Fix the Filibuster

George Washington once referred to the Senate as the “saucer that cools the tea” — his characterization of a body designed to temper the “hot” legislation passed in the House of Representatives. The framers saw the House as too accommodating of the people’s whims, so they erected what James Madison called a “necessary fence” against the “fickleness and passion” that could influence it.

That’s why the Senate minority enjoys much more power than its counterpart in the House. The chamber was intended to nurture the deliberative process and foster careful consideration of each bill. Thus, its minority has tools to ensure its voice is heard — the filibuster being chief among them. It’s a framework that serves our nation well when it works, as it should. But when the minority abuses its power — as it has for much of the last decade — the Senate essentially becomes an obstacle through which very little can pass.

Today, the Senate isn’t where the tea cools — it’s where the tea freezes. Far too often, meaningful legislation that could move our country forward isn’t even debated because both parties have gamed the system. Thanks in large part to an explosive uptick in ideologically driven filibusters, the people’s voice has been drowned out of Congress and our “necessary fence” has become an impenetrable wall.

In the 111th Congress, cloture motions (the only procedure by which a filibuster can be broken) were filed 137 times, only two short of the record 139 filed during the 110th Congress. These figures more than double the 68 cloture motions filed during the 109th Congress. To add some historical context, only 18 cloture motions were filed during the entire 30-year period between the 73rd and 87th Congresses. Even as recently as the 101st Congress, cloture was only moved for 38 times.

The problem is that cloture requires 60 votes to be invoked. With filibusters increasing, virtually no substantial legislation passes the Senate absent a supermajority. This bottleneck is not what the founders intended.

Even more troubling than the number of recent filibusters is the way in which they are employed. Gone are the days when senators had to hold the floor to prevent a yea or nay vote (think of the 1939 film “Mr. Smith goes to Washington”). Today, senators block legislation via virtual filibusters that allow other business to be conducted while the filibuster remains operative. Filibusters have also been used as stalling techniques or even to prevent debate on legislation altogether — an act that strikes at the very heart of the Senate’s supposed deliberative role.

Worst of all, filibusters have become the foremost mechanism by which partisan squabbling obstructs the policy process. As a result, we’ve seen fights over stimulus spending threaten unemployment benefits for millions of laid-off workers, and battles over gays in the military delay healthcare funds for 9/11 responders.

Because of all this, there is a movement afoot to reform filibuster rules and ensure that the people’s will is appropriately reflected in the Senate. As one of the 12 reforms contained in its “Make Congress Work” campaign, a nonpartisan group called No Labels has proposed a measure that would end virtual filibusters, as well as those on motions to proceed to debate. With these reforms in place, a sole senator seeking to halt action on a bill could only do so by taking the floor and holding it through sustained debate. At the same time, senators would no longer be permitted to obstruct consideration of a bill on its merits.

Because filibusters are now commonly introduced to block both debate and votes on passage of bills, one can conclude that these reforms would curb the current filibuster binge by half (at least) — and at a time when we need it most. While some argue that filibuster abuse is a problem largely relegated to judicial and executive branch nominations, National Journal estimates that no fewer than eight “major pieces of legislation” were “entirely halted” by filibusters during the 110th Congress. A quick look at the headlines out of Washington this year is enough to see that the 112th Congress likely won’t fare much better when it comes to tackling the significant issues affecting American lives.

The filibuster’s deliberative purpose has been hijacked by partisan objectives and the time has come for reform. For despite our founders’ fears about majority rule, our government simply doesn’t work without it.

Galston, a No Labels co-founder, is a senior fellow in governance studies at the Brookings Institution.


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