Bringing Common Sense to Political Commentary
David Bleidistel, Editor
Extremism in the defense of liberty is no vice. And moderation in the pursuit of justice is no virtue.
- Barry Goldwater
Injustice anywhere is a threat to justice everywhere.
- Dr. Martin Luther King, Jr.
Re-Posted for the 113th Congress!
Note: This article was originally posted in January of 2011, as
the 112th Congress was getting under way. Now, another 115 cloture votes
have gone by and the 112th Congress is coming to a close, and - surprise!
- the subject has come up again. Discourse and Diatribe
is re-posting this article because once again, there is talk of serious
filibuster reform on the opening day of the new Congress (the 113th Congress
will open on January 3rd, 2013), and, except for the dates, the basics of the
issue haven't changed. This time seems different, however, because the
chances of it actually passing have increased dramatically. Senate
Majority Leader Harry Reid has said he would now support rules changes that would
eliminate cloture votes to open debate or to send a bill to Conference Committee
(which would meet to work out differences between House and Senate versions of a
bill), although Senators could then filibuster the bill that the Conference
Committee puts forward. He would also support eliminating secret holds on
legislation and nominees awaiting confirmation, and - perhaps most significantly
- support going back to Mr. Smith Goes to Washington by once again requiring a
"talking filibuster". The Republicans are, of course, aghast at these
changes, but the change is apparently going to be brought up for a vote this
time, and most observers think it will actually pass. Finally!
[UPDATE (1/4/13): Senate Majority Leader Harry Reid has used the same legislative slight-of-hand that was used in 2011 to extend the first legislative "day" while he negotiates rules changes with the Republicans. Meanwhile, an alternate proposal has been put forward by a group of Senators led by John McCain (R-AZ) that significantly waters down the proposed rules changes. We will find out in late January whether any changes will be made.]
The original article follows:
- The Case For Filibuster Reform -
The image most Americans have in their minds of what a filibuster looks like in the United States Senate is that of Jimmy Stewart making an eloquent appeal to his fellow Senators' patriotism in the Frank Capra classic, Mr. Smith Goes to Washington. After trying for what seems like several days of talking on the Senate floor, he ends up exhausted, his hair mussed, his voice hoarse - but still committed as strongly as ever to his belief in American ideals. It is an unabashedly patriotic movie that doesn't seem overdone or cheesy. It is one of those movies that you never forget (If you haven't seen it...well, first of all, shame on you. Second, you need to find it on cable or satellite or at your local DVD store or on Netflix or wherever and watch it. Tonight.).
Of course, that's not what a filibuster has looked like for decades. Nowadays, a Senator simply files a motion indicating his or her intention to filibuster, and suddenly the majority needs 60 votes to end the debate on the bill (this is called a "cloture" vote) and thereby allow the bill to be brought up for a final vote. The "filibustering" Senator doesn't even need to be on the Senate floor when the cloture vote is taken! Not exactly Mr. Smith. Even worse, individual Senators now have the power to put a "hold" on any legislation or nomination without revealing they are doing so. These secret holds are anathema to concepts like majority rule, transparency, or fair play.
Over the years, both parties have used the filibuster rules to block legislation from coming up for a vote. It is the last resort in the minority party's arsenal of tactics to prevent a bill from passing - or at least it used to be the last resort. Since the Democrats took over the Senate in January of 2007, the Republican minority has utilized the filibuster for virtually every significant piece of legislation the Senate has considered, and has even forced cloture votes to open debate on a bill. The Republicans would have us think that their use of the filibuster is perfectly in line with the long-standing tradition of the Senate. It is essential to understand that, despite their claims to the contrary, the Republican abuse of the filibuster rules over the past four years is unprecedented in American history. Consider the following chart:
As the chart indicates, the 91st Congress, which served from January of 1969 to January of 1971 saw seven cloture votes. Seven. The truly remarkable thing about this fact is that this matched the highest number of cloture votes that had ever occurred in a single Congress at any time in American history (the 89th Congress also had seven cloture votes). By the time the Democrats took back the Senate in the 2006 elections, the new record was 61. Since then, the 110th Congress (January, 2007 - January, 2009) had 112 cloture votes, and the 111th Congress (January 2009 - January, 2011) was subjected to 136 cloture votes - more than double that previous record of 61. Clearly, there is a loophole in the rules regarding filibusters, and the Republicans have taken full advantage.
