The Senate Rules Committee held a hearing yesterday on the filibuster, and the possibility of changing the rules that enable 41 senators to prevent the other 59 from passing a bill or confirming an appointee. They’re not gonna do it.
Democrats, starting with Rules Chairman Charles Schumer of New York, showed data suggesting that the use of the filibuster is at all time highs, with the implication that this is the Republican strategy for preventing anything from happening while they are in the minority.
Republicans, including ranking member Robert Bennett of Utah, tried to turn the tables (I will admit I didn’t see this one coming) by arguing that the Dems score a filibuster every time they file a cloture motion, and that the reason the filibuster count looks so high is that Majority Leader Harry Reid goes for cloture before the Repubs have had a reasonable chance to get consideration of their amendments.
Members of each party (I will confess that I did see this one coming) argued that the other party bears more responsibility for abusing the filibuster and creating bad precedents and a bad climate. Bennett pointed specifically to Democratic filibusters against G. W. Bush’s judicial nominees, which broke a tradition against filibustering judicial nominees. Bennett personally cited former Majority Leader Tom Daschle as the miscreant on that one.
I gather there is no serious proposal at present to change the filibuster rules. Dems were up in arms about the issue when the Repubs were filibustering the health care bill, but the issue has receded somewhat since that bill passed or, as Repubs insist, was “rammed through.” There are some younger senators (but not nearly enough to do anything about it) represented at yesterday’s hearing by Tom Udall, D-New Mexico, who favor change, but they haven’t settled on a proposal (at least Udall hasn’t). It also seems that the longer one stays in the Senate, the more in love one falls with the majesty of the filibuster.
The tone of the Wednesday hearing was more exploratory, as if the question was whether there was anything the Senate could possibly do to cut down on the number of filibusters.
Minnesota’s own Walter Mondale (who, as a young senator, played a big role in changing the rule so that it takes 60 votes, instead of 67, to invoke cloture and break a filibuster) was one of the star witnesses. Mondale doesn’t want to do away with filibuster, but wants to lower the cloture number a little further, perhaps to something in the 55-58 range. A summary of Mondale’s written statement is here.
The current senators treated Mondale with tremendous respect but the show-stealer was an appearance by current Sen. Robert Byrd of West Virginia, who is 92, has been in the Senate since 1959. Byrd, who has been majority leader and minority leader during his long career and has specialized in attention to the Senate rules, doesn’t attend many committee hearings any more. The other senators spellbound as the longest-serving senator in history struggled to read a short statement from his wheelchair.
Here’s an excerpt:
Byrd defends the fiilibuster but denounces its recent overuse by Republicans (“the challenges confronting our nation are too grave and too numerous for the Senate to be rendered impotent in confronting them”). But he didn’t seem to want any rule changes to deal with it. He thinks if modern senators could get over their “fixation with money and media,” filibusters could be overcome the old-fashioned way, by tactical maneuvering within the existing rules and by waiting out the filibusterers. But this won’t work, he said, when senators insist on working a short week and spending most of their time either dialing for campaign dollars or trying to get on TV. His full statement is here.
After he spoke, Mondale and the senators on the committee spent the next few minutes telling stories about Byrd and expressing their admiration. No one was rude enough to mention his early days as a Klansman.
Filibustering rules changes on filibustering
Byrd and Mondale were at odds with each other over a question that would become key if the Senate ever got serious about filibuster reform. Current Senate rules require a two-thirds vote (not a mere 60-vote supermajority, as for ordinary filibusters but 67!) to change the rules.
Back in 1975, when Mondale led the charge to change the cloture rule from 67 to 60, he did it by arguing, and getting supportive rulings from then Vice President Nelson Rockefeller (presiding officer of the Senate) that the Senate starts each new session with a blank slate and therefore can adopt any rules it wants, for that session, by majority vote. This is, by the way, and always has been true in the House. But because roughly two-thirds of the senators are in the middle of their six-year terms when each Senate session begins, Senate tradition has held that the Senate is a “continuing body” and that its rules are permanent, unless two-thirds of the senators agree to a rule change.
