The Senate filibuster: Time for a change

In the closing session of the 111th Congress, 53 senators agreed to allow a floor vote on letting the Bush-era tax cuts for the rich lapse. The DREAM Act, which would have put illegal immigrants who were brought to the United States as children and are now attending college or serving in the military on a path to citizenship, received even more enthusiastic support — a vote of 55 to 41. But even though the House had passed both bills, neither became law because of a Senate procedural rule that thwarts the intentions of the Founding Fathers: requiring a supermajority to end a filibuster.

FOR THE RECORD:
Filibuster: In a Jan. 2 Op-Ed on the filibuster, South Carolina Sen. Strom Thurmond was identified as Republican in 1957. He was a Democrat until 1964.

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Nothing in Article 1 of the Constitution permits the Senate to insist on a supermajority for regular legislation. The drafters were quite specific about which acts need supermajority approval. Section 7 requires a two-thirds vote to override a presidential veto. Article 2, Section 2 calls for the approval of two-thirds of the senators for treaties the president has entered into, and Article 5 requires a two-thirds vote to propose a constitutional amendment.

So how did we get into this bizarre situation? Article 1, Section 5 gives both houses the power to “determine the rules of its proceedings,” and therein lies the vexed history that has culminated in the extraordinary empowerment of 41% of the senators.

One of the grand traditions of legislative bodies has always been to encourage full and frank debate and not cut off a member who still has lots to say. Early in its existence, the House decided to limit its debates, but respect for a speaker’s right prevailed in the Senate.

But no good sentiment goes long uncorrupted. By the middle of the 19th century, some senators had seen the advantage of this courteous rule and began speaking at length and irrelevantly to block bills they didn’t like. The practice acquired a Dutch name meaning “pirate” — filibuster — and flourished.

This unfettered speechifying was allowed until 1917, when at the urging of President Woodrow Wilson, the Senate adopted a rule that a two-thirds vote could end debate. Still, Sen. Strom Thurmond (R-S.C.) was able to filibuster for 24 hours and 18 minutes against the Civil Rights Act of 1957. Eighteen years later, senators revised the rules, dropping the necessary vote for cloture, or cutting off of debate, from 66% to 60%. This change also introduced the “invisible filibuster.” Senators need not actually stand up and talk to filibuster; they just needed to indicate their intention to do so.

And thus our Constitution was amended under the guise of an accommodating rule change. Forty-one senators can and routinely do block any disliked bill before them. Even more distressing, the Senate leader often declines to bring forward bills for deliberation if he is unsure of getting 60% support. In the first two years of the Obama administration Republicans have used “the invisible filibuster’”84 times, more than in all the Congresses of the 1950s and 1960s put together. A practice that began as a courtesy to Senate speakers has morphed into a fundamental challenge to the principle of majority voting.

Senators from both parties have tried to introduce some sanity into this Senate procedure since Henry Clay proposed allowing the majority to close debate in 1841. But the stark advantages to Democrats and Republicans of blocking legislation when they are in the minority has proved too compelling to give up.

Recently, though, filibuster rules have gathered critics like barnacles on a boat bottom. Since April 2009, the Senate Rules Committee has summoned dozens of scholars, parliamentarians and senators, active and former, to explore the filibuster and its consequences, in hearings that ended in September. Citizens groups, including Common Cause and the Sierra Club, are mobilizing for a filibuster fight. Anti-filibuster websites are popping up like daisies on a June morning. On Dec. 18, 56 Democrats and independents sent a letter to Senate Majority Leader Harry Reid (D-Nev.) urging that he “takes steps to bring these abuses to our rules to an end.” And Sen. Tom Udall (D-N.M.) is leading an effort to act on reforms on Jan. 5, when the new Congress convenes.

It’s time our senators hear from their constituents.

We, the citizens, are the losers, and we have a right to have our votes count. Majority rule is the bedrock principle of democracy. Giving all states two senators — regardless of their population — was the price paid for securing a constitution, to the disappointment of many Founding Fathers. Today no such exigency exists to prevent the senators of the 112th Congress, when they convene this week, from honoring the will of the voters.

Joyce Appleby is a professor of history emerita at UCLA and the author of “The Relentless Revolution: a History of Capitalism.”