Why the Senate Should Retain the Filibuster

Last week’s blog discussed why the Senate isn’t “filibusted” as critics of that procedure allege and why the Senate, unlike the House, isn’t dominated by the majority party. This week’s blog argues the rationale for continuing the filibuster rule in Senate procedures.

Obama has been pushing Majority Leader Reid and the Democrats to get rid of the filibuster so he can get his left-leaning agenda through Congress. At least that’s his position since he’s become President. When Bush was President and Obama was a Senator-in-training in the minority party, he was all for the filibuster as the Democrats’ only means for blocking the evil Bush agenda.

Reid’s recent threat to “go nuclear” and change Senate rules by a simple majority flies in the face of Senate Rule V. That rule clearly states “The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules.” What are “these rules”? They include Senate Rule XXII which requires two-thirds of the Senators to change rules and three-fifths for all other business. The entire Democrat caucus does not contain 66 Senators. Therefore Reid’s threat to go “nuclear” had no chance of passing. Even a Senate rules amateur like me knew that. Nevertheless, Minority Leader McConnell, another Republican dinosaur who along with Boehner needs to be ousted, caved and allowed three of Obama’s seven nominees for the NLRB to be confirmed if Obama would symbolically replace two of the nominees. What a deal!

Democrats have repeatedly warned Republicans in the past not to try to change the rules because the Republicans wouldn’t always be in the majority. Did anyone hear Republicans make the same warning to Democrats last week? I didn’t. McCain and his fellow RINOs couldn’t get to the negotiating table fast enough so they could make concessions to Reid’s empty threats.

The pressure to “reform” the Senate filibuster rules – a euphemism for eliminating the filibuster – represents a serious misunderstanding of the concept of divided government as embodied in the Constitution. Understandably the Democrats want to make it easier for a Democrat President to get his way with Congress. What will happen when there is a Republican President? A Republican Congress? Like Scarlett O’Hara, I guess the Democrats will think about that tomorrow.

Absent the Damoclean sword of the filibuster, what happens to the system of checks and balances that the Founders envisioned in governance when the legislative branch is too cozy with the executive branch? The Founders intended for Congress to protect its constitutional power against the encroachment of the executive branch instead of deferring more power to the White House.

James Madison appealed to this understanding in Federalist 51:

“But the great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others … Ambition must be made to counteract ambition.”

Since the Roosevelt Administration of the 1930s, however, Congress has increasingly become a wholly-owned subsidiary of the Executive when the same party occupies the White House and one or both chambers of Congress. Congress moreover has ceded growing power to the administrative rule makers in government agencies making the Executive more powerful even when his party is the congressional minority. How? Because arguably more enforceable law governs the lives of American citizens today which originates in government agencies than originates in Congress. Just think of the regulations promulgated concerning air and water quality, the use of public and private land, energy exploration, travel, education, welfare, you name it. Who governs these agencies and their regulatory machinery? The President.

Weakening the filibuster’s brake on presidential power by Congress would exacerbate the declining influence of Congress in governing. How? By diminishing the minority party’s participation in legislating, in approving agency appointments, and in confirming judiciary replacements. Congress would become two chambers with “rocket dockets” with no real deliberation and deal-making. ObamaCare and Dodd-Frank legislative monstrosities would become the norm regardless of the party in power.

Congress should pass legislation that appeals to a broad segment of the majority party and some of the minority party. If extremist legislation appeals only to a narrow segment of the majority party, the filibuster should prevail to defeat it. When legislation appeals to the majority party and some of the minority party, it will prevail even if filibustered.

The sense of the US Constitution is violated when the minority party is denied opportunity to influence the political process. The party in the majority has no monopoly on good government ideas. Reasonable legislators should therefore welcome opposing minority ideas to broaden the appeal of laws to the citizenry, assuming citizens pay attention to what’s happening in Congress.

Neither the White House nor the House of Representatives has any incentive to protect the rights of the minority party which Senate rules currently do. The filibuster prevents the President from dominating the Senate, and thereby, the Congress. The filibuster forces common ground to be sought and compromises made. The filibuster prevents radical policy shifts from administration to administration and thus makes for more stable government.

Here’s how.

Even in today’s politically polarized environment, which includes one party’s use of the filibuster to obstruct the other, more moderate legislation will result. The more divergent each party’s ideological positions are the more they are pushed to the center by the filibuster to get anything done. ObamaCare and Dodd-Frank will haunt Americans forever and cost trillions of taxpayer dollars. Neither law could have passed in their present form, if at all, had the filibuster been operative. A scaled down version of ObamaCare and Dodd-Frank might have passed if amended to represent opposing ideologies, and if that had happened both would have been indisputably better law than what we now have.

