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Filibuster Reform: Curbing Abuse to Prevent Minority Tyranny in the Senate

Sen. Harkin delivered the 2010 Living Constitution Lecture at the Brennan Center for Justice. Here are his remarks…

Published: June 21, 2010

Sen. Harkin

Thank you, Dean Revesz for that kind intro­duc­tion. I also want to thank Michael Wald­man, Exec­ut­ive Director of the Bren­nan Center, and Kelly Willi­ams, who brought in food and wine from Iowa for the recep­tion.

And I thank the Bren­nan Center for Justice for invit­ing me to give the 2010 Living Consti­tu­tion Lecture. It is an honor to be here, and I am grate­ful.

My parents would be aston­ished to see their son deliv­er­ing a “lecture” at New York Univer­sity. My mom was an immig­rant from Slov­e­nia, and had little formal school­ing. My dad was a coal miner who left school after the 6th grade. Actu­ally, Dad claimed to have finished 8th grade, but he was Irish and liked to boast!

But, enough with the humil­ity! I am glad to be here, and glad to be among people who share, as I do, Justice Bren­nan’s passion for ensur­ing that our soci­ety lives up to the prin­ciples of equal­ity and liberty embod­ied in the Consti­tu­tion.

Before I discuss the press­ing need for fili­buster reform in the United States Senate, I want to salute the Bren­nan Center’s activ­ism in the cause of improv­ing access to qual­ity civil legal services for all Amer­ic­ans. This issue is very personal to me. Before I was elec­ted to Congress, I worked as a legal aid attor­ney in Iowa; and in the Senate I have fought for years to strengthen federal support for legal services. The Bren­nan Center has been an import­ant ally in this effort, and I am very grate­ful for your work in this cause.

The Bren­nan Center invited me to discuss the United States Senate, and in partic­u­lar my efforts to reform the use of the fili­buster. Some may ask: why is a Senator, admit­tedly not a consti­tu­tional scholar, address­ing a some­what arcane Senate proced­ure – to be precise Senate Rule 22 – as part of an annual lecture examin­ing the Consti­tu­tion?

The fact is, when we discuss the “living Consti­tu­tion,” a conver­sa­tion regard­ing this partic­u­lar legis­lat­ive proced­ure is both appro­pri­ate and timely.

* * * * *

Before the Bill of Rights and the Civil War Amend­ments – each contain­ing vital protec­tions for indi­vidual rights and liber­ties – the Founders enacted the Consti­tu­tion to ensure that our citizens, through their demo­crat­ic­ally elec­ted govern­ment, could effect­ively address prob­lems facing the Amer­ican people. As Justice Breyer wrote, “The Consti­tu­tion is a docu­ment that trusts people to solve the prob­lems of a community for them­selves. And it creates a frame­work for a govern­ment that will help them do so. That frame­work fore­sees demo­crat­ic­ally determ­ined solu­tions, protect­ive of the indi­vidu­al’s basic liber­ties.”

However, the 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.

And, more than 100 Obama nomin­ees, 85 percent of whom were repor­ted out of commit­tee with over­whelm­ing bipar­tisan support, are being preven­ted from even being considered by the full Senate. At this time in George W. Bush’s pres­id­ency, only eight nomin­ees were await­ing confirm­a­tion.

Quite frankly, the unpre­ced­en­ted abuse of Senate rules has simply over­whelmed the legis­lat­ive process. As Norman Ornstein, a lead­ing polit­ical scient­ist, wrote in a 2008 article titled Our Broken Senate, “[t]he expan­ded use of formal rules on Capitol Hill is unpre­ced­en­ted and is bring­ing govern­ment to its knees.”

Let me give you just a few examples. In Febru­ary, one Senator blocked confirm­a­tion of every single exec­ut­ive branch nominee. This past winter, one Senator insisted that a 767-page amend­ment be read out loud and in its entirety – also prevent­ing the Senate from conduct­ing other busi­ness for many hours. In March, the minor­ity even used arcane Senate rules to block routine commit­tee hear­ings.

