The filibuster is fundamental to the protection of the minority’s right to debate and to offer amendments. This has made the Senate a unique body for more than 200 years. That said, the filibuster has been abused in recent years. The solution is to mend it, not to end it.
The Senate majority leader, Harry Reid, is offering mostly reasonable reforms. First, he suggests eliminating the option to filibuster motions to consider. The rights of minority senators would still be preserved, because they could always filibuster the bill itself. Even the threat of this provides them with the leverage they need to offer their amendments.
Senator Reid rightly says that the filibuster should also be eliminated for the three motions necessary to take a bill to conference with the House. The last of his three proposals, instituting the “talking filibuster” to require filibustering senators to take to the floor and go on record, is not likely to serve the purpose intended. The majority leader has the power under existing rules to require those who filibuster to speak.
But, the critical question is not if the Senate rules should be reformed, but how. Senator Reid and a group of freshman senators are leading the fight to use the “constitutional option” to make these changes. This is a controversial assertion that Senate rules can be changed by majority vote on the first day of a new session. This will work only if the presiding officer, the vice president, is willing to ignore the Senate’s rules, precedents and the advice of the parliamentarian to declare by fiat that only a majority vote is necessary to end debate on a rules change, not the two-thirds vote required by the Senate rules. The majority, if it has 51 votes, can then ratify this ruling and make it the precedent of the Senate.
The proponents declare over and over that they do not seek to end the filibuster, merely to make these modest changes. The crux of the problem is that once the precedent is established that a simple majority can change the rules, it can be done at any time. It is inevitable that within a short period of time, the majority will do what majorities do: take control.
Eliminating the supermajority requirement would allow the majority to control the Senate the way the House’s majority controls it. The Senate will then soon have something like the House Rules Committee to enforce limited debate and control what amendments may be offered. The Senate majority leader will be as powerful as the speaker, and the heritage and historic purpose of the Senate will be gone.