ suicides. Finally, turning to constructive engagement with the President, the Senate’s Republican leadership produced two bills guaranteed to be vetoed.
All these shenanigans make two things perfectly clear: partisan dysfunction is alive and well in D.C. and the filibuster remains its perfect handmaiden.
Changing the filibuster is not going to eliminate dysfunction or polarization. The filibuster stems from a few lines in the Senate Rule Book and has been part of the Senate for almost two centuries. Its use and abuse is a symptom of the disease, not the cause.
Still sometimes the first step to recovery from a disease is to relieve some of the symptoms. And if you’ve had the flu this season, like I have, you know how great it is when you can finally breathe.
Well legislation is oxygen for Senators. Filibusters are choking them.
Last Congress virtually every Senator introduced or sponsored some legislation—and failed to see their ideas enacted. Consider Sen. Amy Klobuchar (D-MN). In the last Congress, she was the lead sponsor of 115 bills or amendments. Or consider Sen. Cornyn, he who filibustered terrorism insurance. He also sponsored 115 bills or amendments.
The Texan and the Minnesotan both want to get stuff done. But given the filibuster, it’s virtually impossible for them to do so. Klobuchar saw at least three small bills voted out of the Judiciary Committee and on to the Senate floor last Congress. They weren’t huge, ideological bills. They were about court appointed guardians, identity theft, and metal theft. But the bills stalled out. Meanwhile, one of Cornyn’s proposals, aimed at improving military voting, also made it through committee but also faded on the floor.
I don’t know whether these bills suffered from drafting or other flaws. But I think we can agree that they embody a meat-and-potatoes approach to legislating that we should encourage.
However, the filibuster hurts even the most routine approach to governing. Big legislative proposals, with their time consuming filibusters and partisan brawling, suck up precious Senate floor time, leaving very little for small bore legislating. And even a small proposal can get filibustered for a variety of reasons: the proposing member is up for reelection and the opposing party doesn’t want him or her to have a win; the proposing member has angered someone; the opposing party wants to couple the proposal with something else. You get the drift.
A simple change to the filibuster rules could help get things going. Last year I proposed the following change to the filibuster rule: any piece of legislation voted out of committee with 80 percent or more of the committee members in favor, should be expedited for passage on the floor. A cloture vote (to stop a filibuster) should be guaranteed within three hours of the legislation being called up on the floor. And post-cloture debate should be limited to three hours. (I’m not set on those numbers by the way. Indeed, I’ve altered them from what I suggested).
The rule change would have some salutary effects:
It would encourage bipartisanship. Even a tough as nails partisan Senator might be tempted to work with the minority if it guaranteed him or her passage of a long-sought legislative item.
It would fast track passage of small, non-controversial proposals. Sure we’re not going to fix Medicare this way, but we might make some progress on relatively small matters, like, say, identity theft or military voting.
It would shift some power away from leadership and back to the Committees. The last few decades have seen a significant power shift to leadership. But Committees are the real workhorses and a tilt back to them could encourage productivity over partisanship.
It still preserves the filibuster for big, ideological debates. That’s a good thing. The filibuster is not all bad. It’s a vital tool for protecting minority rights and centuries of practice should not be tossed away lightly.
It remains to be seen whether Obama’s call for filibuster reform combined with Senate Republicans’ newfound frustration with the practice will produce the will to change. It’s still early days in a new Congress.
But a few, small bipartisan victories, a small measure of legislative functionality… now that would feel like a huge win.
The views expressed are the author's own and not necessarily those of the Brennan Center for Justice.
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