Fixing the filibuster

Recent reforms will curtail abuse, and they should go further — but no so far that they invalidate an important Senate tradition

March 10, 2013|By Ronald Weich

The filibuster is back in the news, thanks to Sen. Rand Paul's nearly 13-hour talkathon on U.S. drone policy last week. Putting aside the merits of Mr. Paul's national security views, his feat of endurance was in the best tradition of the Senate. He used his right to unlimited debate on the Senate floor to draw the attention of his fellow citizens to an issue of profound national importance.

Other recent filibusters are less noble. Last month, senators used the rules to delay, for little apparent reason, confirmation of their former colleague Chuck Hagel to be secretary of defense. And more recently, the Senate minority blocked indefinitely the nomination of a highly qualified woman, Caitlin Halligan, to the D.C. Court of Appeals, the second most important court in the country and one to which the Senate has yet to confirm an Obama nominee.

The fact is, some filibusters are good and some are abusive. The rules should be reformed, but reformers should be careful not to go too far. Happily, the Senate earlier this year passed two resolutions by broad, bipartisan margins that will speed work on widely supported legislation and nominations without gagging the likes of Senator Paul or others inspired by Jimmy Stewart in "Mr. Smith Goes to Washington."

Short-sighted commentators complain that these reforms are inadequate. Some of these critics are either forgetful or hypocritical, because they took the opposite side of the argument in 2005, when Senate Republicans threatened to employ the "nuclear option" to circumvent the filibuster and jerry-rig confirmation of President George W. Bush's judicial nominees.

In order to evaluate whether the new Senate resolutions are up to the task, we need to understand what the task was. Those who believe the Senate should always be run by majority vote are naturally disappointed by the new rules, because this fundamental characteristic of the Senate did not change. But pure majority rule is not the goal to which Majority Leader Harry Reid aspired. As Mr. Reid said, "I'm not personally, at this stage, ready to get rid of the 60-vote threshold."

The filibuster has deep roots in the Senate and in American political culture. As Robert Caro detailed in his towering work "Master of the Senate," the upper chamber has long differed from the House of Representatives in recognizing the privilege of extended debate. The early Senate consciously excised from its rules a mechanism to curtail debate. Later, the body adopted a process of "cloture" by which a supermajority of members can limit debate. The threshold for cloture used to be higher but is now three-fifths of the 100-member body. Absent abuse, this 60-vote threshold should not be a daunting obstacle for all but the most divisive subjects.

The practical effect of the cloture threshold is to require a larger, typically bipartisan group of senators to agree that a bill or nomination should move forward in the legislative process. The filibuster therefore protects the rights of the Senate minority and the citizens they represent. When functioning properly, it encourages moderation and rewards consensus, values that our polarized political system badly needs.

To be sure, filibusters have sometimes been deployed for despicable reasons, such as the campaign by Southern Democrats to kill civil rights legislation in the 1950s and early 1960s. But when used responsibly, the filibuster is consistent with other features of the federal government, such as bicameralism and the presidential veto power, mechanisms to cool momentary passions and ensure careful review before the national government acts.

Some object to the filibuster because it appears anti-democratic: Why shouldn't a simple majority always prevail? But that sentiment ignores the deliberately anti-democratic nature of the Senate, in which each state — from sparsely populated Wyoming to population-rich California — is represented by two senators. As a mathematical matter, 51 senators constitute a majority of the 100-member body. But if those 51 senators hail from less-populous states, they may represent a minority of Americans, while the 41 senators who use a filibuster to block action may be speaking for a majority.

What Mr. Reid set out to reform was filibuster abuse — the distressing willingness of some senators to throw sand in the Senate's gears because they can. Today, individual senators routinely "hold" noncontroversial bills and nominees to obtain leverage in unrelated battles, or just to be contrary. Senate leaders can eventually overcome such lone-wolf tactics through the cloture process, but at too great a cost of time and legislative energy.

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