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Testimony

Testimony on Filibuster Reform submitted to the Senate Committee on Rules and Administration

Testimony submitted to the Senate Committee on Rules and Administration in favor of reforming the filibuster in order to put an end to Senate dysfunction.

  • Mimi Murray Digby Marziani
  • Diana Lee
Published: April 22, 2010

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Testi­mony of Mimi Marzi­ani & Diana Lee

Bren­nan Center for Justice At NYU School Of Law

Submit­ted To The U.S. Senate Commit­tee on Rules & Admin­is­tra­tion

For The Hear­ing “Examin­ing the Fili­buster: History Of The Fili­buster 1789–2008”

April 22, 2010

 

Mr. Chair­man and members of the subcom­mit­tee:

Over the last decade, it has become increas­ingly evid­ent that Senate proced­ures have been used to prevent substant­ive decision-making rather than to promote delib­er­a­tion and debate, as inten­ded.  Recently, this troub­ling trend has reached a break­ing point – we are now deal­ing with a differ­ence in degree that has become a differ­ence in kind.  We applaud the decision of this commit­tee to explore this issue and to contem­plate appro­pri­ate reform.[1]

Today, witnesses will discuss the fili­buster’s history.  You will learn that our coun­try’s Framers inten­ded that major­ity voting be used to conduct regu­lar Senate busi­ness.[2]

Witnesses will explain that the Senate has a vari­ety of struc­tural features meant to facil­it­ate delib­er­a­tion – such as its smal­ler size, longer terms, older members, and egal­it­arian

struc­ture.[3]  An abso­lute right to unlim­ited debate, by contrast, is not part of the consti­tu­tional design.[4]

Witnesses will also describe the Senate’s devol­u­tion into an increas­ingly partisan insti­tu­tion with a decreas­ing commit­ment to comity.[5]  This change in culture, coupled with scarce floor time, has created incent­ives to fili­buster – most Senat­ors, espe­cially those in the minor­ity party, now calcu­late that the bene­fits of fili­bus­ter­ing far outweigh its costs.[6]  Predict­ably, the use of fili­busters spiked.  In the 110th Congress, for instance, 70 percent of major legis­la­tion was affected by fili­buster.[7]  In the modern Senate, for the first time in history, fili­busters are so much the norm that a super­ma­jor­ity vote of 60 is assumed neces­sary.[8]     

Finally, you will learn of the centur­ies-old fight to curb abus­ive dilat­ory tactics through reform of the Senate’s Rules.[9]  Witnesses will explain that schol­ars, Senat­ors, and several Vice-Pres­id­ents have long argued that the Senate Rules – by expressly impos­ing the rules upon future Senates, includ­ing the require­ment of a two-thirds vote to amend the rules – uncon­sti­tu­tion­ally binds each new Congress.[10]  This, in effect, improp­erly entrenches the super­ma­jor­ity vote now required by Senate Rule XXII to evoke cloture and force a substant­ive vote.     

While it is import­ant to under­stand the fili­buster’s complic­ated history, it is imper­at­ive to recall the larger picture of what is at stake.  The current system – dictated by the constant threat of fili­buster – blunts legis­lat­ive account­ab­il­ity to voters.  The Commit­tee should look

beyond the fili­buster’s affect on specific legis­la­tion or on the relat­ive strength of polit­ical parties to assess its impact on the core demo­cratic value of account­ab­il­ity.  Our Consti­tu­tion is ordained and estab­lished by “We the People” and our govern­ment is “a govern­ment of the people.”[11]  To prop­erly exer­cise our right to choose, voters must be able to weigh the choices made by legis­lat­ors. A dysfunc­tional system marked by grid­lock, para­lysis and minor­ity vetoes makes genu­ine choice impossible.  