Let’s be clear, these rules are not new, they have been around for a long time. What is new is the level of abuse. I have been in the Senate for a quarter century. Through­out my career, while there have certainly been ideo­lo­gical differ­ences and policy disagree­ments, but the lead­er­ship of the minor­ity – some­times Demo­crats and some­times Repub­lic­ans – while work­ing to protect the broad interests of the minor­ity, worked with the major­ity to make the system work. And, there have been moder­ates will­ing to comprom­ise and inter­ested in the act of govern­ing – of turn­ing a bill into a law.

But, today, that is not the case. Some members of the minor­ity party are so reflex­ively anti-govern­ment that in their mind, there can be no comprom­ise. Rather than respons­ibly use the rules, they are will­ing to abuse Senate proced­ures in order to sabot­age and grind the entire govern­ment to a halt. This is the case with just a hand­ful of minor­ity members – but that is enough. And, with the support or acqui­es­cence of the caucus’s lead­er­ship, they are able to prevent the Senate from acting. They are able to fulfill William F. Buckley’s rather extreme descrip­tion of a conser­vat­ive as someone who stands “athwart history yelling stop.”

In no area is this more pronounced than the abuse of the fili­buster, which has been used in recent years at a frequency without preced­ent in the history of our coun­try.

Histor­ic­ally, the fili­buster was an extraordin­ary tool used only in the rarest of instances. When many people think of the fili­buster, they think of the climax of the clas­sic film “Mr. Smith Goes to Wash­ing­ton.” There, Jimmy Stew­art’s char­ac­ter single­han­dedly uses a fili­buster to stop a corrupt piece of legis­la­tion favored by special interests. The real­ity, however, is that in 1939, the year Frank Capra filmed “Mr. Smith Goes to Wash­ing­ton,” there were zero fili­busters in the Senate.

For the entire nine­teenth century, there were only 23 fili­busters. From 1917 – when the Senate first adop­ted cloture rules for ending debate – until 1969, there were fewer than 50. In other words, over a 52 year period, there was an aver­age of less than one fili­buster a year. In contrast, 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.

Let me give you another compar­ison. Accord­ing to one study, in the 1960s, just eight percent of major bills were fili­bustered. Last Congress, 70 percent of major bills was targeted.

The fact is in success­ive Congresses – and I must admit, neither party has clean hands – Demo­crats and Repub­lic­ans – have ratcheted up the level of obstruc­tion­ism to the point where 60 votes have become a de facto require­ment to even bring up a bill for consid­er­a­tion. What was once a proced­ure used rarely and judi­ciously has become an almost daily proced­ure used routinely and reck­lessly.

* * * * *

The prob­lem, however, goes beyond the sheer number of fili­busters.

First, this once rare tactic is now used or threatened to be used on virtu­ally every meas­ure and nominee, even those that enjoy near-univer­sal support. As Norm Ornstein wrote, “[t]he Senate has taken the term ‘delib­er­at­ive’ to a new level, slow­ing not just conten­tious legis­la­tion but also bills that have over­whelm­ing support.”

In this Congress, the Repub­lican minor­ity fili­bustered a motion to proceed to a bill to extend unem­ploy­ment compens­a­tion. After grind­ing the Senate to a halt, from Septem­ber 22 through Novem­ber 4, the bill passed 98–0. In other words, the minor­ity fili­bustered a bill they fully inten­ded to support just to keep the Senate from conduct­ing other busi­ness. Like­wise, for nearly eight months, the minor­ity fili­bustered confirm­a­tion of Martha John­son as Admin­is­trator of the General Services Admin­is­tra­tion, certainly a relat­ively non-contro­ver­sial posi­tion; she was ulti­mately confirmed 96–0. And, for nearly five months, the minor­ity fili­bustered confirm­a­tion of Barbara Keenan to the Fourth Circuit Court of Appeals; she was ulti­mately confirmed 99–0.

