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A Necessary Beginning To Ending Capitol Gridlock: Filibuster Reform

The “fiscal cliff” disaster makes clear that partisan gridlock is a dire problem in Washington, DC.  In fact, we have reached a new low for dysfunctional national government with a record-setting WORST CONGRESS EVER, the 112th Congress, which is thankfully coming to an end.

In my fifty-some years of observing Capitol Hill (having once worked there), I have never seen anything quite like it.  The dysfunction of Capitol Hill is no longer a joke; rather, it’s a serious problem, and a threat to the nation’s well-being. It is utterly mystifying to me why voters tolerate it, and why the journalistic guardians of our freedom mostly ignore this vital story. This story should be a daily headline, and if editors cannot figure out who is to blame, they should get into another line of work.

Make No Mistake, the Republicans Are the Problem

Back in July, Washington Post reporter Ezra Klein, one of the brighter minds of the rising generation of Washington observers, laid out fourteen reasons (with charts to make his case) as to why this current Congress is the worst ever.  In fact, Ezra is being kind in listing only fourteen reasons, and in not singling out Republicans, whom a close reading of his reasons clearly shows are at blame for the situation.

Maybe even more striking was the moment when, earlier this year, the bipartisan team of Congressional experts, Norm Orenstein and Tom Mann, weighed in with their powerful book, It’s Even Worse Than It Looks: How the American Constitutional System Collided With the New Politics of Extremism, in which they minced no words in correctly placing the blame on Congressional Republicans.  Most recently, Orenstein and Mann wrote: “The two of us have each been immersed in Washington politics and policymaking for more than 43 years—and we have never seen [a Congress] this dysfunctional.”

The problem has been too often cast as merely the Republicans’ efforts to prevent President Obama from getting reelected by obstructing Congress from taking necessary action that would help the economy, refusing to confirm his nominees, and the like. In fact, the problem is deeper. I know these Republicans well and they have become so ideologically driven, not to mention power-hungry, that they literally are incapable of governing.  (See my book Broken Government: How Republican Rule Destroyed The Legislative, Executive and Judicial Branches (2009) in which I explain the situation and its implications in some detail.)

Nonetheless, there is some recent and potentially good news. Displeased Democrats are preparing to take action with the new 113th Congress, when it convenes on January 5, 2013, to prevent Republicans from further using and abusing the filibuster—which is probably the most egregious of the current GOP abuses of power.  Senate Republicans now demand a supermajority of 60 senators to get anything done in the U.S. Senate, knowing that Democrats cannot get the requisite votes.

GOP’s Record-Setting Filibuster Abuses

When attending Georgetown Law School, I made a point of travelling to Capitol Hill in 1964 to witness several days of the Southern conservative senators at work filibustering the historic Civil Rights legislation that was then making it way through Congress. A handful of bigots, who operated as a tag-team, kept their filibuster going for 75 days before pro-Civil Rights supporters could gather the necessary 67 votes to end the endless debate by invoking cloture. What happen was that eventually national news coverage began focusing on this filibuster, and American outrage forced its end.

I first heard talk of changing Rule XXII, which required 67 votes to invoke cloture to end a filibuster, to require only 60 votes instead, while I was working at the Nixon White House, but this rule change was not finally accomplished until 1975 after Nixon had departed.  A few years later, the filibuster rule was further changed so that it was not necessary to hold the Senate Floor with endless speeches to accomplish a filibuster; rather, merely announcing an intention to filibuster was considered sufficient, so the business of the Senate could go on.

These new rules worked pretty well for a while, but during the Clinton Presidency Republicans began abusing them, and then during the Obama Presidency, the GOP made abuse of the rules into standard procedure.  Democratic Majority Leader Harry Reid reports that he has been confronted with some 386 GOP-lead filibusters in the past six years. Clearly, this is blatant obstructionism and it makes a mockery of our democracy, where majority rule is suppose to control.

For all practical purposes, the contemporary U.S. Senate has stopped functioning.  It now takes 60 senators to get anything done, and neither the Republicans nor the Democrats can muster the votes for much of anything.  In the meantime, it is not merely the fiscal and economic legislation that the Senate has not been addressing, but also the situation of the men and women whom President Obama has nominated for presidential appointments throughout the Executive Branch but who have yet to be confirmed.  This problem has become acute for the Judicial Branch.

How the Filibuster Has Rendered the Federal Judicial Confirmation Process Dysfunctional

In too many instances, one senator (who is never identified or named) has blocked a judicial nominee by merely threatening to filibuster the nomination, yet when that nominees is voted on—if they make it to the Senate Floor—he or she is overwhelmingly confirmed.  These blocks and this stalling are undertaken for purely political reasons, not because the judicial nominee is not fully qualified for the bench.  Today, highly qualified attorneys are understandably turning down judgeships because of the dysfunctional confirmation process.

