Another crack at the filibuster

The U.S. Senate has not conducted any official business this week, so the American people have been at least temporarily protected from its stultifying refusal to represent them well. But the senators will eventually return — and will resume blocking judicial nominees, converting budget disagreements into crises and preventing the enactment of even the most paltry gun restrictions favored by the overwhelming majority of Americans and the clear majority of the Senate itself.

This is not the first time in its history that the Senate, by virtue of its rules, has become an impediment to the popular will. Indeed, the founders intended it to move more deliberately than the House, and not all obstruction is negative. But the combination of a deepening partisan divide, Republican exploitation of the rules and weak Democratic leadership has converted the Senate from the world’s greatest deliberative body into a persistent obstacle to sound government.

It need not be this way. The Senate makes its own rules, and it can change them. Principally at issue these days, of course, is the filibuster. To exercise a filibuster once required a senator or senators to physically hold the floor and monopolize debate, preventing a vote until the other side either relented and moved on to other business or found the 60 votes necessary to end the filibuster.

Today, senators merely need to threaten to filibuster for the majority to withdraw. That was apparent during the gun control debate, when 54 senators, a majority, voted in favor of the bill’s modest background check provision — a measure that even opponents acknowledged did not upset the 2nd Amendment because it did not limit any person’s right to own a gun — but that was not enough to overcome the threat of a filibuster.

In effect, the Senate has moved from the rare use of the filibuster to force deep consideration on matters of special significance to its routine employment, creating a de facto supermajority requirement for almost all serious legislation. In January, the leadership adopted a few small procedures — limiting filibusters to matters up for debate and allowing members of both parties to offer amendments — but stopped short of forcing filibustering senators to actually hold the floor. This page cautiously welcomed that development as an incremental reform, while warning that it was a “disappointingly small one.”

Events have upheld that disappointment. Senators need to return to their rules and amend them again. If they’re unwilling to abolish the filibuster, they must fashion limits that allow Americans to be represented by their Senate, not thwarted by it.