Second, the fili­buster has also increas­ingly been used to prevent consid­er­a­tion of bills and nomin­ees. Rather than serve to ensure the repres­ent­a­tion of minor­ity views and to foster debate and delib­er­a­tion, the fili­buster increas­ingly has been used to assert the tyranny of minor­ity views and to prevent debate and delib­er­a­tion. It has been used to defeat bills and nomin­ees without their ever receiv­ing a discus­sion on the floor. In other words, because of the fili­buster, the Senate – formerly renowned as the world’s “greatest delib­er­at­ive body” – cannot even debate import­ant national issues.

I mentioned that there have already been nearly 100 fili­busters in this Congress. That is not a cold stat­istic. Each fili­buster repres­ents the minor­ity’s power to prevent the major­ity of the people’s repres­ent­at­ives from debat­ing legis­la­tion, voting on a bill, or giving a nominee an up-or-down vote. Under current rules, if 41 senat­ors do not like a bill and choose to fili­buster, no matter how simple or noncon­tro­ver­sial, no matter that it may have the support of a major­ity of the House, a major­ity of the Senate, a major­ity of the Amer­ican people, and the Pres­id­ent, that bill or nominee is blocked from even coming before the Senate for consid­er­a­tion.

In other words, because of the fili­buster, even when a party has been resound­ingly repu­di­ated at the polls, that party retains the power to prevent the major­ity from govern­ing and carry­ing out the agenda the public elec­ted it to imple­ment.

* * * * *

At issue is a prin­ciple at the very heart of repres­ent­at­ive demo­cracy – major­ity rule. Alex­an­der Hamilton, describ­ing the under­ly­ing prin­ciple anim­at­ing the Consti­tu­tion, wrote that “the funda­mental maxim of repub­lican govern­ment . . . requires that the sense of the major­ity should prevail.”

The Framers, to be sure, put in place import­ant checks to temper pure major­ity rule. For example, there are Consti­tu­tional restraints to protect funda­mental rights and liber­ties. The Framers, moreover, imposed struc­tural require­ments. For example, to become law, a bill must pass both houses of Congress and is subject to the Pres­id­ent’s veto power.

The Senate itself is a check on pure major­ity rule. As James Madison said, “The use of the Senate is to consist in its proceed­ing with more cool­ness, with more system, and with more wisdom, than the popu­lar branch.” To achieve this purpose, citizens from small states have the same repres­ent­a­tion in the Senate as citizens of large states. Further, Senat­ors are elec­ted every six years.

These provi­sions in the Consti­tu­tion are ample to protect minor­ity rights and restrain pure major­ity rule. What is not neces­sary, what was never inten­ded, is an extra-Consti­tu­tional empower­ment of the minor­ity through a require­ment that a super­ma­jor­ity of Senat­ors be needed to enact legis­la­tion, or even to consider a bill.

Such a veto leads to domin­a­tion by the minor­ity. As former Repub­lican leader Bill Frist noted, the fili­buster “is noth­ing less than a formula for tyranny by the minor­ity.”

In fact, the Consti­tu­tion was framed and rati­fied to correct the glar­ing defects of the Articles of Confed­er­a­tion – which required a two-thirds super­ma­jor­ity to pass any law, and unan­im­ous consent of all states to make any amend­ment. The exper­i­ence under the Articles had been a dismal fail­ure – and one that the Framers were determ­ined to remedy under the new Consti­tu­tion. It is not surpris­ing that the Founders expressly rejec­ted the idea that more than a major­ity would be needed for most decisions.

In fact, the framers were very clear about circum­stances where a super­ma­jor­ity is required. There were only five: Rati­fic­a­tion of a treaty, over­ride of a veto, votes of impeach­ment, passage of a Consti­tu­tional amend­ment, and the expul­sion of a member.

