Policy

POLICY

Reforming a Broken Senate: Filibuster Reform

"[Requiring a supermajority] would mean the fundamental principle of free government would be reversed. It would be no longer the majority that would rule; the power would be transferred to the minority."
James Madison, Federalist Papers No. 58

"[I]f the sense of the smaller number will overrule that of the greater ... [the result will be] continual negotiation and intrigue; contemptible compromises of the public good."
Alexander Hamilton, Federalist Papers N. 22

 

Traditionally, the Senate has functioned as a body that facilitates the exchange of ideas and promotes interaction across party lines. Currently, however, abuse of the filibuster has transformed the Senate into a dysfunctional body incapable of constructive deliberation on almost any issue. Members of both parties have abused this tool, which developed by mere accident. In its present form, any one senator can object to proceeding on a measure. The filibuster usually takes the form of an objection to proceeding to debate a measure, or to voting on an amendment or final bill. In order to overcome the objection, a cloture motion must be signed by 16 senators, presented on the Senate floor, and then voted upon. Three-fifths of senators must vote for the cloture motion for the Senate to proceed to debate or vote on the matter. As a result, 60 votes - rather than a simple majority -- are required to pass nearly any legislation. Over the past two years, the filibuster has crippled the Senate, eroding bipartisanship, compromise, accountability and the government's ability to function efficiently. To return the Senate to a more collegial and cooperative body, where both sides have incentives to engage in the lawmaking process, ending or severely limiting use of the filibuster is required.

Some simple statistics highlight the present predicament. From roughly 1920 to 1970, filibusters averaged one a year. In stark contrast, in 2005-2006, there were an average of 34 cloture motions filed to end filibusters, and in the 2007-08 Congress there were 139 cloture motions filed, roughly 70 a year. So far in the current session (2009-2010), 132 cloture motions have been filed.

The stories behind these startling statistics illustrate just how detrimental to government the filibuster can be. According to the Washington Post, a president must fill over 500 Senate-confirmed positions for the government to operate at full capacity, and this number does not include judges, ambassadors, prosecutors, or federal marshals. Because of the 123 cloture motions filed since President Obama took office, many agencies have been forced to operate without senior staff, roughly one of every eight federal judgeships remain vacant, and as of September 2010, more than 190 presidential nominees awaited confirmation.

The filibuster also adversely impacts the important oversight responsibilities of key committees. Authorizing committees have specialized knowledge of agencies within their jurisdiction, and traditionally draft bills defining the contours, oversight, and reform of federal programs. Unfortunately, the paralysis caused by abuse of the filibuster has meant authorizing legislation does not receive a floor vote. Consequently, money is appropriated without proper congressional authorization, effectively undermining critical oversight.

Reform of the filibuster needn't necessarily require its elimination. But any meaningful reform should promote greater opportunities and time for senators to consider and debate legislation. If the filibuster is not eliminated, filibustering senators should at the very least be forced to hold the floor continuously. One publicly discussed reform proposal, for example, would require that during the first 24 hours of a filibuster, five filibustering senators would need to be present, the second 24 hours would require 10, and thereafter the filibuster would require 20 members to remain on the floor continuously. As it stands now, anyone tuning in to C-SPAN to watch the Senate floor during a filibuster sees an empty chamber.

It wasn't supposed to be this way. The founding fathers, who needed a supermajority to approve any action under the Articles of Confederation, saw firsthand how such a requirement renders a government powerless to act. In response, they specifically limited supermajority requirements in the Constitution to treaties, impeachment, veto overrides, constitutional amendments, and expulsion of members. In their view, protecting the minority meant protecting the right to be heard, to offer amendments, and to cast votes that count. For most of the Senate's history, senators have acted in accordance with that vision. It is only in more recent times, as bipartisanship has broken down and the use of the filibuster has increased drastically, that the Senate has changed course. It is time to end this destructive practice and return the Senate to a functioning body.

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Testimony of Sarah Binder, Senior Fellow, Brookings Institution, before the Committee on Rules, U.S. Senate, April 22, 2010.

Even after a cloture vote to succeed is successful, a lone senator can insist that the Senate conduct no other business for 30 hours after the vote - another rule in need of modification.

U.S. Senate, Senate Action on Cloture Motions, http://www.senate.gov/pagelayout/reference/cloture_motions/clotureCounts.htm

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