McConnell and Schumer Need to Make the Most of This Moment

op-ed appeared in The Hill on 12/16/21

Richard A. Arenberg and Senator Carl Levin

Senate Majority Leader McConnell (R-Ky.) and Democratic Leader Schumer (D-N.Y.) need to act together — right now — for the good of their institution and for the future of the nation.

The two pending runoff elections in Georgia provide a unique opportunity to maintain the useful legislative filibuster, but to reform it by eliminating its abuses and excesses.

The 60-vote requirement to invoke cloture and end debate fosters negotiation and bipartisan compromise — the twin pillars of the Senate’s unique protection of minority rights to debate and amend. Both would be lost without the legislative filibuster.

During this period of our recent history when political divisions seem so much deeper and partisanship so often bitter, the filibuster’s ability to force the majority party to reach across the aisle is particularly critical and should also be recognized as an important value in a democratic society as diverse as ours.

The abandonment of the filibuster would only exacerbate polarization by embracing one-party rule. It would strip the Congress of the only procedural path to forcing negotiation and compromise.

The renowned political scientist, Donald Matthews, in his landmark book, “U.S. Senators and Their World,” described it well: In 1960, he wrote of the filibuster, “While these and other similar powers always exist as a potential threat, the amazing thing is that they are rarely utilized.” The problem is while “rarely utilized” it is frequently threatened and too often allowed to succeed because the majority is unwilling to force the filibusters to filibuster thus putting the threat to the test.

As recently as 2017, 61 senators — 32 Democrats, 28 Republicans and one independent wrote to McConnell and Schumer expressing their support for the legislative filibuster. They declared that they were writing, “… to urge you to support [their] efforts to preserve existing rules, practices, and traditions as they pertain to the right of Members to engage in extended debate on legislation before the United States Senate.” They continued, “We are mindful of the unique role the Senate plays in the legislative process, and we are steadfastly committed to ensuring that this great American institution continues to serve as the world’s greatest deliberative body. Therefore, we are asking you to join us in opposing any effort to curtail the existing rights and prerogatives of Senators to engage in full, robust, and extended debate as we consider legislation before this body in the future.”

As important as the legislative filibuster is, it needs to be reformed on a bipartisan basis.

The timing is crucial because it remains unclear which party will be in the majority. Majorities typically defend rules that benefit the majority and oppose those that empower the minority, so that as party control goes back and forth in the Senate, so do the positions of the parties. That is why it is so critical to act now — prior to the Georgia runoff elections.

If negotiations were immediately initiated by the Senate leadership, there would be a good chance of adopting improvements to the rules.

Senators making judgments concerning changes in the rules might then approach these proposals with the nation’s best interest foremost in mind.

The needed filibuster reforms in the rules would limit debate on both the motion to proceed and on the motion necessary to send a bill to conference with the House of Representatives. These changes would expedite legislation and reduce the frequency and success of threats of filibusters intended mainly to obstruct the debate and consideration of measures.

Filibusters that have the intent of promoting compromise and debate serve a useful purpose, unlike those that occur on the motion to proceed and/or the motion to go to conference, which are abusive because they are efforts to obstruct debate.

Such reform would retain the right of the minority to debate and to filibuster legislation when the Senate has begun deliberation.

In January 2013, the Senate did act on a bipartisan basis to make several similar needed rules changes, some on a permanent basis and some temporary. This was done to avoid the use of the “nuclear option” which violated the rules. Then-Senator Levin — as part of a bipartisan group of eight senators — proposed changes to the leaders of both parties, Sens. Harry Reid (D-Nev.) and McConnell. These changes were largely adopted by the leaders.

In the end, the Senate reached a bipartisan agreement. Adhering to its existing rules and precedents, the Senate adopted S.Res.15 by a 78-16 vote and S.Res.16 by 86-9. While changes in the latter were permanent, the important changes in the former were subject to a sunsetting provision at the end of the 113th Congress, thus making them temporary. Our proposals are similar to what was done in 2013. We would permanently change the rules to limit debate on motions to proceed. We would also limit debate on the motion necessary to take a bill to a conference committee. No matter the outcome of the Georgia runoffs, the Senate will enter 2021 with an extremely narrow majority. Gridlock and excessive partisan polarization are likely to continue. Joint action by the leadership similar to what we are proposing, is the best and perhaps only route to restoring the Senate’s unique role as “The World’s Greatest Deliberative Body.”

Carl Levin, a Democrat, served as a U.S. senator from Michigan from 1979 to 2015; in November 2013, he was one of three Democrats to vote against the use of the “nuclear option” to overturn a ruling by the President Pro-Tempore that created the precedent — in violation of the Senate rules — that a simple majority is sufficient to invoke cloture on judicial nominations except for the Supreme Court. Richard A. Arenberg, co-author of “Defending the Filibuster,” is interim director of the Taubman Center for American Politics and Policy and a visiting professor at Brown University. He is a former senior aide to Sens. Paul Tsongas (D-Mass.), Carl Levin (D-Mich.) and Majority Leader George Mitchell (D-Maine) for 34 years. Follow him on Twitter @richarenberg