On Jan. 3, there’s a chance that the U.S. Senate will return to some semblance of a functioning legislative body. That day a majority of senators could vote to eliminate Rule XXII, which authorizes the notorious filibuster.
Article 1, Section 6 of the Constitution, which gives to both houses of Congress the determination of “the rules of its proceedings,” offers that opportunity on the first day of each new Congress.
The filibuster, which requires a supermajority to cut off debate, entered the Senate’s rules in 1807 as a courtesy to speakers. Since then, Rule XXII has metastasized into a procedural vise that threatens the democratic foundation of our government.
The filibuster lost all semblance of being an aid to discussion in the middle of the 19th century, when some senators began using the rule to hold the floor for lengthy speeches to prevent voting on bills they didn’t like.
Until 40 years ago, this partisan weapon was used sparingly — no more than 10 times in any two-year congressional session. Then, in the 1970s, frustrated by even that small number of interminable talkathons, senators introduced the concept of the “silent filibuster” which enabled members to merely indicate that they intended to filibuster to block a measure.
Since 2007, the Republican minority has expanded the use of the filibuster beyond any recognizable procedural rule. In the 110th, 111th and 112th Congress, they filibustered 380 times. Today no legislation can be introduced, no nominations considered, no votes taken without a supermajority of 60 votes.
This formidable, partisan tactic has become so common that bills like the Dream Act and the Paycheck Fairness Act have failed in the Senate despite having enough votes for passage because of the deadly filibuster.
The Founding Fathers, rebelling against monarchy, were so partial to majority rule that they specified in the Constitution only five instances requiring a supermajority. They were: to override a presidential veto, to expel a member, to approve treaties, to convict in an impeachment and to propose a constitutional amendment.
The Constitution does not require a supermajority for adopting the rules for Senate proceedings. When senators insist upon supermajority votes for rule-changes and filibusters, they are stealthily amending the Constitution.
Two years ago, Sens. Tom Udall, Jeff Merkley and Tom Harkins mounted a campaign for rules reform. They succeeded in getting rid of the anonymous filibuster, an even more egregious practice. Now, after two additional years of accelerating legislative obstruction, Senate Majority Leader Harry Reid has finally called for ending the silent filibuster.
Reid’s proposal would prevent the use of the filibuster to block the introduction of new measures. More important, it would require a senator to speak if he or she wished to halt a vote, instead of effortlessly indicating an intention to demand supermajority concurrence to continue any action.
Newly elected Sens. Elizabeth Warren, Angus King, Heidi Heitkampf and Martin Heinrich have joined the filibuster’s foes, but the outcome of even Reid’s mild proposal is far from certain. Sen. Carl Levin is now assembling a bipartisan group to oppose any substantive change in the Senate’s rules.
Far more promising than Reid’s “make them talk” effort is the lawsuit filed by the public advocacy group Common Cause. Contending quite correctly that the Senate’s arcane rule is actually threatening our democratic process, their case highlights the stake that we American citizens have in the filibuster issue.
Suing on behalf of Reps. John Lewis, Michael Michaud, Hank Johnson and Keith Ellison and three young people hurt by the use of the filibuster to block the Senate from passing the Dream Act in 2010, Common Cause must demonstrate that its case does not fall under “the political question doctrine,” which posits that the judiciary can’t interfere with Congress’ procedures. Lawyers for Common Cause are arguing in the litigation that the Senate’s rule-making powers are not absolute, particularly when they violate actual constitutional law, in this case the principle of majority rule.
Resistance to changing the pernicious rule that is stifling the will of the majority rests on a historical myth and both parties’ fear of being curtailed when they are in a minority.
The myth teaches that the Senate was meant to counteract the democratic structure of the House. The opinions of the Founding Fathers tell otherwise.
The so-called Great Compromise at the Constitutional Convention of 1787, which granted each state two Senate seats regardless of its population, reflected a concession, not a principle. Because there were far more small states in the original 13 than large ones, the arrangement proved necessary to getting the delegates in Philadelphia to agree on a draft constitution.
As a consequence, Wyoming’s 180,000 registered voters have the same number of senators as California’s 18 million. Today’s filibustering senators are only furthering this imbalance.
The Founders designed the Senate to be a steadying force in Congress, with six-year terms and a requirement that members be at least 30 years old, but no Founding Father ever spoke in favor of minority rule.
James Madison, the father of the Constitution, recognized that majorities could err, but insisted persuasively that majority rule was far superior to any other mechanism for making legislative decisions. His views anticipated Winston Churchill, who noted that democracy might be considered the worst form of government except for all the others.
The rationales for the filibuster are but fig leaves to hide the fact that substantial numbers of senators in both parties want an insurance policy against minority impotence, and they are willing to curb the workings of our democracy to get it.
Now only an aroused public can get Democrats and Republicans in the Senate to see the damage that the filibuster is doing to our political order.
Majority rule is the bedrock democratic principle. When we citizens of the United States elect a majority, we want it to govern. Wisdom, experience, and the Constitution are on our side; let’s hope that enough members of the Senate move there also by Jan. 3 when the opening of the 113th Congress gives them a chance to vote with their hopes instead of their fears.
Joyce Appleby is an emeritus professor of history at UCLA and author of “The Relentless Revolution: A History of Capitalism.” She lives in Taos, N.M.