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Bob Edgar

Bob Edgar

Posted: December 7, 2010 07:54 AM

The Pirating Senate

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In America's early days, a filibuster was a pirate -- "filibustero" in the original Spanish -- a soldier of fortune who plundered foreign lands without his government's consent.

Today's filibusteros wear $500 suits and carry BlackBerries, not cutlasses, on their belts. We call them senators. The piracy continues however, now legalized and directed at our own government.

Last week, 42 Senate filibusteros demanded a $700 billion ransom, in the form of a tax cut for the richest Americans, and promised that nothing -- however important it might be -- will emerge from the Senate until they get it. Their piracy almost certainly will succeed, to be followed by more of the same. And the pirates will smugly insist that the filibuster is part of a great democratic tradition.

Aaargh!

The fact is that the modern filibuster, through which one senator or a handful can kill legislation by talking, talking, talking so long that the majority gives up and moves on to something else, has never been part of the Constitution or any law. It's not even in the original rules of the Senate.

You could almost say it's an accident.

America's founders fancied the Senate as a place for careful, thorough deliberation, in contrast to the more mercurial, close-to-the-people House of Representatives. George Washington is said to have described the Senate as the saucer where the passions of the day were poured out like scalded coffee to cool.

The first senators considered themselves gentlemen and so were loath to end discussion of any of the Senate's business until everyone had a chance to be heard. Still, the original Senate rules included a mechanism to end debate and force action by a simple majority vote.

It was rarely used. Leaving the vice presidency in 1805, Aaron Burr noted that he'd presided over only one vote to cut off debate during his four years in the chair. In 1806, senators decided that the rule permitting a motion to end debate was unneeded and eliminated it. The move enabled a single senator to block action by the entire body.

Still, the first real filibuster didn't come for another 35 years, in 1841, and there were only 32 more in 76 years after that.

In 1917, after a filibuster blocked President Woodrow Wilson's bill to arm American merchant ships threatened by the German navy, the Senate finally agreed to permit limits on debate, changing the rules to allow a cutoff, or cloture, on the vote of a two-thirds majority. The threshold was lowered to a three-fifths majority, now 60 senators, in 1975.

Not until the 1980s, 90s and the current decade, did filibusters become a popular parliamentary tactic. Democrats and Republicans alike now characterize them as a critical check on the excesses of the majority, a tool that forces both sides to compromise so that legislation can move forward.

It sounds good, but in today's hyper-partisan Senate it just isn't true. Today's filibusters actually stifle debate rather than extend it, block compromise rather than encourage it. Here's how.

Everything the Senate does, even the decision to consider a particular bill on a particular day, requires a vote. That means the decision can be filibustered.

In September, Republicans opposed to President Obama's plan to let gays serve openly in the military filibustered a motion to begin debate on legislation ending the current "Don't Ask, Don't Tell" policy. When cloture failed, the Senate was effectively blocked from taking up "Don't Ask" or amendments to the policy that might have produced a compromise. The only debate was over debating itself.

This happens with depressing regularity. Just this year, 41 Republican senators -- the minimum needed to defeat a cloture motion and keep a filibuster alive -- have blocked or delayed action in the Senate 125 times.

Other legislation has been blocked just by the threat of a filibuster. The START treaty, a new arms control agreement with Russia endorsed by secretaries of state from Henry Kissinger through Hillary Clinton is hanging by a thread in the Senate this month because of a filibuster threat by a single senator, Arizona Republican John Kyl. On a personal note, I've spent a good part of my life studying and working on arms control issues; it staggers me to see a senator use a parliamentary gimmick to block action on a treaty that helps protect our planet from annihilation.

"The democratic principle of majority rule does not apply in the United States Senate," Atlanta lawyer Emmet J. Bondurant observed in a paper prepared for Common Cause earlier this year. "Majority rule has been replaced in the Senate by minority rule."

The filibuster, at least as currently practiced, is unconstitutional and un-American. It's time for senators to end the piracy and reform the rules so a small minority cannot block the will of the majority. The Senate will have that opportunity in January, when it sets new rules at the start of the 112th Congress, and should do so.

 

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