Polit­ical Account­ab­il­ity is a Core Demo­cratic Value

In fram­ing a govern­ment which is to be admin­istered by men over men, the great diffi­culty lies in this:  you must first enable the govern­ment to control the governed; and in the next place oblige it to control itself. A depend­ence on the people is, no doubt, the primary control on the govern­ment. . .  .[12]

Polit­ical account­ab­il­ity is a neces­sary part of our system of repres­ent­at­ive govern­ment by design.  For our demo­cracy to prop­erly func­tion, the Amer­ican people must be able to monitor elec­ted offi­cials and hold them respons­ible for their decisions.  We do this by voting and through other forms of polit­ical parti­cip­a­tion – for instance, by speak­ing out in favor or in protest of govern­ment action, by lobby­ing elec­ted offi­cials, and by asking the courts to check unlaw­ful govern­mental activ­ity when it harms us.  Indeed, this is why our Consti­tu­tion protects polit­ical expres­sion so completely:  “The protec­tion given speech and press was fash­ioned to assure unfettered inter­change of ideas for the bring­ing about of polit­ical and social changes desired by the people.”[13]     

The Supreme Court has repeatedly emphas­ized that demo­cracy requires elec­ted offi­cials to be answer­able to voters for their policy choices.[14]  Cook v. Gralike, a 2001 case chal­len­ging a Missouri consti­tu­tional provi­sion requir­ing that a so-called “scar­let letter” label be used to

identify federal candid­ates who had opposed legis­lat­ive term limits, provides one example.[15]  There, a unan­im­ous Court inval­id­ated the provi­sion.  Justice Kennedy, writ­ing in concur­rence, pinpointed the account­ab­il­ity prob­lem created by Missour­i’s law:

[F]reedom is most secure if the people them­selves . . . hold their federal legis­lat­ors to account for the conduct of their office.  If state enact­ments were allowed to condi­tion or control certain actions of federal legis­lat­ors, account­ab­il­ity would be blurred, with the legis­lat­ors having the excuse of saying that they did not act in the exer­cise of their best judg­ment but simply in conform­ance with a state mandate. . . .  Neither the design of the Consti­tu­tion nor sound prin­ciples of repres­ent­at­ive govern­ment are consist­ent with the right or power of a State to inter­fere with the direct line of account­ab­il­ity between the National Legis­lature and the people who elect it.[16]  

Account­ab­il­ity mech­an­isms ensure that our repres­ent­at­ives fulfill their duty to act for the broader public good rather than for personal or partisan gain.[17]  Account­ab­il­ity like­wise ensures the consent of the governed; without it, govern­ment loses its legit­im­acy.[18]  For these reas­ons, “[a]ll theor­ies of repres­ent­at­ive demo­cracy require, at a minimum, that those who exer­cise power be regu­larly account­able through elec­tions to those they repres­ent; account­ab­il­ity is a neces­sary, even if not suffi­cient, condi­tion of demo­cracy.”[19]

The Modern Fili­buster Blunts Legis­lat­ive Account­ab­il­ity

The Senate’s current system, marked by constant fili­bus­ter­ing, under­mines legis­lat­ive account­ab­il­ity in a number of ways.  To start, fili­busters blur who is respons­ible for the Senate’s fail­ure to address prob­lems.  Voters are left to wonder: Should we fault the major­ity for fail­ing to over­ride the fili­buster or should we hold the minor­ity respons­ible for obstruct­ing the major­ity’s will?  Who is truly to blame? 