This is an aggressive, dicey maneuver, but Mondale used that possibility to force the issue in 1975 and he thinks it could and should be done again. Byrd went out of his way to disagree on that point and to argue that the two-thirds rule is vital to the Senate’s role in preserving democracy.
Things can get pretty grandiloquent on this subject. From what I heard yesterday, we are years if not decades away from the Senate giving serious consideration to changing the filibuster rule, let alone adopting the truly radical notion of majority rule.
Majority rule = ramming things through
I’m pretty sure the words “majority rule” were never mentioned yesterday. The concept was generally alluded to as a horror, usually by saying that the Senate doesn’t want to turn into the House. Derogatory references by senators to the House probably include various horrors, but fundamentally it refers to the fact that in the House, a majority can pass a bill.
Former Sen. Don Nickles of Oklahoma, who served in the Republican leadership during his tenure and who testified yesterday in favor of keeping the filibuster rules exactly as they are, said the rules are necessary to preserve the Senate’s status as a “deliberative body.” He expressed his horror at the idea of the Senate being turned into “a body where 51 people can ram things through.”
Defenders of the filibuster generally argue that without it, the Senate would not be able to ensure full debate. That argument ignores the reasonable proposal that’s been kicking around for years, sponsored by Sen. Tom Harkin, D-Iowa. As described in a recent Christian Science Monitor piece:
“Under the Harkin proposal, the first vote for cloture (the term for ending a filibuster) would require 60 votes, as is current practice. But after a few days had passed, cloture would only require 57 votes. After a few more days, it would require 54, and so on. Eventually a bare majority of 51 votes would be enough.”
Depending on how long was provided at each stage, you could surely provide for full debate, but still eventually force a majority rule vote. Is it “ramming through” no matter how long the opponents are given to make their case?
Mondale, by the way, likes the idea of the Harkin plan, but not the last step. He favors gradually reducing the number of votes needed for cloture, but not the part where eventually 51 votes would suffice. Under that plan, Mondale has told me, the majority would just wait out the minority.
Maybe so, but at least the minority would have a full chance to express its arguments, wouldn’t it? So the filibuster is not about ensuring full debate. It could be about encouraging the majority and the minority to consider compromises that would satisfy both sides. And maybe that would be a good thing. But in the current climate, it is about allowing the minority to prevent the majority from doing anything that the minority opposes.
Constitutional and historical nonsense
Personally, in case you haven’t figured it out from my snotty tone above, I favor majority rule. Defenders of the filibuster frequently refer to the Senate’s special role in the Constitution and to the Founding Fathers.
It’s true, as Sen. Byrd alluded to yesterday, that the framers saw the Senate as a vital bulwark against tyranny by the executive branch and by short-term swings in public opinion. The mechanism they put into their plan to help the Senate fulfill that role was the six-year staggered terms, not the filibuster.
There are many other mechanisms built into the constitutional system to protect minority rights and to prevent mob rule. The filibuster isn’t one of them.
Efforts to tie the Framers to the filibuster are historical nonsense (not that that stops anyone from doing it). The filibuster is not in the Constitution. No framer of the Constitution every advocated for it. There were no filibusters in the early Senate and there was, in fact, a Senate rule, just as in the barbaric House, that allowed a majority to end debate and force a vote. The tradition came about by accident decades later and its most famous use was to enable southern senators to block progress toward equal rights for African Americans.
I would like to see the filibuster abolished. I do not intend to change that position when Republicans gain a majority. On other matters, conservatives and Republicans generally say they are prepared to trust the electorate — not 40 percent of it but the majority of it — to decide these matters.
Maybe my arguments are wrong-headed. But if so, I wish that defenders of the filibuster would base their justifications on real history, the real language of the Constitution, the real track record of how the filibuster is used and an acknowledgement of reasonable proposals like Harkin’s.