Seems clear, to those who worship at the shrine of “original intent,” that if the Framers wanted a super­ma­jor­ity for moving legis­la­tion, they would have done so.

But, a super­ma­jor­ity require­ment for all legis­la­tion and nomin­ees would, as Alex­an­der Hamilton explained, mean that a small minor­ity could “destroy the energy of govern­ment.” Govern­ment would be, in Hamilton’s words, subject to the “caprice or arti­fices of an insig­ni­fic­ant, turbu­lent, or corrupt junta.” I would not call the Repub­lican minor­ity in the Senate a “turbu­lent or corrupt junta,” but Hamilton’s point is well taken.

* * * * *

At this point, I do want to digress for a moment and discuss the current Repub­lican minor­ity. Much of the fault lies with the Minor­ity Leader. In the past, Repub­lican lead­ers have had to deal with extrem­ists in their ranks who wanted to block everything – Jesse Helms is a good example. But, lead­ers, includ­ing Bob Dole, Trent Lott and Bill Frist, while giving members like Helms a long leash, at some point said “enough!” They made clear that the Senator was acting outside the goal­posts and that it would not be toler­ated. What is differ­ent, today, is that the Minor­ity Leader is not will­ing to constrain the most extreme elements within his caucus.

James Madison also rejec­ted a require­ment of super­ma­jor­ity rule to pass legis­la­tion. He said “it would no longer be the major­ity that would rule, the power would be trans­ferred to the minor­ity.”

Unfor­tu­nately, because of the fili­buster, Madis­on’s warn­ing has become the every­day real­ity of the Senate. And, because of the reck­less use of the fili­buster, our govern­ment’s abil­ity to legis­late and address prob­lems is severely jeop­ard­ized.

That is why I have intro­duced legis­la­tion to amend the Stand­ing Rules of the Senate to permit a decreas­ing major­ity of Senat­ors to invoke cloture on a given matter. On the first cloture vote, 60 votes would be needed to end debate. If the motion does not get 60 votes, a Senator can file another cloture motion and two days later have another vote; that vote would require 57 votes to end debate. If cloture is not obtained, a Senator can file another cloture motion and wait two more days; in that vote, 54 votes would be required to end debate. If cloture is still not obtained, a Senator could file one more cloture motion, wait 2 more days, and – at that point – just 51 votes would be needed to move to the merits of the bill.

Under my proposal, a determ­ined minor­ity could slow down any bill for as much as 8 days. Senat­ors would have ample time to make their argu­ments and attempt to persuade the public and a major­ity of their colleagues. This protects the rights of the minor­ity to full and vigor­ous debate and delib­er­a­tion, main­tain­ing the very best features of the United States Senate.

As Senator George Hoar noted in 1897, the Consti­tu­tion’s Framers designed the Senate to be a delib­er­at­ive forum in which “the sober second thought of the people might find expres­sion.”

* * * * *

I also believe my proposal would encour­age a more robust spirit of comprom­ise. Right now, there is no incent­ive for the minor­ity to comprom­ise; they know they have the power to block legis­la­tion. But, if they know that at the end of the day a bill is subject to major­ity vote, they will be more will­ing to come to the table and nego­ti­ate seri­ously. Like­wise, the major­ity will have an incent­ive to comprom­ise because they will want to save time, not have to go through numer­ous cloture votes and 30 hours of debate post-cloture.

At the same time, this reform would end the current tyranny of the minor­ity, and it would restore a basic and essen­tial prin­ciple of repres­ent­at­ive demo­cracy – major­ity rule in a legis­lat­ive body. At the end of ample debate, the major­ity should be allowed to act; there would be an up-or-down vote on legis­la­tion or a nominee. As Henry Cabot Lodge stated, “[t]o vote without debat­ing is peril­ous, but to debate and never vote is imbe­cile.”

