U.S. Senate to Consider Filibuster Reform

This week, the U.S. Senate will begin deliberation on a series of filibuster reform resolutions, largely precipitated by a six-fold increase in the total number of filibusters in the two previous legislative sessions.

Liberals have directly caused this tremendous increase in filibusters and the inevitable breakdown in bipartisanship.  The Senate leadership, especially Senate Majority Leader Harry Reid, has relied heavily on a procedure known as “filling the Amendment Tree”, a rule that provides the majority with the ability to block amendments proposed by the minority party.  Senator Reid has employed this extreme procedure a whopping 44 times in four years.  The previous six majority leaders combined used this procedure just 36 times in 30 years.  Constantly prohibiting conservatives from offering amendments has left them little choice but to resort to filibustering as practically their only means of influencing the proceedings.

Changing the Senate rule to make filibustering more difficult would do long-term damage to the legislative process beyond whatever short-term, hamstringing effect such a change would have against conservatives.  Mostly, such a change would solidify power even more centrally within the Senate in the hands of only a few—a dangerous trend no matter which party might compose its majority and clearly antithetical to the Founders’ intentions for that body.

The origins and legality of the filibuster.  The filibuster is a debate by one or more Senators intended to delay consideration of a bill or nomination.  Today, the filibuster is most commonly used by the minority party to block appointments, prolong debate, defeat legislation, and prevent the majority party from usurping excessive amounts of power.  Furthermore, the filibuster serves to empower individual members to participate in the process and for the American people to have their say.

In recent months, Harry Reid and his liberal colleagues in the Senate have branded the filibuster as “unconstitutional and un-American.”  But this is simply false.  The Constitution permits each house of the legislature to determine the rules of its proceedings, and the Senate rule creating the filibuster was passed by a two-thirds, procedural vote long ago.

Senate Rule XXII, created by the Senate in 1917, provided the minority party with the authority to prevent votes on bills, block controversial legislation, and vote against nominees deemed unfit for service.  Heritage Foundation analyst Brian Darling writes, “This tradition is important because it enables all Senators representing all 50 states to participate in every piece of legislation and nomination.  If the Senate jettisons its tradition of extended debate, it will likely cease to be a deliberative body, and the majority party will have unfettered power to pass legislation and confirm nominees with little to no debate.”

Considering a rules change.  The exponential rise in the number of filibusters in recent years has precipitated the Senate’s decision to seriously consider a rules change.  Senator Reid is of the opinion that eliminating or altering the filibuster rule will create greater efficiency.

What Senator Reid fails to mention, however, is that his disinterest in permitting conservatives’ amendments is the direct cause for the increase in the number of filibusters.  Senator Lamar Alexander (R-TN), one of the Senate’s most outspoken critics of a change to the filibuster rule, said of the Republicans’ willingness to use the filibuster, “The demise of the Senate is not because Republicans seek to filibuster. The real obstructionists have been the Democratic majority which, for an unprecedented number of times, used their majority advantage to limit debate, not allow amendments and to bypass the normal committee consideration of legislation.”  Harry Reid’s unwillingness to accept Republican amendments on seminal legislation is the chief reason why the number of filibusters has significantly increased in the two previous legislative sessions because the filibuster is the minority party’s only defense against the Majority Leader’s Filling of the Amendment Tree.

The U.S. Senate was not designed to be a forum for partisan ramrodding of pet agendas at the expense of liberty.  Nor was it intended to be efficient: Senators were once appointed (not elected) by the states to be deliberative elders and to check the popular sentiments expressed in the proceedings of the House of Representatives.  The filibuster is one of few remaining protections of national minority interests.

At the time of this writing, three Senators—Jeff Merkley of Oregon, Tom Udall of New Mexico, and Tom Harkin of Iowa— have drafted legislation that would alter or eliminate the filibuster.  Under each of these proposals, the majority party would be able to exercise unanimous authority over floor debates, committee markups, and the amendment process without interference from the minority.

The Merkley Resolution.  Of the three filibuster reform proposals set to be considered by the Senate later this week, the Merkley Resolution has received the least media attention.  The Merkley Resolution would eliminate all filibusters on motions to proceed to a bill and amendments to bills.  To block nominations, ten filibustering Senators would have to file a motion with the Senate to block a simple majority vote and would have to actually debate in order to continue a filibuster.