A second reason for keeping the filibuster is that it makes for better government. Given each party’s ideological tilt, it’s safe to assume that when the Democrats are in charge, their base is going to pull policies to the left. When Republicans are in charge, their base will pull policies to the right. The majoritarian House will easily follow the dictates of the party in power since only 218 of 435 votes are needed to pass a bill. The Senate is a different story if the filibuster isn’t neutralized. Each vote gets more expensive in terms of trading power. Even in the filibuster-proof 111th Congress Democrat Mary Landrieu’s vote cost Democrat Leader Reid the “Louisiana Purchase,” Democrat Max Baucus, the author of ObamaCare, got massive Medicaid concessions, and Democrat Ben Nelson sold his soul for the “Cornhusker Kickback.” It would have been much easier to have passed ObamaCare if only 51 deals had to be made – which a simple majority would require – instead of 60 – which a filibuster requires. The filibuster was toothless because there were 60 Democrat Senators, so no accommodation with Republicans had to be made. However, the law didn’t sail through the Senate because Democrats are politicians first and Democrats second. Their constituents were watching them.

A third rationale justifies keeping the filibuster. If Senate ideology was rank-ordered so that the 20th Senator is less liberal than the 19th and the 50th is less liberal than the 49th, the 60th Senator needed for cloture is less liberal than the 59th and every Senator which preceded him. If Senate bills can pass with 51 votes rather than the 60 needed for cloture, more liberal legislation will pass. If the Republicans are in power, more conservative legislation will pass without a filibuster. When the majority party doesn’t have an overwhelming majority, the process of finding the 60th vote moderates legislation through amendments and compromise. Less may get done during a congressional session, but what gets done is better law.

Here’s a fourth reason for keeping the moderating influence of the filibuster. It works retrospectively as well as prospectively. Suppose Republicans held the White House and both chambers of Congress today. Their base would push for repeal of the hated ObamaCare and perhaps Dodd-Frank. Could they do it? The filibuster would make it much harder. Maybe impossible. There is a chance that parts of ObamaCare that are disliked by both parties could be repealed. There’s a chance that Democrat Senators who are up for reelection and have constituents who dislike the law might see political advantage in partial repeal. But there is almost no chance for total repeal which would require 60 Senate votes. Years if not decades must pass before the enthusiastic supporters of ObamaCare are totally out of the Senate, if ever. So repeal of ObamaCare isn’t likely.

But how about if only 51 votes were needed to repeal ObamaCare? Far-reaching change could follow every administration change. A new administration could undo previous administrations. Subsequent administrations could undo the current administration’s legislative achievements. Political instability would occur making it impossible to plan for the future.

It’s unlikely that the political factionalism will moderate in the future. There is almost no political center in either party. And political factions have long memories. Revenge will be on ideological minds for years to come. History will likely remember Obama as the most divisive President since the Republic began. George Bush may have been divisive but he didn’t work at it. Obama did.

The filibuster could be the best hope for dealing with the political polarization of future administrations. It operates on both the majority and minority parties, albeit in different ways. And it moderates the extremism of each party. A simple majority rule would embolden the extremists in the majority party and antagonize the minority. Whatever comity exists today would evaporate.

There is one change to the filibuster I would like to see. The threat of a filibuster works today as well as an actual filibuster. That is why, with the exception of Senator Rand Paul’s recent filibuster, we haven’t seen the real thing in a long time. That should not be. Real filibusters should expand the debate on controversial bills moving through the Senate. I would be in favor of forcing every Senator who threatens a filibuster to get off of his butt and filibuster. He should stand up on the Senate floor and make his case. Appeal to colleagues who haven’t read the law they are about to vote on. Argue a reasoned position so the public understands the issue if it is inclined to listen.

Threats to filibuster don’t extend debate; they prevent debate by side-tracking legislation and taking no action on it. No one is forced to talk. This cheapens the filibuster by making it cost nothing to the Senator threatening it. Of the hundreds or so “filibusters” that have taken place in the past few decades, only a few involved true debate.