Even more troubling, we have a true “judicial emergency,” about which the public knows virtually nothing. While there seems to be some closing-days effort to fill a few of the 83 current vacancies on the federal district and circuit courts, that effort is only being undertaken in order to prevent the federal judiciary from totally collapsing.  Senior federal judges in their 70s, 80s and 90s, many of whom have been calling their friends in the Senate for help, have been coming out of retirement to try to help deal with the emergency situation, which has mysteriously been unmentioned by the news media.

The fact that Chief Justice John Roberts has failed to speak out more forcefully on this issue, and thus to call attention to it, can only be explained by the fact his GOP friends are the ones causing the problem.

Filibuster Reform Is Absolutely Necessary

Newer Democratic members of the Senate have taken the initiative, and have been pushing for at least modest reform of the filibuster rules.  This drive has been led by Senators Tom Udall (D NM) and Jeff Merkley (D OR).  And it was nice to see Senator-elect Elizabeth Warren—a Harvard law professor—join this effort even before arriving in the Senate. See Reform The Filibuster.

Recently, The Atlantic, which has covered the filibuster story, outlined the key reform proposals that have been put forward.  Those that have a real potential of being adopted include one that would require a senator who calls for a filibuster to actually go to the Floor of the Senate and hold it, in the tradition of “Mr. Smith Goes to Washington.” No more of Senators simply saying that they are calling for a filibuster; rather, they must actually undertake a filibuster. (The public does not think well of filibusters, and in days past, before C-Span, the public was seldom aware when they occurred, and disdainful when they did.  C-Span will make filibusters, which only become more frivolous the longer they proceed, very conspicuous.)

Another important reform would prohibit filibusters on preliminary parliamentary motions that bring legislation to the Senate Floor. Under the current rules, Republicans first filibuster the motions to bring a bill to the Senate Floor for debate, and then call for another filibuster of the actual bill itself once it arrives on the Floor. This absurdity would be eliminated.

The reformers would also eliminate filibusters on House–Senate conference reports, where legislation has passed both House and Senate, and a conference committee of the two bodies has worked out any differences between the versions, but the legislation still must be approve for final passage.  Rather, these conference reports would be subject to a straight up-and-down vote. (I also hope that they eliminate filibusters on all presidential nominees, whose candidacies, when reported out of a committee, deserve an up-or-down vote.)

In addition, there has been discussion of eliminating the requirement that those who oppose a filibuster must establish that they have the 60 votes necessary to prevent the filibuster.  Rather, a new rule would shift the burden to those who want to block legislation with a filibuster to be required to produce the 41 votes necessary to do so.

Will the Democrats Go Nuclear?

Needless to say, Republican Minority Leader Mitch McConnell is fighting these modest rule-change efforts, which might hamper or remove some of his obstruction tactics.  In the 113th Congress, there will be 55 Democratic votes (including two Independents) and 45 Republicans.  Press accounts indicate that the Democrats currently have some 50 Senators who appear to favor filibuster reform.  Democratic Majority Leader Harry Reid has indicated his willingness to bring this matter to a vote in the new Congress, where he believes that a simple majority of 51 senators can change the rules. But it is still far from a sure thing.

Republicans claim that it requires 60 votes to change the Senate’s rules, and that using a simple majority to change the rules would be employing what they call the “nuclear option.” It is so-called because Republicans say that the fallout that will occur if a simple majority changes the rules will make it seem like a nuclear winter in the Senate.

What happens in a situation like this?  When the Republicans object to a simple majority vote changing the rules, the matter will be referred to the Senate Parliamentarian, who works for the Democrats and will rule that a simple majority vote is sufficient.  A parliamentarian’s ruling can be overturned by a simple majority of the Senate, but the Republicans do not have that majority. And this is why they say that they will make life in the Senate even more impossible if a simple majority takes away their current obstruction tactics.  The Senate is a body that actually has few rules—unlike the House of Representatives—and without unanimous consent, it is difficult to keep the Senate operating smoothly.  So there is no question that Republicans can make the Senate worse if they so choose.

Because invoking the nuclear option will be necessary to change the filibuster rules, some Democrats are on the fence, fearful of incurring more Republicans’ bad behavior.  But taking this position is like rewarding a child who threatens to throw a tantrum every time he or she does not get their way.  Haven’t Democrats had enough of GOP extortion?  I say, get some spine and force the Republicans to enter into a state of perpetual tantrum. Voters may eventually send them home, and find U.S. Senators—either Republican or Democrat—who truly believe in majority rule.

The Arguments That Are Frequently Made Against the Rule Change

The most frequent argument that is made against the filibuster rule change, which comes from a few reluctant Democrats who have once been in the minority themselves, is that if (or when) the Democrats lose control of the Senate, they will not be able to do the Republicans what has been done to them.  Frankly, this, too, is absurd thinking, because it is just as undemocratic for Democrats to be using these abusive procedures as it is for Republicans to be doing so.  The U.S. Senate should represent the voice of the American majority, not the manipulation of a small minority that demands a supermajority.

