With the recent flurry of good legislation that passed Congress during the lame duck session, and the Republican takeover of the House combined with the shrinking of the Democratic majority in the next Senate to 53 votes, some may be asking whether reform of the filibuster is a good thing for progressives to push for in the new Senate. We here at Winning Progressive believe that the answer is yes – that filibuster reform, though not elimination, should be sought, and we urge you to contact your Democratic Senators and to write letters to the editor in favor of such reform.
Abuse of the filibuster was rampant in this past Senate. Faced with a 59-60 seat Democratic majority, Senate Republicans decided to use the filibuster procedures to slow things down so that as little as possible would get done. Under the current Senate rules, any single Senator can object to a bill proceeding to a full vote of the Senate. If such objection is filed, then it is up to supporters of the bill to pull 60 votes in favor of cloture. And at least 30 hours of additional debate must occur for each cloture motion, meaning that even if a filibuster is unlikely to succeed, it slows down the process considerably.
The results of the Republicans’ obstructionist approach in the Senate were stark. For example:
* The number of cloture motions that have had to be filed to break filibusters were more than double in this Senate and the immediately proceeding Senate (which also had a Democratic majority), than in any previous Senate.
* Many significant pieces of legislation – including, most recently, the DREAM Act – died in the Senate despite having majority support in both houses of Congress. As of February 2010, 290 bills had been passed in the House but languished in the Senate.
* Nearly one out of every nine federal judgeships remain vacant, and President Obama has had fewer lower-court judicial nominees confirmed than any President since before Carter.
* Dozens of Presidential nominees have been held up in the Senate, even though there are no substantive objections to most of them. Such obstructionism has limited the ability of federal agencies to carry out their jobs. For example, the Equal Employment Opportunity Commission lacked the necessary quorum to operate while a nominee was pending for 254 days, and the National Labor Relations Board had to operate with only two out of five members even while two nominees were held up in the Senate for more than 260 days.
* A single Senator – Richard Shelby (R-AL) – was able to hold up 70 Presidential nominees, including the top intelligence officers at the State Department and the Department of Homeland Security, because he was upset about possible elimination of some pork barrel spending in his state.
The good news is that there is a move afoot to reform the filibuster in the new Senate. Senator Jeff Merkley (D-OR) has set forth good principles for such reform. And every returning Democratic Senator has signed a letter calling for filibuster reform, though the letter does not endorse any specific proposals.
We believe that filibuster reform should be guided by four principles:
* Mend It, Don’t End It: We do think it is appropriate to have a properly-limited super-majority requirement for legislation in the Senate. The 60-vote filibuster requirement helps ensure some long term policy stability, which is an important value for a functioning democracy. Such a super-majority requirement can also be good for protecting progressive gains. Most progressive policy change at the national level has come in short bursts – a few years during the New Deal, a two-year period after JFK’s assassination, and the past two years under President Obama – followed by long periods of time in which there are unsuccessful efforts to turn those gains back. In some cases, those efforts to overturn progressive gains have been turned back by relying on the filibuster. Eliminating the filibuster completely would make it much harder to protect our gains over time.
* No Filibustering Presidential Nominations: While a limited super-majority requirement makes sense for legislation, it does not for President appointments. For one thing, a President should have some leeway with who he or she wants to carry out the duties the President was elected to perform, and the filibuster interferes with that. In addition, the Constitution limits the Senate’s role over Presidential nominations to “advise and consent,” which does suggests that super-majority requirements may not be appropriate. Finally, the ability of the Senate to undermine the ability of our federal judiciary and agencies to operate is effectively is highly detrimental to our country, especially in times of economic crisis like we have had over the past couple years.
* Shift the Burden to Those Who Are Filibustering: Currently, any single Senator can invoke and maintain a filibuster by objecting, even secretly. This means that there is little direct political cost for filibustering, and it is the Senators who want to break the filibuster who have to spend their time on the Senator floor trying to break the filibuster. This burden should be shifted to the filibusters, by requiring that they have 40 votes on the Senate floor at all times to maintain a filibuster.
* Speed Up the Process: The 30-hour waiting period on cloture votes just encourages the minority to filibuster everything in order to throw sand into the gears of the Senate. And the ability to filibuster legislation at multiple points, such as on amendments or motions to proceed to debate, allows for further delays. These steps should be eliminated or significantly limited in order to ensure that filibusters are based on legitimate policy concerns, not just trying to delay everything.
The incoming Senate has a short window of opportunity to reform the filibuster when it arrives in January, and such reform is critical to returning the Senate to a fully functioning political body, and to making sure that President Obama is able to properly staff federal agencies and the federal judiciary. In addition, while the returning Democratic Senators have noted their support of filibuster reform, there is also already push back from the right wing improperly suggesting that reforming the filibuster would represent some sort of an improper power grab by Senate Democrats.
As such, it is important that we do two things to make sure that filibuster reform occurs and that the public understands that such reform is the right thing to do:
1. Call your Democratic Senators and urge them to reform the filibuster when they are setting the rules for the new Senate. Especially call Senate Majority Leader Harry Reid – 202-224-3542 – to make sure he knows that we want filibuster reform.
2. Write a letter to the editor of your local newspaper in favor of filibuster reform that follows the principles laid out above. Here are links to national papers, and to newspapers in Illinois, Michigan, Ohio, and Pennsylvania.