This reminds me of the corruption that occurred among the plains Indians during the 19th century. A warrior who came into physical contact with an enemy – an Indian in an opposing tribe or a white man – was acknowledged for putting his life at risk. For his bravery he was allowed to notch his coup stick – as a gun fighter might notch his gun. In time, the practice became corrupted so that an Indian warrior could get credit for physically contacting an enemy by using the coup stick itself, which was often several feet long. A notch was a notch whether it represented a physical struggle with the enemy or touching him from the relative safe distance of several feet with a coup stick. It didn’t take long before the young bucks in a tribe figured out that they could ride through an enemy camp harmlessly touching opponents left and right with their coup stick. This gained lots of notches, making them look quite brave among their fellows. The practice was called “counting coup.”

“Counting coup” is what happens when a Senator threatens to filibuster but is not forced to perform the actual act. The practice should be terminated immediately.

The nation’s business needs to get done, although I prefer to see that in the quality of laws rather than in their volume or scope. We rarely repeal law – even bad law. No Child Left Behind comes to mind. Instead we patch bad law. The filibuster assures fewer reforms and patches will be enacted. But those that make it will be more broadly appealing in a diverse Republic like ours.

Harry Reid’s warning that the “nuclear option” is still on the table would be a fatal mistake if used, for the same reason he and other Democrats warned Bill Frist not to use it in 2005. Reid has said he seeks only to prevent Obama’s agency nominations from being filibustered and that legislation and judicial nominations would remain subject to 60 vote cloture. But Obama has nominated bad – arguably unfit – candidates before who should be rejected. Janet Napolitano is an example, and her performance as Homeland Security Secretary is Exhibit A of her unfitness for the job.

If Reid somehow finds a way to circumvent the meaning of Senate Rule V and makes non-judicial nominees filibuster-proof, what would prevent Republicans from “going nuclear” in their own way – filibustering all of Obama’s legislation and every judicial nominee?

In 2005 Democrat Senator Ted Kennedy saw the slippery slope that the threat of the nuclear option represented:

“By the time all pretense of comity, all sense of mutual respect and fairness, all of the normal courtesies that allow the Senate to proceed expeditiously on any business at all will have been destroyed by the preemptive Republican nuclear strike on the Senate floor…They will have broken the Senate compact of comity, and will have launched a preemptive nuclear war.”

Good advice. I hope Reid takes it.

A Filibusted Senate?

The legislative debacle by which ObamaCare was passed showed what happens when there is not a functioning filibuster. The 2008 elections gave the legislative and executive branches of government to the same party with sufficient margins in the House and Senate that the minority party – the Republicans – could have taken the next two years off and gone fishing. 

The Senate Democrats had the votes to overcome any Republican filibuster until the death of Ted Kennedy. His Republican replacement, Scott Brown, forced Senate Majority Leader Harry Reid to resort to procedural, if not illegal, chicanery to complete the conferencing required to reconcile the House and Senate versions and pass it into law.

As I’ve noted in previous blogs, ObamaCare was illegally birthed in the Senate in violation of the Origination Clause of the US Constitution. By disemboweling an unrelated House bill for military housing and stuffing the carcass with 2,700 pages of bureaucratic gibberish, the Democrats hijacked the private sector of the US healthcare system. No meaningful Senate debate was allowed among Senate members. No time was allowed for Republicans to inform the American public about the pending law. Reid limited the amendment process in order to rush the bill, which most Senators hadn’t read, to a vote failing to garner a single Republican.

This is what life without a filibuster looks like.

The Senate and the House operate very differently to produce legislation. The House “rocket docket” passes bills very quickly with a simple majority vote. Most House bills that pass have majority party defections. No matter. The majority needs half of the 435 House votes plus one. Therefore, little debate or consensus-building for legislation occurs. If the Speaker allows Representatives to speak prior to a vote, he may limit appeals to influence the pending vote to 30 seconds or a minute.

Unlike the House, things move slowly in the Senate. The minority party may stall a vote by a filibuster, which requires 60 votes to cut off. This compels issues and different points of view to be debated, compromises must be struck, amendments are often incorporated which reshape the original bill, and this continues until 60 votes can be rounded up to overrule the holdouts. Deliberation requires majority leaders to prevent losses among their caucus while minority party votes are wooed and accommodated – except in the 111th Congress. From the 2009 swearing in of new Senators until the February 2010 swearing in of Scott Brown, 60 Senators conducted the business of the Senate. Forty were sidelined. ObamaCare and Dodd-Frank were among the leading examples of the abominable legislation that resulted. This is what happens without the right to filibuster. Whether the left or the right of the political spectrum is the minority the filibuster puts the brakes on extremism.

This past week we heard threats from Reid about resorting to the “nuclear option.” This ominously-sounding parliamentary procedure would have changed Senate rules by simple majority in violation of existing rules. Had this happened as Reid wished, it would have allowed presidential nominees for executive branch positions to have been approved by a simple majority. The rules for approving judicial nominees and legislation would have continued to be subject to filibuster and could only be cut off by the supermajority rule of 60 votes.