Simil­arly, a success­ful fili­buster prevents Senat­ors from enga­ging in genu­ine decision-making.  Rather than being forced to take a stand on a partic­u­lar policy, Senat­ors cast a proced­ural vote concern­ing whether to invoke cloture and end debate.  When cloture fails and a substant­ive vote is never taken, constitu­ents are left to guess how their repres­ent­at­ives would have voted on the under­ly­ing policy matter, thereby further­ing the inform­a­tion defi­cits that already plague the elect­or­ate.[20]  Moreover, as we saw in the recent debate over health care reform, a relent­less focus on proced­ure can over­shadow more import­ant discus­sion about substance.[21]  

Even worse, today’s “stealth” or “phantom” fili­busters[22] are often silent, private affairs.  No longer do fili­bus­ter­ing Senat­ors take the floor and speak until they are phys­ic­ally unable to fili­buster any longer.[23]  Now, a fili­buster typic­ally begins when a Senator or group of Senat­ors signals their intent to fili­buster – which can be done by a private conver­sa­tion with the major­ity leader or by quietly placing a bill or nomin­a­tion on hold.  Given the modern Senate’s scarce floor time, this threat is usually enough to table the disputed issue until the dissent­ing Senat­ors cave or until there are defin­itely enough votes to invoke cloture.[24]  Accord­ingly, in any given situ­ation, it can be very diffi­cult – if not impossible – to discern who is behind the obstruc­tion.  This routine lack of trans­par­ency diffuses legis­lat­ive account­ab­il­ity even further.

**************

We encour­age you to continue this search­ing assess­ment of the func­tion­ing of the Senate.  Public trust in govern­ment rises and falls based, in part, on how decisions are made.   As this Commit­tee works to remedy this situ­ation, we hope that you consider the ways in which Senate dysfunc­tion harms our demo­cracy and focus on solu­tions that advance demo­cratic values.

 


[1] The Bren­nan Center for Justice at NYU School of Law is a nonpar­tisan law and policy insti­tute that focuses on funda­mental issues of demo­cracy and justice.  Mimi Marzi­ani is coun­sel and Katz Fellow at the Bren­nan Center. Diana Lee is a researcher at the Center and special assist­ant to the Center’s exec­ut­ive director.

[2] After witness­ing frequent grid­lock in the Contin­ental Congress due to the numer­ous super­ma­jor­it­arian require­ments imposed by the Articles of Confed­er­a­tion, the Framers decided that a super­ma­jor­ity vote was appro­pri­ate only in seven, extraordin­ary situ­ations – which they specific­ally listed in the Consti­tu­tion.  The Consti­tu­tion also specifies that a simple major­ity “shall consti­tute a Quorum to do Busi­ness.”  Article I, Section 3, Clause 4 provides further support.  That clause, which states that the Vice Pres­id­ent “shall have no Vote, unless [the Senate] be equally divided,” neces­sar­ily assumes major­ity voting rules.  The Feder­al­ist Papers also illus­trate the Framers’ commit­ment to major­it­ari­an­ism. See Cath­er­ine Fisk & Erwin Chemer­insky, The Fili­buster, 29 Stan. L. Rev. 181, 239–241 (1997); Sarah Binder & Steven Smith, Polit­ics or Prin­ciple? Fili­bus­ter­ing in the United States Senate 30–33 (1997); see also The Feder­al­ist No. 22, at 119–121 & No. 75, at 415–417 (Alex­an­der Hamilton) (Barnes & Noble Ed., 2006); The Feder­al­ist No. 58, at 326–237 (James Madison) (Barnes & Noble Ed., 2006).

[3] U.S. Consti­tu­tion. Art. I, Sec. 3; Steven Smith & Gerald Gamm, The Dynam­ics of Party Govern­ment in Congress, in Congress Recon­sidered 144–145 (8th Ed. 2008).

[4] See Binder & Smith, supra n. 2, at 29–39.

[5] See Barbara Sinclair, The New World of U.S. Senat­ors, in Congress Recon­sidered 2–5 (9th Ed. 2009).

[6] See Sinclair, supra n. 5, at 6–8; see also Binder & Smith, supra n. 1, at 15–19.  

[7] Sinclair, supra n. 5, at Table 1–2.

