Wednesday, February 17, 2010

Time to Change the Filibuster Rule

Legislation recently has been introduced to change the way the United States Senate conducts its business. That legislation calls for ending the use of the filibuster in Senate deliberations. I agree that the filibuster rule should be changed. I do not agree that the right change is to end its use. Instead, I would argue that the requirements for stopping a filibuster should be made more stringent.

Filibusters are a way for Senators who do not agree with a proposition before the Congress to extend the debate on that matter. Because individual Senators have such personal clout inside that body's procedures, their ability to extend debate can often doom a piece of legislation or the confirmation of the presidential appointee. The only way available for the Senate to shut down extended debate is to invoke cloture, or in other words, vote to close the debate. To do so under present Senate rules requires 60 votes or three fifths of all the Members of the Senate.

But the three fifths rule is of fairly recent vintage. Up until 1975 it took two thirds of the Senate or 67 votes to shut off debate. The change at that time was based on the same arguments being used today, namely that a handful of Senators should not be permitted to thwart the will of the majority. In 1975 it was decided that a three fifths supermajority would preserve the ability of dissenting Senators to have their say and perhaps even block action, but would provide a way for crucial business to be conducted.

What was not anticipated by the 1975 "reform" was how much it would change the Senate as an institution. Since that time the numbers of filibusters, threats of filibusters and votes to invoke cloture have skyrocketed. The Senate has become a far more partisan place. Presidential appointments to key positions in the government are regularly held hostage. Some observers contend that the Senate has become dysfunctional.

It would be hard to contend that all of this damage to the institution of the Senate rests with the change of the filibuster rule. But it is hard to ignore the statistical data indicating how much more frequently the filibuster or the threat of filibuster is used compared to thirty-five years ago. And it is also hard to ignore the fact that the filibuster usage could be a key factor in the breakdown of bipartisan compromises within the Senate.

So long as the majority party, whether it was the Democrats or the Republicans, needed two thirds of the Senate to agree before they could act, the need for finding some degree of bipartisan consensus was obvious. Few times, if any, has one party controlled two thirds of the seats in the Senate. But as we have witnessed in recent months, it is possible for one party to have three fifths of the seats. Or, as is more common, it is possible for one party to have almost three fifths of the seats so that with a little wheeling and dealing, the necessary few votes needed to break a filibuster can be found. And the result is that outside and inside pressure is brought for purely partisan approaches to governing.

In the days when cloture required a two thirds vote, the majority leadership had to start with the premise that they could not achieve their goals with a purely partisan agenda. Beginning in the committees and working through to the debate on the Senate floor, the institutional requirement was for some degree, in most cases a considerable degree, of bipartisan consensus and cooperation. The gentleman's club approach that was fostered did not please many of the partisans outside the doors of the Senate, but it did produce an atmosphere conducive to bipartisan governance.

For all of those reasons, the current proposals for further diminishing the vote needed to invoke cloture are precisely the wrong formula. Bitter partisanship will florish and the Senate will become more dysfunctional.

Much of America is hungering today for Democrats and Republicans to find a way to cooperate and solve the vexing issues of our time. They see the Congress as a bickering impediment to finding national solutions. Bipartisan governance would be a welcome change. That change could begin with changing the filibuster rule back to where it was just a few years ago; if you cannot get two-thirds of the Senate to agree, you cannot proceed.

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