A few years back, however, Minority Leader Reid sounded quite different about the filibuster rules change. George Bush was then in the White House and the Republicans controlled the House and Senate, albeit not by filibuster-proof margins in the Senate. The Democrats frequently used the filibuster. Majority Leader Bill Frist grew as tired of the deadlock as Reid is today and threatened the “nuclear option” – a term coined by former Republican Majority Leader Trent Lott – to change the Senate’s rules by simple majority vote in which the Republicans would have prevailed. Democrats became apoplectic.

The filibuster is the last check we have against the abuse of power in Washington. Republicans are in power today, Democrats tomorrow. A simple majority ... should not be able to come in here and change willy-nilly a rule of the Senate.

Well, that was Reid vintage 2005. Harry Reid vintage 2013 should take his own advice. Bullying an agenda through the Senate does not produce good legislation, does not properly vet candidates for executive positions, and does not deliberate the suitability of a judge for a lifetime position.

Several years ago, Common Cause joined four House Representatives and three illegal aliens in Common Cause v. Biden, a lawsuit in federal court challenging the constitutionality of the filibuster. Common Cause claimed the filibuster was “inconsistent with the principle of majority rule.” The four House members claimed the Senate filibuster rule nullified their votes on bills. The illegals claimed they were denied a path to citizenship under the DREAM Act because the Senate couldn’t cut off the filibuster. The judge called the suit frivolous and threw it out. None of the plaintiffs had standing in the case, and Judge Sullivan rightly concluded that …

… to intrude into this area would offend the separation of powers on which the Constitution rests. Nowhere does the Constitution contain express requirements regarding the proper length of, or method for, the Senate to debate proposed legislation. Article I reserves to each House the power to determine the rules of its proceedings…the internal proceedings of the Legislative Branch are beyond the jurisdiction of this Court.

By what logic would the Founders have created a bicameral legislature having two nearly identical houses? In its zeal to advance a political agenda, Common Cause and the individual plaintiffs failed to comprehend that the Founders never intended for the Senate to be a majoritarian body like the House. It is a very different institution. There are two Senators from each state regardless of state size or population, unlike the House which is apportioned by population. Originally, Senators were elected by state legislators (and I think still should be) whereas House members are popularly elected. In each new Congress, the Senate is a continuing body – two-thirds of it remains intact with every election and its rules carry forward. The entire House is replaced every two years and its rules are adopted for each new Congress even though some may carry forward by choice. The Senate rules protect minority party rights to participate in shaping legislation and other matters. House rules do not.

As Judge Sullivan aptly lectured the plaintiffs above, Article I, Section 5 of the Constitution states that “each house may determine the rules of its proceedings.” This means the Senate makes rules governing debate and the House does likewise.

In the first Congress of 1789, each chamber therefore created its own rules of order. It happened that both employed a parliamentary rule that harked back to the English parliament known as “the previous question motion.” This was equivalent to saying, “shall we move to a vote?” or “shall the question by now put?” Nay votes postponed a vote; yea called for a vote. This was so in both House and Senate. It was not a simple majority cloture vote. A nay vote on “the previous question motion” postponed a vote and the legislative body moved on to other business. A yea vote continued debate. In 1811 House rules were changed so that a yea vote immediately ended debate and brought the question to a vote. This is how the House adopted simple majority cloture.

The early Senate sessions continued the previous question motion to end debate and move on without voting until March 1805 when it was dropped from Senate rules. Erroneous folklore has been concocted by those seeking to overturn the Senate filibuster, saying that it was created accidentally by Aaron Burr, Jefferson’s departing Vice President. No it wasn’t. The word "filibuster" wasn't even used until the 1850s – a decade and a half after Burr died. Burr recommended dropping “the previous question motion” because it duplicated the motion for indefinite postponement and because “the previous question motion” had only been used once in the Senate’s history.

The “filibuster by accident” fairy tale originates from the diary of John Quincy Adams, which includes the following account of Burr’s speech to the Senate after his lethal duel with Alexander Hamilton ended his political career:

He [Burr] mentioned one or two of the rules which appeared to him to need a revisal, and recommended the abolition of that respecting the previous question, which he said had in the four years been only once taken, and that upon an amendment.  That was proof that it could not be necessary, and all its purposes were certainly much better answered by the question of indefinite postponement.  (Memoirs of John Quincy Adams, edited by Charles Francis Adams, vol. I, p. 365)

Dropping the “previous question motion” eliminated a way to end debate. That was not problematic in those days because the gentlemanly thing to do was to allow a Senator to speak before a vote, even if winning the support of fellow Senators was futile, at least his position would be recorded in the Senate log. Such was the dignity of early debate and deliberation.

