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Report

Curbing Filibuster Abuse

  • Mimi Murray Digby Marziani
  • Jonathan Backer
  • Diana Kasdan
Published: November 16, 2012

In 2010, the Bren­nan Center first issued a report on the causes and harms of current Senate dysfunc­tion, Fili­buster Abuse, and put forth a call for sens­ible reforms. Build­ing on those recom­mend­a­tions, this update provides empir­ical evid­ence of how rampant fili­buster abuse contin­ues to cause an unpre­ced­en­ted lack of legis­lat­ive productiv­ity. This analysis also considers, and coun­ters, the frequent assump­tion that it is divided party control of Congress that has caused a plunge in legis­lat­ive output. These find­ings confirm that the Senate must act decis­ively, at the start of the 113th Congress, to put its house in order.

Intro­duc­tion

How can we make Amer­ican govern­ment work better?

It is plain that this nation’s prob­lems can only be solved by parties work­ing together through effect­ive public insti­tu­tions. But Congress has increas­ingly lost the capa­city to make that happen. Over the past decade, time and again, the Senate failed to vote, or even delib­er­ate, on bills that could address the seri­ous issues facing our coun­try. This must change. Ending the dysfunc­tion that has gripped the United States Senate is a neces­sary first step. If Congress is to fulfill the people’s mandate, the Senate must amend the rules that have become its tools for legis­lat­ive dysfunc­tion.

In 2010, the Bren­nan Center first issued a report on the causes and harms of current Senate dysfunc­tion, Fili­buster Abuse, and put forth a call for sens­ible reforms. Build­ing on those recom­mend­a­tions, this update provides empir­ical evid­ence of how rampant fili­buster abuse contin­ues to cause an unpre­ced­en­ted lack of legis­lat­ive productiv­ity. Of course, since 2010, Congress has been marked by a divi­sion of party control between the House and Senate. Does that account for the grid­lock? Emphat­ic­ally, no. A close study of the Senate’s productiv­ity shows that its para­lysis stems from reas­ons well beyond divided govern­ment. The Senate contin­ues to face an unpre­ced­en­ted, effect­ively perman­ent fili­buster, which affects matters entirely within its own purview. These find­ings confirm that the Senate must act decis­ively, at the start of the 113th Congress, to put its house in order.

Why rules reform?

As find­ings in this update confirm, long­stand­ing rules have become tools for legis­lat­ive minor­it­ies to para­lyze the Senate as a lawmak­ing insti­tu­tion. Under current rules, a minor­ity of lawmakers has effect­ive veto power over bills and nomin­ees, derail­ing the legis­lat­ive process. As a consequence, little happens. Even routine legis­lat­ive matters and govern­mental appoint­ments are frozen. As a matter of prac­tice, a de facto 60-vote “super­ma­jor­ity” require­ment applies to all legis­la­tion. This is not what Amer­ica’s founders had in mind. As Alex­an­der Hamilton noted, requir­ing a super­ma­jor­ity substi­tutes “the pleas­ure, caprice, or arti­fices of an insig­ni­fic­ant, turbu­lent, or corrupt [faction for] the regu­lar delib­er­a­tions and decisions of a respect­able major­ity.”

As described in Fili­buster Abuse, both consti­tu­tional struc­ture and Senate history confirm that major­ity rule “binds both cham­bers with equal force.” Indeed — except for extraordin­ary and expli­citly desig­nated situ­ations such as expelling members — the Framers specific­ally rejec­ted super­ma­jor­ity voting require­ments after exper­i­en­cing the consequences of legis­lat­ive para­lysis under the Articles of Confed­er­a­tion. But contrary to this consti­tu­tional design, the current Senate Rules impose an unten­able super­ma­jor­ity require­ment.

Reform of these rules is neces­sary for over­com­ing the current state of Senate dysfunc­tion and congres­sional grid­lock. Fili­buster abuse deval­ues the Senate as an insti­tu­tion, cripples Congress, and under­mines the proper oper­a­tion of govern­ment — which was meant to func­tion with three branches, not two. For instance, the govern­ment cannot prop­erly fund oper­a­tions when the Senate fails to pass a single appro­pri­ations bill, as it has this year. Simil­arly, courts are left without adequate resources when the Senate ignores its consti­tu­tional respons­ib­il­ity to approve or reject judi­cial nomin­ees.

Fili­buster Abuse is Rampant:

  • As of Octo­ber 2012, the current Congress has enacted 196 public laws, the lowest output of any Congress since at least World War II. This is not purely the result of divided party control of cham­bers. Control of the House and Senate was also divided from 1981 to 1987 and 2001 to 2003.
  • The current Senate passed a record-low 2.8 percent of bills intro­duced in that cham­ber, a 66 percent decrease from 2005–2006, and a 90 percent decrease from the high in 1955–1956.
  • Cloture motions — the only way to forcibly end a fili­buster — have skyrock­eted since 2006, creat­ing a de facto 60-vote require­ment for all Senate busi­ness.
  • In the last three Congresses, the percent­age of Senate floor activ­ity devoted to cloture votes has been more than 50 percent greater than any other time since at least World War II, leav­ing less time for consid­er­a­tion of substant­ive meas­ures.
  • On aver­age, it has taken 188 days to confirm a judi­cial nominee during the current Congress, creat­ing 32 “judi­cial emer­gen­cies,” as desig­nated by the Office of U.S. Courts. Only at the end of the congres­sional term in 1992 and 2010 have there been more judi­cial emer­gen­cies.

The start of the 113th Congress offers a rare oppor­tun­ity to set the found­a­tion for reform. On the first day of the legis­lat­ive session, senat­ors can enact changes in the Stand­ing Rules of the Senate with a simple major­ity vote, instead of the 67-vote threshold normally required to change the rules. A group of newly-elec­ted, reform-minded senat­ors, join­ing with an increas­ing number of like-minded veteran senat­ors, bring reform of Senate Rules within reach.

At the start of the current session two years ago, Senate lead­ers attemp­ted to bring a modicum of effi­ciency through an informal under­stand­ing. But this “gentle­man’s agree­ment,” which in part was supposed to reduce fili­busters, had no discern­ible impact. Pledges of comity alone cannot rein in proced­ural abuse. Obstruc­tion­ist tactics by the minor­ity — and retali­at­ory meas­ures by the major­ity — cannot be curbed until the rules permit­ting these tactics are modi­fied.

After detail­ing the growth in obstruc­tion over the past six years, this report offers a blue­print for mitig­at­ing the worst abuses, while preserving a role for minor­ity input. Common­sense reform is neces­sary for the Senate to effect­ively address the chal­lenges the coun­try faces in the 21st century.

 

 

 

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