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The Sausage Factory

Filibuster Reform: Not All That It’s Cracked Up To Be

Not long ago, Senator Tom Harkin wrote a letter to the editor of the Washington Post, disputing an opinion piece that claimed no one has a plan to improve the efficiency of the Senate. The Senator himself proposed a plan: Abolish the filibuster. Eliminating this parliamentary maneuver, the Senator writes, will make the body more efficient and “also lead to more compromise in the Senate.”

Of course, eliminating the filibuster as we know it will make passing legislation easier. Reform advocates note that the Senate was designed to reflect and protect the interests of sovereign states, which is why each enjoys equal representation. The Framers, they argue, never specified that major legislation should require 60 votes for passage. They are simply content to turn the Senate into a majoritarian body. Such arguments over the filibuster, however, miss the root cause of the problem. People, not the process, are the problem. The filibuster can promote compromise, if only individual Senators are ready and willing to do so.

Former Senate Parliamentarian Robert Dove and former Senate staffer Richard Arenberg, in their recently published apologia, Defending the Filibuster: The Soul of the Senate, note that the filibuster does in fact bring ideologically divergent Senators to the table. In their experience, the ability of an individual or group of Senators to halt legislation spurs on a bill’s sponsor on to find a counterpart in the opposing party to work with him for passage. Indeed, a lawmaker will attempt to find a colleague as far as possible on the opposite end of the political spectrum, since that improves the likelihood that the Senators between them will support the measure. Such overtures, they say, are done at the very beginning of the legislative process, so this effect of the filibuster is not always appreciated.

If the filibuster can precipitate a compromise between Senators from the two different parties, then it stands to reason majority Members can more easily use the tactic to shape a piece of legislation. The use of the filibuster can certainly improve the chances of a compromise when the majority party supports a certain piece of legislation, but a handful of Senators are displeased with a provision or two. In such cases, the party’s holdouts—likely moderates—can pledge their votes for cloture in exchange for striking a portion or adding something to the legislation.

Were it not for the filibuster, Congress would have passed a much more liberal version of Obamacare (which, as it is, was still too liberal for a good many voters). Senator Joe Lieberman, an Independent who caucuses with the Democrats, opposed the so-called public option, a health insurance program that was to be offered by the government. When the House passed a version of the bill including the program, he suggested that he would vote against cloture. His colleague, Senator Ben Nelson, a Democrat, likewise threatened to join a Republican filibuster if the bill provided funds for abortion. The Washington Post reported, “Nelson is one of five moderates in the Democratic caucus demanding changes to the legislation, forcing Reid to balance their concerns with those of liberals as he seeks to maintain the 60 votes needed to push the bill across the finish line.” Both Senators Lieberman and Nelson voted in favor of the Senate’s healthcare legislation.

We also can’t forget that the filibuster itself is the subject of compromise. When the filibuster has proven to be particularly vexing, groups of Senators often come together to eliminate it. For instance, in the 1950s, Senator Clinton Anderson repeatedly attempted to pass a resolution to reduce the votes needed for cloture to pass to a simple majority. When it looked like it might be successful in 1959, Senate Majority Leader Lyndon Johnson suggested that reform opponents accept a compromise whereby the threshold for a cloture vote was reduced, but still required a supermajority. A similar situation played out at the beginning of this Congress. When Senators Tom Udall, Jeff Merkley, and Tom Harkin pushed for reforms in January 2011, Majority Leader Harry Reid and Minority Leader Mitch McConnell came to a so-called “gentleman’s agreement” whereby the Republicans would refrain from filibustering legislation and the Democrats would no longer obstruct Republican amendments. (The agreement, for the record, did not last very long.) Additionally, it’s not just the leadership that gets in on the act. In 2005, when Democrats repeatedly filibustered President George W. Bush’s judicial nominations, the Republicans threatened to use the so-called “nuclear option” to reduce the cloture requirement to a simple majority. Since that move would have been so toxic, a bipartisan group of moderate Senators, including Nelson and Lieberman, compromised to keep the filibuster. (The group was given the goofy name “Gang of 14”.) The Republicans pledged to vote against any changes to the filibuster and the Democrats promised to refrain from filibustering judicial nominees, except in extraordinary circumstances. Granted, this does not directly counter Senator Harkin’s claim that the filibuster reform will promote compromise—nor does it disprove that the filibuster empowers the extremes—but it does illustrate that, when necessary, Senators can compromise.

On the other hand, it is not at all clear how the changing the filibuster will improve the likelihood of compromise. Dove and Arenberg point out—along with others before them—that a simple majority cloture would merely turn the Senate into a smaller, less powerful version of the House. House majorities control the debate and routinely exclude minority parties, since the rules are designed to afford the dominant party the ability to pass its agenda. The Senate, however, protects the rights of the minority. With the filibuster gone, the majority could just pass something with its Members alone—no need to reach out to anyone. Further, once the minority sees that the majority will not consult them on anything, they would also have no incentive to refrain from obstructing in other ways. Thus, the 60-vote supermajority needed to override the filibuster should encourage the majority to seek consensus with at least a handful of members of the other party—and in fact has precisely that effect according to Dove and Arenberg.

