Filibustering the Filibuster
As the new year begins, two threats have been looming over the Senate’s filibuster rules: a lawsuit calling the filibuster unconstitutional and the so-called constitutional option in the Senate itself.
The distinguishing feature of the Senate for more than 200 years has been the protection of minority rights balanced with majority rule. The foundation of that protection has been unlimited debate and unfettered amendment. Unlike the House of Representatives where the majority works its will, limits debate and often permits no amendments, in the Senate the minority can speak and offer its amendments.
It sometimes seems as though no one can discuss the filibuster without reference to the iconic 1939 film “Mr. Smith Goes to Washington.” H.V. Kaltenborn, the CBS radio giant playing himself in that film, broadcasting from the U.S. Senate Press Gallery, describes the filibuster as “democracy’s finest show … the right to talk your head off, the American privilege of free speech in its most dramatic form.”
The lawsuit brought by Common Cause argues that the filibuster is unconstitutional, asserting that because the Constitution stipulates only five supermajority requirements, everything else was intended to be majority vote.
On Dec. 21, U.S. District Judge Emmet Sullivan dismissed the case. He wrote, “Nowhere does the Constitution contain express requirements regarding the proper length of, or method for, the Senate to debate proposed legislation.”
Common Cause which continues to lobby Congress to eliminate the filibuster itself, has not always thought it unconstitutional. In 2005, they argued, “It is an abuse of power to strip the Senate minority of a tool designed to protect its rights — rights both parties have vociferously defended throughout the Senate’s history.”
The more serious threat is that Majority Leader Harry Reid recently flatly declared, “We’re going to change the rules.” He has proposed three moderate changes. Two prevent filibusters on the procedural motions to begin considering a bill and the steps to go to conference with the House. These would reduce filibusters aimed purely at obstruction. The rights of the minority on substance would be protected.
The third change is less persuasive. The requirement that senators filibustering hold the floor would not likely have the desired effects. Senators are rarely shy about defending their filibusters. If leadership believes this tactic effective, it can be employed under existing rules.
Of much greater concern are not the reforms offered but the tactic proposed to make those changes. The assertion that debate can be ended and the rules changed by a simple majority on the first day of a Congress has at its heart the assumption that only majority rule is constitutional. Judge Sullivan’s admonition that the Constitution contains no such requirement while not binding on their decision should inform the Senate.
The constitutional option is sometimes characterized as an existing Senate rule. It is not. While this ploy might succeed, it would require the vice president to ignore Senate rules and the advice of the parliamentarian. If willing to do this, he could declare that only a majority vote is necessary rather than the two-thirds to end debate as the rules require. The Senate has never in the end supported the theory and in 1959 adopted Rule V making it clear that the rules continue from one Congress to the next. This reflects the provision in the Constitution providing that only one-third of the Senate stand for election every two years.
No senator has publicly called for an end to the filibuster. Proponents deny the constitutional option would lead to majority rule. But that outcome would be inevitable. Once the precedent is established, over a short period, majorities will do what they do. They will control debate, amendment, voting procedures and committee ratios. We would have a smaller version of the House where the minority is frequently ignored and marginalized.
The Senate’s filibuster rules can be reformed without destroying its fundamental character, but it will require a bipartisan group of senators to behave in the storied tradition of the Senate. The history of filibuster reform has been rejection of radical options and adoption through compromise of reasonable changes in the rules which put the nation and the Senate first. Sens. John McCain and Carl Levin have come forward with one such proposal.
Adlai Stevenson in his 1897 farewell address to the Senate in an era before there was any way to cut off debate, declared, “By its rules the Senate wisely fixes the limits of its own power. Of those who clamor against the Senate, and its methods of procedure, it may be truly said: ‘They know not what they do.’ ”