[8]  Histor­ic­ally, policy-makers assumed that 51 votes would be enough to pass even the most conten­tious legis­la­tion.  For instance, in a Decem­ber 8, 1964 memo concern­ing the Medi­care bill, Mike Manatos wrote to Lyndon John­son’s campaign director “…if all our support­ers are present and voting, we would win by a vote of 55 to 45.”  Memor­andum by Mike Manatos to Larry O’Brien (Dec. 8, 1964), avail­able at   http://voices.wash­ing­ton­post.com/ezra-klein/obri­en­cropped.jpg.  Frank­lin Roosevelt’s notori­ous attempt to pack the Supreme Court provides another example.  Then-U.S. Attor­ney General Homer Cummings voiced public­ally that the admin­is­tra­tion’s posi­tion was “prom­ising” when he learned of 53 support­ive votes.  See Jeff Shesol, Supreme Power 300 (2010).  By contrast, a recent New York Times article repor­ted, “[t]o get the 60 votes needed to pass their bill, Demo­crats scrapped the idea of a govern­ment-run public insur­ance plan.”  Robert Pear, Nego­ti­at­ing to 60 Votes, Comprom­ise by Comprom­ise, N.Y. Times, Dec. 20, 2009.  

[9] See Martin Gold & Dimple Gupta, The Consti­tu­tional Option to Change Senate Rules and Proced­ures: A Major­it­arian Means to Over­come the Fili­buster, 28 Harv. L. & Pub. Pol’y 205, 217–60 (2004); see also Fisk & Chemer­insky, supra n. 2, at 209–213.

[10] See Gold & Gupta, supra n. 9, at 217–60; Fisk & Chemer­insky, supra n. 2, at 246–52; Aaron-Andrew Bruhl, Bury­ing the 'Continu­ing Body’ Theory of the Senate, Iowa L. Rev. (forth­com­ing) (manu­script at 29–32), avail­able at http://ssrn.com/abstract=1427456; see also Senator Tom Udall, Speech on the Senate Floor (Jan. 25, 2010), avail­able at http://tomud­all.senate.gov/files/docu­ments/Speeches/TheCon­sti­t­u­tion­al­Op­tion.pdf; Senator Orrin Hatch, Crisis Mode: A Fair and Consti­tu­tional Option to Beat the Fili­buster Game, Nat’l Rev., Jan. 12, 2005, avail­able at http://old.nation­alre­view.com/comment/hatch200501120729.asp.

[11] McCul­loch v. Mary­land, 17 U.S. 316, 404–05 (1819) (“The govern­ment of the Union . . . is emphat­ic­ally and truly, a govern­ment of the people. In form, and in substance, it eman­ates from them. Its powers are gran­ted by them, and are to be exer­cised directly on them, and for their bene­fit.”).

[12] The Feder­al­ist No. 51, at 288 (James Madison) (Barnes & Noble Ed., 2006).

[13] Roth v. United States, 354 U.S. 476, 484 (1957).

[14] See Jane Schac­ter, Ely and the Idea of Demo­cracy, 57 Stan. L. Rev. 737, 742–45 (2004) (survey­ing “account­ab­il­ity-rein­force­ment cases”); see, e.g., Cook v. Gralike, 531 U.S. 510 (2001) (discussed below); Printz v. United States, 521 U.S. 898, 920 (1997) (“The Consti­tu­tion thus contem­plates that a State’s govern­ment will repres­ent and remain account­able to its own citizens.”); New York v. United States, 505 U.S. 144, 168 (1992) (inval­id­at­ing federal “command­eer­ing” provi­sion because “where the Federal Govern­ment compels States to regu­late, the account­ab­il­ity of both state and federal offi­cials is dimin­ished”); Missouri v. Jenkins, 495 U.S. 33, 69 (1990) (“In our system ‘the legis­lat­ive depart­ment alone has access to the pock­ets of the people’ . . . for it is the Legis­lature that is account­able to them and repres­ents their will.”). 

[15] 531 U.S. 510 (2001).

[16] Id. at 528.