The flaws with the Merkley Resolution are threefold.  First, it takes power away from backbench Senators and gives sole authority to the Senate leadership and members of the majority party.  Second, this resolution suggests that debate by members of the minority party is the greatest threat to governing and seeks to severely limit it; this resolution entirely ignores and attempts to override the original purpose of the Senate.  Third, it fails to place any restraint on the majority leader’s authority to Fill the Amendment Tree, the real source of the increase in minority filibustering.  Says Darling, “Senator Merkley’s well-intentioned proposal to fix many of the perceived problems with the Senate falls short of effective reform that would allow the Senate to function properly and enable all 100 Senators to actively participate in the legislative process.”

Rather than restraining the minority party, and preventing them from offering amendments, the personal power of the majority leader should be the target of any rules changes.  The Senate should reject any change to the rules that prohibits all 100 Senators from participating in the legislative process.

The Udall Resolution.  The Udall Resolution argues for repeal of the filibuster on procedural, legal, and Constitutional grounds.  Senator Udall contends that Rule XXII of the Senate Operating Rules is unconstitutional and violates the intent of the Founding Fathers.  In testimony before the Senate Rules Committee, Udall said of the filibuster and Rule XXII, “I believe that the requirement in Rule XXII for two-thirds to vote and end debate on a rules change is unconstitutional, is contrary to the Framers’ intent, and violates the longstanding common law principle that one legislature cannot bind its successors.”  But these objections clearly have little basis in fact and strike of mere partisanship.

Udall’s proposal is simple: he wants a one-time vote now to reduce the Senate threshold for passing all legislation.  He would do away with the three-fifths vote for new laws and the two-thirds vote for rules changes in favor of simple majority votes for all proceedings.  Brian Darling, describing Senator Udall’s position on this issue, writes, “To argue that all supermajority thresholds for votes are unconstitutional is inconsistent with a common understanding of the Constitution.”  

The Framers never intended for the Senate to operate like the House of Representatives, with pure majority rule.  Rather, the Framers saw the Senate as a superior body in which members would be forced to put their partisan differences aside and work together for the betterment of the Republic.  If the Udall Resolution were to pass, the Senate would effectively become nothing more than a second House of Representatives, directly subject to the whims of popular opinion and almost certainly less effective at producing truly good legislation.  The Udall Resolution is the most polarizing and least likely of the three resolutions to attract bipartisan support.

The Harkin Resolution.  Senator Harkin’s proposed change to the filibuster rule, despite being the most accommodating, is fundamentally flawed too.  Much like the Merkley and Udall Resolutions, Senator Harkin’s proposal inhibits the minority party from participating in the legislative process, offering amendments, and having adequate time to debate.  Senator Harkin’s proposal intends to progressively lower the filibuster threshold after a series of successive cloture votes.  In a recent press release, Harkin’s office wrote of the proposal:

“On the first cloture vote, 60 votes would be needed to end debate.  If one did not get 60 votes, one could file another cloture vote and [two days] later have another vote.  That vote would require 57 votes to end debate.  If cloture was not obtained, one could file another cloture motion and wait two more days.  In that vote, one would need 54 votes to end debate.  If one did not get that, one could file one more cloture motion, wait two more days, and 51 votes would be needed to move the merits of the bill.”

In 1995, when Harkin first proposed this precedential alteration to the filibuster rule, it was overwhelmingly rejected by members from both political parties.  Lamar Alexander (R-TN), the Senate’s most vociferous critic of filibuster reform, explains, “On the first day of the new Republican majority [in 1995], Senator Harkin proposed a rule change diluting the filibuster.  Every single Republican Senator voted against the change even though supporting it clearly would have provided at least a temporary advantage to the Republican agenda.”

The Harkin Resolution, if passed, would provide Senator Reid and other Senate liberals with unprecedented and immediate new authority.  Senator Alexander best sums up the culture of the Senate: “The reform the Senate needs a change in its behavior, not a change in its rules.”  An important first step for creating better consensus and greater continuity in the Senate is to prevent the majority leader from usurping supreme authority over the legislative process.

Conclusion.  It appears likely at the time of this writing that only the Harkin Resolution will be brought to the Senate floor for a vote.  Members on both sides of the aisle have expressed their dismay with all three reform proposals, but the Harkin Resolution will probably be debated anyway.  All 47 Republicans, as well as six Democrats and Independent Joe Lieberman have stated that they intend to oppose any change to the filibuster rule.  Senators from both sides of the aisle should vote against filibuster reform and instead place a more profound emphasis on changing the behavior and culture of the “world’s most exclusive club.”

The National section of the Weekly Political Forecast is authored by PAI’s Deputy Policy Director.

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