Now, with the beginning of the 112th Congress, there is (finally) serious talk of reform. Under Senate rules, on the first day of a new Congress - and only on the first day - Senate rules can be changed with a simple majority vote (after that first day, a change in the rules requires a two-thirds majority). Accordingly, on January 5th, 2011 - the first day of the 112th Congress - Senators Tom Udall (D-NM), Tom Harkin (D-IA) and Jeff Merkley (D-OR) introduced a resolution to change the rules back to a talking filibuster - in other words, they're trying to go back to Mr. Smith. Their bill would basically do three things. First, it would eliminate the "secret" part of the secret holds. Senators would still be able to place a hold on a piece of legislation or a nomination, but they would have to publicly admit they were doing so. Second, it would eliminate the need for a cloture vote to open debate - cloture would only be needed to end debate. Third, if the minority wants to filibuster a bill, they would have to remain standing and talking (about anything - they could read the phone book if they wanted to) on the floor of the Senate for as long as the Senate remains in session (like Jimmy Stewart in Mr. Smith). The 60-vote rule would remain in place for cloture, however, and minority Senators could rotate or "take shifts" on the Senate floor to filibuster the bill.
The Republicans, of course, have feigned outrage at this "break from tradition". They have warned the Democrats not to do anything they will regret when they become the minority (although this concept didn't seem to slow down the new Republican majority in the House of Representatives, who forced several rule changes through over strong objections from Democrats). The Democrats in the Senate have begun negotiations with the Republicans to try and reach a bipartisan solution to the filibuster problem, and the Senate leadership used a legislative sleight-of-hand to give them time to negotiate. In essence, what they did was to complete the ceremonial stuff that happens on the first day of a new Congress (officially swearing in new and re-elected Senators, for example), and then recessed until January 25th. What this means is that when they meet again on January 25th, it will still be the same legislative "day", and only a simple majority will be needed to make the rules change [Note: This is the legislative maneuver referred to above that has been used again for the 113th Congress]. This gives the Democrats some leverage in the negotiations - if the Republicans refuse to go along, the Democrats can still vote the rules change into effect over the Republican objections. This will be interesting to watch.
Why is this so important? To be sure, the filibuster does have a long history and should be retained. It is, after all, the last line of defense against what has been called "the tyranny of the majority". However, if a Senator wants to filibuster a bill, they should have to actually filibuster - just like Jimmy Stewart in Mr. Smith Goes to Washington. They should, at the very least, be required to be on the Senate floor at the time! The news programs would show the Senators talking (and talking, and talking) to prevent the bill from coming up for a vote. This could serve to (appropriately) put pressure on the filibustering Senator(s) in terms of wasting the Senate's time, or for blocking a bill that most Americans want passed. As it stands now, most Americans don't pay attention to things like cloture votes, or even understand what a cloture vote is. They do understand what a filibuster is, however, because they've seen Mr. Smith Goes to Washington. The news would cover a true filibuster, and the American people would see - and, more importantly, understand - exactly what was happening.
A good example is the 9/11 First Responders' Health Care bill that came up during the recent "lame duck" session of Congress. It started at over $7 billion and 20 years of care, and certain Republican Senators (most notably Tom Coburn of Oklahoma) thought that was too much and threatened to filibuster the bill. The Democrats caved and lowered the bill to just over $4 billion and only 5 years of care - which is not nearly enough - and the bill passed. Would the result have been the same if Senator Coburn had been forced to actually filibuster the bill in front of the TV news cameras? Would Americans have tolerated a Senator blocking a bill to provide health care to the heroes of 9/11? I doubt it.
The rules changes proposed by Senators Udall, Harkin and Merkley should be passed. The Republicans didn't worry about retaliation when they changed the rules in the House of Representatives, and the Democrats shouldn't worry about retaliation if they change the rules in the Senate.
The current rules aren't working. The Democrats should make the needed changes - with or without Republican support.
Jimmy Stewart would expect nothing less.
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ã 2011 David Bleidistel. All rights reserved.