The filibuster, like many of the Senate’s parliamentary procedures, was originally designed to protect the rights of the minority.  But when those rules are abused by the minority, which is demanding a supermajority for most everything, then a fundamental of our democracy has been removed.  While a few reformers want to totally end the filibuster, that is not going to happen.  On the other hand, though, the minority should not be able to demand a supermajority for virtually every Senate vote.  While the Constitution does provide for a supermajority in a few delineated instances (e.g., Senate approval of treaties), neither political party should be able make a supermajority the norm, when the nation’s Founders never contemplated a government that was based on supermajority rule.

In truth, there are no strong arguments against reforming the filibuster rules.  These rule changes are modest, and while they will not end gridlock in Washington, particularly if the GOP goes into permanent tantrum mode, they could help.  This is a purely political problem that the Senate itself must resolve, as U.S. District Court Judge Emmett Sullivan explained just before Christmas in Common Cause v. Biden.

A number of good-government groups, unions, and even some business groups would like to see filibuster reform.  Former U.S. Senator Barack Obama supports filibuster reform.  Right now, I would give the reformers a fifty-fifty chance of prevailing.  And if their effort fails, Republicans will have succeeded in making American government less workable, which seems to be their driving political goal right now.  Any Democrat who thinks like a Republican on this matter should be involuntarily retired by voters at his or her next election.

John DeanJohn W. Dean, a Justia columnist, is a former counsel to the president.
Posted In Government, Politics
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  • http://www.facebook.com/people/Nelson-Chen/100000862783143 Nelson Chen

    What about the anti-nuclear option arguments that you eloquently laid out years ago during the George W. Bush presidency, when it came to his judicial nominees? Things like the Senate being a continuing body and so forth?

  • http://www.facebook.com/profile.php?id=1445770875 Kathryn Jean Stevens

    i don t know who will win, but i do know who will loose, we the people are not getting a vote

  • http://shanenj.tripod.com/ shanen

    His name is Ornstein in several places and it should say “GOP-led” there. I’d offer more substantive comments, but it has become clear this forum is just a lawyer’s soapbox, and the rest of us are invited to be quiet.

  • http://www.facebook.com/MaryRoberts61 Mary Roberts

    Republicans are the problem?? Have we forgotten the childish behavior of the Democrats when they got up, left town and refused to come back and do their jobs – for how many weeks?? The first problem we need to fix is the blame game. Both sides are guilty for not being willing to compromise. BOTH sides need to compromise – Republicans and Democrats alike!!! After a start like that to an article – I’m not interested in reading any more of this. I’m sick of all of this!!!!

  • http://twitter.com/JohnCharles411 John Charles

    I, too, am surprised so many Democratic senators can’t see that the filibuster must be reformed. Perhaps they value the prerogatives of individual senators over the health of the polity.

    There is merit in the argument that the Senate should slow down too hastily considered legislation, but as John Dean points out, the founders never conceived of it as permanently requiring a supermajority to act. The equal representation of the states was the defining characteristic they devised to keep a sweeping enthusiasm in a few big states from sweeping too quickly over a minority view more likely to find advocates among the smaller states’ senators. With the combination of equal state representation and a 60% supermajority, in fact it’s probable that small state Senators representing maybe 20% of the national voting public can block action.

    In addition to the reforms Dean mentions, how about some sort of sliding scale–so that as the length of a filibuster reaches certain milestones, the % necessary to end the filibuster decreases, until it reaches 50% +1, so that the minority can be sure it has time to be heard and arouse a national discussion, but at the end a majority of Senators can act without the barrier of a permanent supermajority requirement, as the founders intended?

  • http://www.facebook.com/linda.chezem Linda Chezem

    Why does Congress need to act?

    The hype and drama serve no purpose except for party promotion and perhaps, the selling of advertising by media. We can get along without all of the federal government
    for a few days. Republican or Democrat, repeal the 16th amendment. We need some
    slow, thoughtful politics. There is the irony of people wanting to go back to “natural” foods and slow cooking but engaging in hysteria over Congress.

  • t jones

    It is tempting to agree with Dean’s proposed solution. The problem and causes he identifies are real. However, his argument for the change he supports is based on the faulty premise that “The U.S. Senate should represent the voice of the American majority….” The Senate was not created to represent the majority of Americans. Unlike the House’s, Senate seats are distributed equally to each state, regardless of relative population. E.g., Wyoming and California each have 2 Senators, although California has almost 66 times as many people. If the Senate represented the majority will of the American people, the votes of the Senators from the 9 most populous states could control it.

    The Senate is an archaic institution created by the 13 original States, to ensure that the “smaller” states could protect their interests from unfettered majority rule. It turns out that that is not such a good system for getting things accomplished when the minority’s interests diverge so significantly from the majority’s that it (the minority) becomes willing to cripple (or possibly intent on crippling) the federal government rather than agree to a meaningful compromise. Thus, the argument for Dean’s proposal must be based on the need to get specific things done that the majority of Americans want, but not on the premise that the Senate is supposed to be reflective of the majority of American’s views.

 

Access this column at http://j.st/ZQGW