In a nation that clings to the ideals of majority rule and fair play, the filibuster can seem like a poke in the political eye. Allowing a single lawmaker to talk on and on, bringing the nation’s business to a halt, may have seemed like a good idea when Mr. Smith went to Washington. But its potential to cause mischief has been on vivid display during the ongoing health care debate, making Senator Joe Lieberman the subject of a day-and-a-half of constant cable chatter and rewarding Nebraska Senator Ben Nelson’s constituents for his recalcitrance — all for threatening not to vote on something. No wonder the Democrats in the Senate, who often remind us that they did actually win the last election, want to scrap the rule that requires 60 votes to end debate.
But, remember, so did the Republicans when they last controlled the Senate and were in a righteous heat over the way the minority party held up approval of federal judges. “Frustration over the use of the filibuster is as old as the filibuster itself,” wrote Norman Ornstein, resident scholar at the American Enterprise Institute and an expert on congressional dysfunction. He wrote that in 2003, but no matter. It’s still applicable today.
What’s also still applicable is another Ornstein observation from that time: “No issue has had more hypocrisy attached to it in Congress than the filibuster.” Whichever party is in power wants to eliminate this check on their power. Tempting though it is in this political moment to smooth the legislative way toward adopting a Democratic agenda, the filibuster acts as a useful bulwark against the tyranny of the majority. It shouldn’t be scrapped. It should be reformed.
The current problem arises from the law of unintended consequences. In 1975, the Senate reduced the number of votes needed to end a filibuster from two-thirds to three-fifths — that is, 60 votes. That certainly strengthened the hand of the majority. But another change also allowed lawmakers to avoid the spectacle of actually filibustering by merely threatening to do so. Where once the threat of a filibuster was evoked sparingly, and with consequence, it’s now thrown about the chamber as casually as street money on Election Day.
So a senator can threaten to filibuster, forcing the majority to petition for cloture, to end the faux debate. But the cloture process brings its own baggage. That’s because after cloture is filed, it takes up to two days before Senate rules allow a vote on the petition; then, the minority — now, the GOP — may insist on up to 30 hours of debate.
Want to slow down the nation’s business? Force the majority to petition for cloture. According to reviews of Senate voting patterns in the last Congress, the tactic has often been used when there was, in fact, little controversy about the matter at hand. A full 89% of the time, the requirement that the majority seek a cloture vote did nothing but delay the inevitable. Or, if the 60 votes cannot be found to end debate and force a vote, the bill dies a quiet death, without a chance for legislators to say aye or nay, and without the public having a clue about what’s going on.
And there’s no price to pay for these stalling tactics. That can change if the leadership calls the bluff of any lawmaker who flirts with the filibuster. Let the parties decide whether they want to stand by such a drastic action, and let the American people decide whether doing so is a noble cause or a waste of time.
Beyond the showmanship, there’s a real step that the Senate can take to rein in the filibuster’s excesses: Ratchet down the number of votes needed for cloture. Several iterations of this idea are floating around Washington, all with the aim of eventually getting to a vote by a simple majority, while still allowing the minority to make its point.
And that’s the central mission of the filibuster — dare we say, its civic beauty. Our governmental system strives to give voice and power to the minority. But in return, to retain its voice, the minority must not abuse its power.