As Dove and Arenberg point out, Senators’ personalities, not parliamentary procedure, is the primary cause of the body’s dysfunction.  The Senate can be tremendously productive when populated with men and women who work together to compromise on legislation crucial for the good of the country. Senator Everett Dirksen, a Republican, was the Minority Leader, but his support was decisive in passing the Civil Rights Act of 1964. He was never a Majority Leader, but the body has recognized his contributions by naming one of its office buildings after him. More recent examples include Majority Leaders, Senators George Mitchell and Tom Daschle, both Democrats.  The two were fierce partisans who would maneuver for the best deal possible, but would in the end, not forget to make the deal itself such as ratification of the North American Free Trade Agreement and the creation of the World Trade Organization by Mitchell and the passage of No Child Left Behind by Daschle.

Today’s Senate leaders do not compare with those of the past. For good or ill, Senate Majority Leader Harry Reid’s leadership style is unlike any of his predecessors in either party. In his tenure as Majority Leader, he has prevented the minority from offering amendments by using a parliamentary tactic known as “filling the amendment tree” more frequently than any predecessor. (We have written about the tactic here.) Most recently, he went on the floor of the Senate to launch a personal political campaign attack on the character of the Republican presidential candidate Mitt Romney that later was demonstrated to be, to put it gently, a fabrication.  While the attack was not explicitly a violation of Senate rules, it was an unseemly use of official resources for campaign purposes. If Romney wins and the Democrats retain control of the Senate, it is hard to see how this canard will help foster a cooperative relationship between the executive and legislative branch. As with the abuse of the filibuster and filling the amendment tree, this incident suggests that the rules are not the cause of dysfunction in the Senate—personalities are. Perhaps Senator Reid is a product of his times, and merely reflects the pugnacious polarization in American society today.

It is too bad for Reid that he has not been a more effective Senate leader, mostly because he could have been known as a consensus-builder—and those guys always get good billings in the history books. Despite what partisan Democrats suggest, compromise on healthcare reform was a distinct possibility. A number of Republican Senators, such as Olympia Snowe of Maine, Chuck Grassley of Iowa and Mike Enzi of Wyoming, would have more than happy to help develop a bipartisan compromise that could have exceeded sixty votes. Each of these Republicans was a member of the “Gang of Six”, a group that tried to craft a bipartisan healthcare reform deal. Senator Snowe even voted for a Democratic version of healthcare reform in committee. “When history calls, history calls”, she said. There is plenty of blame to go around for the Senate’s fruitless sessions, but majority leadership bears special responsibility. It controls the floor, so it can win passage by opening up the floor to minority amendments, whose sponsors are likely to support the final bill if their contribution is successful. Make no mistake: Today’s status quo is a result of failed Senate leadership, not an excess of procedural power for ideological backbenchers.

In the absence of a Majority Leader willing to work with at least some colleagues in the minority, the filibuster changes from a tool to promote bipartisan consensus to a bludgeon the excluded minority uses to grind the Senate to a halt.  Thus, regardless of who holds power, every majority criticizes the filibuster, since it is doubtless the minority’s favorite tool to obstruct the majority’s agenda—a top priority in such a highly polarized Senate. Yet proponents of the filibuster would argue that this is exactly the maneuver’s purpose, which is why every minority thinks it’s the best thing since sliced bread.

Legislative paralysis in the Senate is frustrating, but criticizing the filibuster does not do a whole lot to solve the problem. Reforms to the filibuster are possible and worthwhile.  The Senate could, for instance, limit the use of the filibuster on the “motion to proceed”, the legislative tool necessary to bring bills to the floor of the Senate for consideration, in exchange for eliminating the ability of the Majority Leader to block minority amendments by “filling the tree.” Simply reforming the filibuster, however, will not likely promote compromise. It is a fool’s errand to try to treat the symptom of a problem while ignoring its systemic causes.

Compromise is difficult, but filibuster reform is no substitute for the leadership necessary to end the dysfunction of the Senate.  Perhaps only when the voters decide to reward individual Senators for bipartisan cooperation and punish those responsible for our national incivility will the Senate become a more productive body.

 

Work consulted: Arenberg, Richard A. and Robert B. Dove. Defending the Filibuster: The Soul of the Senate. Bloomington: Indiana University Press, 2012

Mark Strand is the President of the Congressional Institute and Timothy Lang is a research assistant. The Sausage Factory blog is a Congressional Institute project dedicated to explaining parliamentary procedure, Congressional politics, and other issues pertaining to the legislative branch.

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