THE BLOG

Telling the Truth About the Filibuster: It Is Time to Put It on the Shelf

12/03/2012 06:16 pm ET | Updated Feb 02, 2013

In recent days, some Senate Democrats have suggested that they are going to reign in the filibuster and try to get the Senate back to work. Virtually everyone agrees that the Senate is broken, and the filibuster is a major cause of the dysfunction. From 1840-1900, there were only 16 filibusters whereas in one year, 2009-10, there were 130. Unfortunately, the fixes being discussed by Harry Reid and Elizabeth Warren, and now endorsed by the president, would be at most a temporary Band-Aid on a very serious problem. The only way to bring the Senate until the 21st century is to do away with the filibuster altogether.

When the Founding Fathers met in Philadelphia to discuss the new Constitution, the subject of how laws were to be made was a major topic. They considered whether to have super-majority voting requirements but decided that the checks and balances of the proposed system adequately protected the people from tyranny. All laws had to be passed by majority vote in both Houses of Congress and signed by the president, or if he vetoed the law, it could be passed again with two-thirds vote of each house. The men who met in Philadelphia believed this system would account for different constituencies and maintain a proper separation and shared system of governmental powers. They specifically rejected proposals for super-majority requirements for ordinary legislation but adopted them in six specific important instances such as amending the Constitution, impeaching presidents, and ratifying peace treaties. But for conducting the day-to-day business of the Senate, they were not going to allow a minority of Senators to block what a majority wanted to do (especially with the House and the President serving as backstops to unwise legislation).

The tale of the filibuster is too long to tell here, but for most of our history it has been used by reactionaries to block progressive legislation. More importantly, its use was limited because, prior to 1975, senators had to actually hold the floor and be present to conduct a filibuster. That changed with the amendments to Senate Rule 22, and now the mere threat of a filibuster is enough to stop even debating a bill. Worse, it takes 67 senators to change a "procedural" rule like the one requiring 60 votes to vote on (and now even debate) a bill.

Majority Leader Reid is talking about changing the rules back to the pre-1975 days when senators could filibuster but had to be there in person to do it. No more back-room deals or threats of a filibuster would suffice to stop a law, like the Dream Act, which clearly had majority support but not 60 votes. Mitch McConnell, the Senate Minority Leader, is pledging to shut the Senate down if Reid makes his changes. McConnell seems to favor the lack of democratic transparency that emerges when popular bills can't even be debated if a single senator threatens a filibuster, which is the current practice.

To most Americans, this is all inside baseball, but the Senate's inability to do its job does affect us all. Those in favor of the old style filibusters (virtually no one defends the new kind) suggest that the minority should have the ability to block what the majority in the Senate wants to do and that results in more protection for individual rights and liberty. Ironically, the filibuster has almost never been used to protect rights expanding bills but rather to block rights-granting bills. Federal Anti-Lynching laws and civil rights legislation are two famous examples. It has also been used to impede important judicial nominations of people on both sides of the aisle and obviously qualified candidates, such as Miguel Estrada, have been needlessly blocked.

As noted earlier, the only way a bill can become law in this country is for it to receive majority support in both Houses of Congress and signed by the president or a two-thirds vote of both houses overriding the president's veto. This was the system envisioned by the Founding Fathers and it makes sense. Both the Dream Act and the Disclose Act were popular laws. One was designed to help illegal immigrants who had graduated college and one wanted to help voters seeking information about corporate donors. Both were passed by the House, favored by the president, and a majority of senators, but neither became law solely because of the threat of a filibuster.

Because the Senate does not seem to want to solve these problems (even Reid's changes, though beneficial, are minor), Rep. John Lewis along with other members of the House, Common Cause, and potential Dream Act beneficiaries, have filed suit in federal court in the District of Columbia arguing that the filibuster violates the Constitution because it makes all legislation (with certain narrow exceptions), subject to the same two-thirds requirement the Founding Fathers rejected except for the most important instances. The Senate's official position in their briefs is that procedural rules adopted by the Senate are immune from judicial review in any and all circumstances no matter who brings the lawsuit. That position, if adopted by the court, is a true threat to separation of powers because it would give the Senate complete control over how laws are made even if that process violates the Constitution. I have been assisting with that lawsuit to make sure the court will at least hear the case.

The most important pressure that could be applied to the Senate is from the people who vote for the senators. The filibuster was never a good idea; it was not anticipated by those who wrote the Constitution, and it has been abused over the last few years in ways that would have been unimaginable to most senators prior to 1975. The filibuster needs to go.