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In Defense of the Filibuster

The twin pillars of the Senate’s historic role are the rights of each senator to speak and offer amendments. These characteristics underpin the protection of Senate minorities.

The filibuster and related rules play a fundamental part in that protection. This has made the Senate a unique body for more than 200 years.

However, it is not only “preserving the power of the minority” which is at stake.

The rules of debate and the supermajority requirement established by Rule XXII (the cloture rule) not only serve to protect the minority, they foster deliberation and compromise, discourage unchecked majority control, moderate extreme outcomes, avoid precipitous decision making, discourage domination by the more populous states, ensure the role of the legislative branch in oversight of the executive and assure the role of the Senate as a counterbalance to the majoritarian House of Representatives in our system of checks and balances.

All of that said, the filibuster has been abused in recent years. This month’s close encounter with the “nuclear option” centered on Republican filibusters of a number of President Obama’s executive branch appointments.

The obstructionism drove the Democratic majority to the brink of an unwise solution. The specific rule change sought was reasonable. Former Senate Parliamentarian Robert Dove and I, said in our book, Defending the Filibuster: The Soul of the Senate, that presidents are largely entitled to the executive branch officers they want and that, at least for positions below cabinet level, debate should be limited or ended by a simple majority vote.

The problem arises with the way Democrats proposed to make these changes in the rules – the use of a procedure outside of the Senate’s rules and precedents, the “nuclear option.” Argument over the “nuclear,” sometimes called “constitutional” option, is more than 200 years old.

Article I, Section V of the Constitution empowers each house of the Congress to write its own rules. Senate Rule XXII requires a two-thirds vote to end a filibuster against a rules change. This means that changing Senate rules must be a bipartisan matter.

No one should be fooled. If the Senate establishes the precedent that debate can be ended by a simple majority vote, the majority would do what majority’s do. They seize control and write rules to enforce that control

The Senate would inevitably become a body, like the House of Representatives, simply controlled by its majority party. In the House, the minority is rarely consulted, speech can be severely limited and amendments are often not permitted at all.

As poisonous as the current atmosphere in Congress is, on recent issues like immigration reform and the farm bill and at times of crisis when shutdown of the government or default on its debts have been threatened, it is nearly always the Senate which is the cradle of the compromise.

This is because, unlike the House, the lines of communication among the leadership remain open. Communication is open, because given its rules, particularly the filibuster; the Senate cannot be operated day to day without some cooperation between the majority and minority parties.

In fact, the events this month regarding the “nuclear option” itself demonstrates this. Senators of both parties were able to enter a room (the historic old chamber of the Senate) and speak frankly and directly to each other leading to a compromise.

There is little question but that the filibuster has been abused in recent years by Senate minorities. This is bad behavior which will not be resolved by changing the rules. The solution can only come from the resolve of senators themselves.

Secretary of State John Kerry in his great farewell address to the Senate this January echoed that conviction held by many before him. He declared, “I do not believe the Senate is broken–certainly not as an institution. There is nothing wrong with the Senate that can’t be fixed by what is right about the Senate… There are moments of great frustration, for the American people and for everybody in this place. But I don’t believe they are the fault of the institution itself. It is not the rules that confound us per se. It is the choices people make about those rules.”

Kerry went on to say, “[T]he problems we live through today come from individual choices of Senators themselves, not the rules… I leave here convinced we can keep our Republic strong. When President Kennedy observed that ‘our problems are manmade; therefore they can be solved by man,’ he was talking about a much more literal kind of nuclear option than the euphemism we use today to discuss Senate rules. But his vision is just as important for us to recognize in our time, whether we are talking about the ability of Senators to debate and vote or about the issues on which they do so. It is still true today, as he said 50 years ago, that ‘reason and spirit have often solved the seemingly unsolvable, and we believe,’ he said, ‘they can do it again.’”

When I came to the Senate many years ago with another Massachusetts senator, the late Paul Tsongas, experienced senators knew and often expressed that the filibuster was valuable and fundamental to the Senate, but to protect it, it must be used with restraint.

This month the current minority faced with the threat of the majority seizing the reins of the Senate, rediscovered that restraint.

Some of the majority faced with the consequences of using shortsighted means for short-term gains also showed that restraint. The Senate did what the Senate does, it sought compromise.

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