With Senate Democrats, led by Majority Leader Harry Reid (D-NV), publicly pushing to reform the filibuster rules in the 113th Congress, Senate Minority Leader Mitch McConnell (R-KY) took to the floor of the Senate earlier this week to loudly proclaim that filibuster reform would “poison” party relations and “undermine the very purpose of the Senate.” These comments set off an unusually personal feud between Senators Reid and McConnell on the Senate floor that carried over into a second day. But Senator McConnell’s complaints about filibuster reform epitomize the term “crocodile tears,” as it is the Senate GOP caucus, under McConnell’s leadership, that have taken abuse of the filibuster so far that they virtually ground the Senate to a halt. It is beyond time to reform the filibuster so that the U.S. Senate can become a functioning governing body again.
As explained in this informative report on the filibuster from the Congressional Research Service, filibusters stem from the fact that Senate rules place very few limits on the ability of any Senator to speak on an issue. The majority cannot force Senate action on a particular bill to proceed in the face of a Senator’s decision to filibuster it. Instead, the only real option is to invoke cloture under Senate Rule XXII. Once cloture is invoked, a 30 hour waiting period is triggered, after which time 60 Senators can vote to end debate on the matter being filibustered. And because current Senate rules allow a filibuster on both a motion to proceed to a floor vote, and on the floor vote itself, the Congressional Research Service has estimated that even legislation that has supermajority support can take 11 session days to get passed if opponents threaten a filibuster on both the motion to proceed and the floor vote.
Realizing that such delay can be useful for keeping the Senate from passing progressive legislation, the GOP has sought to use the lengthy process for halting a filibuster in order to undermine the ability of the Senate to take action on even the most non-controversial matters. Over the past six years of Democratic control of the Senate, 386 cloture motions have had to be filed, which is far higher than in any previous Congress and represents 28% of all cloture motions filed since 1917. As a result of such obstructionism, the 112th Congress had the lowest productivity since World War II, a record low 2.8% of bills submitted in the 112th Congress were passed, and the Senate has taken an average of 188 days to confirm judicial nominees for seats that are currently empty.
Given the serious impact that the GOP’s out-of-control abuse of the filibuster has caused, Winning Progressive believes that filibuster reform is an absolute necessity. We believe that such 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. As such, Senators should not be able to filibuster judicial nominees and nominees by the President for members of his or her Administration.
* 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 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. The ability to filibuster at two separate points – both on the motion to proceed and during the floor vote – 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. Specific reforms could include eliminating the ability to filibuster on motions to proceed, and shortening the 30-hour cloture waiting period.
The incoming Senate has a short window of opportunity to reform the filibuster on the first day of the 113th Congress in January, as the Senators are able to change the rules by a simple majority vote, rather than the 67% vote it takes to change the rules at other times. And Democratic Senators, led by Harry Reid and Senator Jeff Merkley (D-OR), have begun crafting a reform proposal that would likely involve both a provision requiring a filibustering Senator do actually take to the Senate floor and maintain his or her filibuster, and elimination of filibusters on motions to proceed. While those proposals are a good start, as we laid out in the four points made above, more is needed to return the Senate to being a fully functioning political body, and to allow a President to be able to properly staff federal agencies and the judiciary. And, of course, we still have to convince 51 Democratic Senators to vote for reform, despite concerns they might have about changing the Senate rules on a simple majority vote and their worries about what a reformed filibuster would mean if and when there is a Republican Senate majority in the future (that latter concern seems not very significant to us, as experience shows that the GOP would almost certainly weaken the filibuster if they were in the majority regardless of what the Democrats do now).
As such, it is important that we all do three 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.
Write a letter to the editor of your local newspaper in favor of filibuster reform that follows the principles laid out above.
3. Sign Senator Merkley’s petition in favor of filibuster reform, and urge everyone you know to do the same.