It would be 1837, the year after Burr’s death before a minority block of Whig Senators engaged in an extended debate to prevent a resolution of censure against Andrew Jackson from being deleted by his supporters. It’s unlikely that the Whig minority thought of themselves as engaging in a filibuster.

Seven years would pass before a similar debate tactic was used in 1841 to block the charter of the Second Bank of the United States whose sponsor was Kentucky Senator Henry Clay. When Clay tried to “move the previous question” and end debate by simple majority vote, Alabama Senator William King accused Clay (the two had threatened to duel each other several times) of trying to gag free debate and told Clay he "may make his arrangements at his boarding house for the winter.” John C. Calhoun of South Carolina rose in high dungeon to accuse Clay of a “palpable attempt to infringe the right of speech” and promised to defend the minority’s “undoubted right to question, discuss, and examine those measures which they believe in their hearts are inimical to the best interests of the country.” Missouri Senator Thomas Hart Benton reprimanded Clay for attempting to stifle the Senate's right to unlimited debate. Thoroughly scolded by his colleagues, Clay backed down.

The term filibuster derives through Spanish to a Dutch word which meant “privateer” or “pirate.” It entered the legislative lexicon when Representative Albert G. Brown in 1853, referred to a speech by Representative Abraham Venable against "filibustering" intervention in Cuba – i.e. the practice of overthrowing Central American governments by private US citizens. As political-speak filibuster was used in 1889 as a pejorative for an obstructionist of the political process. It probably was understood to characterize the overthrow of legislative routine and pirate control.

As more states entered the Union and the volume of Senate business grew, so did the practice of filibustering. Senator Robert Byrd, the longest serving member of the Senate and an authority on its history, noted the following in his book The Senate, 1789–1989:

An effort to reinstitute the “previous question” on March 19, 1873 failed by a vote of 25 to 30. Between 1884 and 1890, fifteen different resolutions were offered to amend the rules regarding limitations of debate, all of which failed of adoption.

The point I’m attempting to demonstrate is that the early history of the Senate makes clear that the filibuster was not an accident of history, as its opponents try to characterize it. The filibuster was a creation of early Senate rules. Later Senators had many opportunities to rein in or eliminate the filibuster and resisted it.

In 1917 Woodrow Wilson prevailed upon the Senate to establish a cloture rule to end debate. Senate Rule XXII was enacted which stated that debate may be terminated by the votes of two-thirds of the Senators present and voting. A Senate quorum is 51 Senators, so as few as 34 could cut off a filibuster. On important legislation, however, it is likely that more will be present and voting on the floor, meaning more will be needed to close debate. Two years after Senate Rule XXII was established, it was used to cut off debate filibustering against the Treaty of Versailles. In 1975 the Senate modified the cloture requirement, lowering the number of senators needed to end debate to 3/5ths of those “duly chosen and sworn,” which would be 60 Senators normally.

Most of us have seen the 1939 Frank Capra film starring Jimmy Stewart as Senator Jefferson Smith in Mr. Smith Goes to Washington. Stewart’s character is framed in a land scam and engages in a 24-hour filibuster to defend his innocence. In the 1930s Senator Huey P. Long used filibusters to advance his liberal agenda against bills he believed favored the rich over the poor. Reading Shakespeare and cooking recipes he once held the floor for 15 hours. Senator Strom Thurmond holds the record for the longest filibuster – 24 hours and 18 minutes – to prevent the Civil Rights Act of 1957 from passage.

Few of these kinds of filibusters happen today, however. Just the threat of filibuster produces the same result. In order to prevent filibusters or their threat from bringing the business of the Senate to a halt, Democrat Majority Leader Mike Mansfield in the 1970s implemented a multi-track system for legislation so that bills threatened with a filibuster could be sidetracked while other bills made their way through the Senate.

Taking into account that the filibuster empowers the minority in the Senate, it is remarkable to hear Republican Speaker of the House, John Boehner (R-OH), whine that the Republicans hold only one-half of one-third of the the Congress and White House legislative process. He obvious doesn’t understand the power of the filibuster in the Senate.

Notwithstanding the arguments of its opponents, the Senate should retain the filibuster. In next week's blog I'll give the reasons why I believe that.