And, there is noth­ing radical about the proposal I have intro­duced. The fili­buster is not in the Consti­tu­tion. Until 1806, the Senate had a rule that allowed any Senator to make a motion “for the previ­ous ques­tion.” This motion goes back to the Brit­ish Parlia­ment and permit­ted a simple major­ity to stop debate on the pending issue and bring an imme­di­ate vote.

Further, there is noth­ing sacrosanct about requir­ing 60 votes to end debate. Article I, Section 5, Clause 2 of the Consti­tu­tion – the Rules of Proceed­ings Clause – specifies that “[e]ach House may determ­ine the rules of its proceed­ings.” Using this author­ity, the Senate has adop­ted rules and laws that forbid the fili­buster in numer­ous circum­stances. For example, the Senate has limited the fili­buster with respect to the budget, war powers, and inter­na­tional trade acts.

Simil­arly, my legis­la­tion, far from being an unpre­ced­en­ted and radical change, stands squarely within a tradi­tion of updat­ing Senate rules as appro­pri­ate to foster an effect­ive, smoothly oper­at­ing govern­ment. For example, begin­ning in 1917, the Senate has passed four signi­fic­ant amend­ments, the latest in 1975, to its Stand­ing Rules to limit the fili­buster.

It is long past time for the Senate to again to use its author­ity to restore its abil­ity to govern effect­ively and demo­crat­ic­ally and for the major­ity of the Senate to exer­cise its consti­tu­tional right.

I have intro­duced my proposal, this year, as a member of the major­ity party. The proposal, however, is one I first intro­duced in 1995, when I was a member of the minor­ity party. Thus, to use a legal term, I come with clean hands. So I want to be clear that the reforms I advoc­ate are not about one party gain­ing an undue advant­age. It is about the Senate as an insti­tu­tion oper­at­ing more fairly, effect­ively and demo­crat­ic­ally.

Even though I was in the minor­ity in 1995, I intro­duced this legis­la­tion then because I saw the begin­nings of an arms race, where each side would simply escal­ate the use of the fili­buster. You fili­bustered 20 of our bills, we are going to fili­buster 40 of yours, and so on. And, should the Demo­crats find them­selves in the minor­ity, I would not be surprised if there is a further ratchet­ing up. It is time for this arms race to end.

* * * * *

Justice William Bren­nan eloquently wrote that “The genius of the Consti­tu­tion rests not in any static mean­ing it might have had in a world that is dead and gone, but in the adapt­ab­il­ity of its great prin­ciples to cope with current prob­lems and current needs.”

The Founders adop­ted the Consti­tu­tion to enable the Amer­ican people, through their elec­ted repres­ent­at­ives, to govern. As Chief Justice Marshall made clear in McCul­loch v. Mary­land, any endur­ing Consti­tu­tion is designed to, and must be able to, “respond to the vari­ous crises of human affairs.”

Unfor­tu­nately, I do not see how we can effect­ively govern a 21st century super­power when a minor­ity of just 41 senat­ors, poten­tially repres­ent­ing less than 15 percent of the popu­la­tion, can dictate action – or inac­tion – to the major­ity of the Senate and the major­ity of the Amer­ican people. This is not demo­cratic. Certainly, it is not the kind of repres­ent­at­ive demo­cracy envi­sioned and inten­ded by the Consti­tu­tion.

Now, I could go on. But I want to leave some time for ques­tions and dialogue. These remarks are billed as a lecture. You know, I always had a special place in my heart for profess­ors who let class out early.

And I’m reminded of an old story about Hubert Humphrey, who was famous for his humane­ness – and also his long-winded­ness. One time, he was asked to make brief remarks to a group of farm­ers. He spoke for five minutes. Then he went on for 10 minutes, 20 minutes, 30 minutes. Finally, after 45 minutes he stopped. He apolo­gized for speak­ing so long. But, as Hubert put it: “The longer I talked, the more I liked what I heard!”

So again, friends, thank you for invit­ing me to speak, this after­noon. And thank you for the tremend­ous work you are doing here at the Bren­nan Center.