[17] See Glen Staszewski, Reason-Giving and Account­ab­il­ity, 93 Minn. L. Rev. 1253, 1256–60 (2009) (explain­ing import­ance of legis­lat­ive account­ab­il­ity within paradigms of legal real­ism and plur­al­ism theor­ies).

[18] See Frances Hill, Putting Voters First: An Essay on the Juris­pru­dence of Citizen Sover­eignty in Federal Elec­tion Law, 60 U. Miami L. Rev. 155, 159 (2006).

[19] Richard Pildes, The Consti­tu­tion­al­iz­a­tion of Demo­cratic Polit­ics, 118 Harv. L. Rev. 28, 44 (2003).      

[20] Schac­ter, supra n. 14, at 757 (“One need not demean the broad public to say that research has over­whelm­ingly indic­ated that many voters simply don’t know very much about legis­lat­ive policy or polit­ics.”) & n.90 (citing vari­ety of stud­ies).

[21] See, e.g., David Herszen­horn & Robert Pear, Demo­crats Consider New Moves for Health Bill, N.Y. Times, March 17, 2010, at A18, avail­able at http://www.nytimes.com/2010/03/17/health/policy/17health.html (“As lawmakers clashed fiercely over major health care legis­la­tion on the House floor, Demo­crats struggled Tues­day to defend proced­ural short­cuts they might use to win approval for their propos­als in the next few days.”); Janet Hook & Noam Levey, Demo­crats May Use Short­cut to Pass Health­care Over­haul, L.A. Times, March 17, 2010, avail­able at http://www.latimes.com/features/health/la-na-obama-health17–2010­mar17,0,6631846.story?page=1 (“In the face of Repub­lican attacks Tues­day, lead­ing Demo­crats defen­ded a contro­ver­sial endgame maneuver that would allow them to pass the Senate version of a health­care over­haul without taking a direct vote on the legis­la­tion’s most divis­ive provi­sions.”).

[22] See Fisk & Chemer­insky, supra n. 2, at 200–09 (describ­ing creation of modern, “stealth” fili­buster); David Repass, Make My Fili­buster, N.Y. Times, March 2, 2009, at A23, avail­able at http://www.nytimes.com/2009/03/02/opin­ion/02Re­Pass.html (“The mere threat of a fili­buster has become a fili­buster, a phantom fili­buster.  Instead of need­ing a suffi­cient number of dedic­ated senat­ors to hold the floor for many days and nights, all it takes to block move­ment on a bill is for 41 senat­ors to raise their little fingers in oppos­i­tion.”).   

[23] In the 1960s, as a response to repeated civil rights fili­busters, then-major­ity leader Mike Mans­field developed a “two-track system” for hand­ling floor debate.   Unlike fili­busters of the past, which delayed all Senate busi­ness during the course of any prolonged debate, the new system limited the time to debate fili­bustered legis­la­tion, thereby allow­ing new busi­ness to continue.  This change, in turn, elim­in­ated the type of all-night debate sessions famously depic­ted in Mr. Smith Goes to Wash­ing­ton.   Over time, the fili­buster evolved from this two-track system into the phantom affair it is today.  See Binder & Smith, supra n. 2, at 185–186; Fisk & Chemer­insky, supra n. 2, at 201.    

[24] See Smith & Gamm, supra n. 3, at 232 (“In today’s Senate, the threat of a fili­buster is usually suffi­cient to keep a bill off the floor.”); Cong. Research Service, Fili­busters and Cloture in the Senate 22–23 (2003) (describ­ing typical responses to fili­buster threats); Fisk & Chemer­insky, supra n. 2, at 204–05 (same); Sarah Binder & Thomas Mann, Slay­ing the Dino­saur: The Case for Reform­ing the Senate Fili­buster, 13 Brook­ings Rev., Summer 1995, at 44 (“The mere threat to fili­buster is enough to block action on legis­la­tion poten­tially favored by a sizable major­ity.”).