Mitigate the Filibuster

January 20, 2010 | | Comments Off on Mitigate the Filibuster

The health care reform effort, or shall we call it “The Grinch,” has stirred debate aplenty. What’s wrong with death panels, anyway? Do you want the government in charge of your health care, or do you want to keep Medicare? Would you accept drugs from Canadians? A former judge even dubiously argued that the legislation itself is unconstitutional. (The guy who wrote the textbook on the Constitution reminded him of the Commerce Clause.)
jimmy stewart
Having elected a president and members of Congress who campaigned on the need to reform health care, we could have expected results within a year or so. But the bill spent months floundering in the Senate, the world’s greatest deliberative body, where debate matters more than results. Now with Scott Brown’s victory in the Massachusetts Senate race, the Republicans once again have 41 votes — nothing near a majority, but enough to jettison the proposals already passed by both Houses of Congress.

We can now have a serious debate: whether it makes sense to derail the filibuster. If the Constitution does not allow for ending it, we should at least mitigate its effect on future legislation.

The Founders did not create the filibuster, and it stuck as a thorn in the side of one of the five greatest Senators. When a group of Senators challenged the Treaty of Versailles, President Woodrow Wilson insisted on enacting cloture—the ability to cut off debate. Until 1975, cloture required a two-thirds vote (67 votes). Now, of course, the infamous tally is 60. As Paul Krugman recently noted, the filibuster has not always proved such a dangerous weapon. Only since 2006 has the minority dramatically increased its use of the filibuster (or at least, the phantom filibuster) on major legislation.

Besides evoking memories of Mr. Smith, the filibuster has not done much for American democracy. Strom Thurmond holds the filibuster record, stalling Civil Rights legislation for more than 24 hours on the floor of the Senate in 1957. Robert Byrd argued (unsuccessfully) against Civil Rights in 1964. Then, of course, came the threats of judicial nominee filibusters, perhaps unconstitutionally, in the mid-2000s. Because the Constitution guarantees us a republican form of government, not a democratic one, it’s tough to argue that the run-of-the-mill filibuster, as used in the health care debate, is unconstitutional. The Constitution grants the Senate the express power to make its own rules (art. I, § 5, cl. 2). But if the Senate could reform itself, we might have positive change.

Senator Tom Harkin has proposed, or at least discussed proposing, a bill that would keep debate moving and gradually reduce the number of votes needed for cloture. If 60 votes could not be reached, debate would continue until a second cloture vote requiring 57 votes, and so on, until a mere majority of Senators could end debate. The Senate should adopt Harkin’s proposal, making it effective in 2017, by which time all sitting senators will have either retired or stood for reelection and a new president (or two) will have taken the oath of office.

I recently sent a letter to Sen. Harkin voicing my support for his proposal, and received this letter in return:

January 20, 2010

Dear Friend:

Thank you for contacting my office about the Senate filibuster rule. I always appreciate hearing from Iowans.

In 1995, when serving in the Minority, I introduced legislation to change the Senate rules regarding the filibuster in a manner that would prevent a minority from being able to kill legislation that had majority support, but would not harm the longstanding Senate tradition of extended debate and deliberation. When the Senate returns later this month, I intend to reintroduce that legislation.

At issue is a fundamental principle basic to our democracy, the rule of the majority in a legislative body. Elections should have consequences, and last year a sizable majority of the public sent us to Washington to implement real change and reform. Yet, largely because of the filibuster, all the public sees is gridlock. Because of current rules, one Senator or a significant minority can hold the entire Senate from legislating or confirming nominees. This is wrong.

Sadly, what was once an extraordinary tool, used only in the rarest of instances, has become a common tactic to thwart the will of the majority. For example, in the 1950s, there was an average of one filibuster per Congress. Moreover, during the 1960s, no Senate session had more than 7 filibusters. However, since 1995, when I first introduced my reform proposal, the number of filibusters has increased 350 percent. Last Congress, there were a record 139 filibusters. In the current Congress, already, there have been 67 filibusters.

Even more frustrating, the filibuster has been used to halt further consideration on even the most non-controversial bills, which serves no purpose, but to delay and mire the Senate in gridlock. For example, the minority party filibustered a motion to proceed to a bill funding the Department of Defense, simply to prevent the Senate from acting on other business. Likewise, the minority party filibustered a motion to proceed to a bill to extend unemployment compensation. After delay and grinding the Senate to a halt, ultimately the bill passed 97-1.

Clearly, reform is necessary. Under my proposal, over an eight day period, the number of votes needed to end a filibuster would progressively decline from the 60 votes needed currently, down to a simple majority. In this manner, members in the minority would still have ample opportunity to debate an issue, try to shift public opinion and attempt to persuade their colleagues. The minority could not, however, outright prevent the majority from legislating. In this way, my proposal will restore the Senate to the body envisioned by the Founders, where the minority could slow things down, but not hinder legislation from ever coming to a vote.

Again, thank you for sharing your views with me. Please don’t hesitate to contact my office on any issue that concerns you.


Tom Harkin

United States Senator

Sen. Harkin has a sensible position. Under a veil of ignorance, members of both parties should oppose the use of the filibuster because it hinders the will of the people to get good legislation passed. Please contact Sen. Harkin to voice your support for mitigating the filibuster.


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