Filibuster Reform is “Unwise”
I can understand the temptation to change the rules that make the Senate so unique — and, simultaneously, so frustrating. The Senate was designed to be different, not simply for the sake of variety, but because the Framers believed the Senate could and should be the venue in which statesmen would lift America up to meet its unique challenges.
Filibuster reform is a mistake and it will transform the Senate into an institution not envisioned by our Founding Fathers. Our Founders wanted Senators to be statesmen capable of compromise and negotiation in the face of the threat of unlimited debate and amendment. Dodd correctly recognizes that filibuster reform will not solve the problems of the Senate; it will destroy the rights of individual Senators to participate in the process as envisioned by the Founders. Three Cheers to Senator Dodd!!!
Dodd argued yesterday that Senators should resist the urge to convert the Senate into a smaller version of the House of Representatives.
I have heard some people suggest that the Senate as we know it simply can’t function in such a highly charged political environment, that we should change Senate rules to make it more efficient, more responsive to the public mood, more like the House of Representatives, where the majority can essentially bend the minority to its will.
This argument is critical, because the legislative branch of the federal government would be denigrated if the Senate changed the rules in an effort to expedite legislation or nominations. Dodd understands the concern that a stubborn minority can force the majority to bend to its will, yet filibuster reform is not the appropriate solution to that problem. The solution is for Senators show a willingness to sit down and talk out problems while respecting the tradition and rules of the Senate.
That level of senatorial comity has not existed for a few years and both parties are to blame. Democrats filibustered Bush judicial nominees in 2005 and Republicans responded by threatening the unwise parliamentary maneuver of ridding the filibuster for judicial nominees under the pre-text that filibustering is unconstitutional. Now liberal Democrats want to use the same argument that they fought against in 2005 to claim that the filibuster is unconstitutional. The filibuster was constitutional in 2005 and it is now.
As I wrote in October on Red State, President Obama is now in favor of the filibuster even though he participated in filibusters in 2005 against Supreme Court Justice Sam Alito and John Bolton to be U.S. Ambassador to the United Nations.
The filibuster is contained in the Senate Rules (Rule 22) and merely protects the right of extended debate by Senators before a final vote is scheduled on a matter. The rule specifies that after 16 Senators sign a cloture petition, a petition to shut off debate, the Senate needs 60 votes to end debate. The evidence suggests that the left is preparing liberal Senators to push for the elimination of the filibuster in the next Congress if they hold onto a slim majority.
It is in the interest of the President to change the rules of the Senate to allow his nominations to get through the Senate without the threat of a filibuster. Dodd plead with members of his own party to pause before destroying the institutions and traditions of the Senate by limiting the rights of all 100 members.
To my fellow Senators who have never served a day in the minority, I urge you to pause in your enthusiasm to change Senate rules. And to those in the minority who routinely abuse the rules of the Senate to delay or defeat almost any Senate decision, know that you will be equally responsible for undermining the unique value of the United States Senate, a value greater than that which you might assign to the political motivations driving your obstruction. But in the end, this isn’t about the filibuster. What will determine whether this institution works or not, what has always determined whether we will fulfill the Framers’ highest hopes or justify the cynics’ worst fears, is not the Senate rules, the calendar, or the media. It is whether each of the one hundred Senators can work together – living up to the incredible honor that comes with the title, and the awesome responsibility that comes with the office. Politics today seemingly rewards only passion and independence, not deliberation and compromise as well.
Senator Dodd’s history as the longest serving U.S. Senator from Connecticut should hold some weight for those liberals who would like to toss the rules and traditions of the Senate for the short term gain. They may control the agenda of the Senate for two years, but the price that they will pay when they are back in the minority is unconscionable. Short term gain in power is no reason to toss aside the long tradition of the Senate as the most deliberative body in the world.
Ezra Klein and Dylan Matthews of the Washington Post provided a good review of the filibuster reform proposals on the table right now:
Tom Udall is the only senator who appears open to eliminating the cloture requirement altogether, and even he’s not explicit about that.
Senator Udall of New Mexico is a proponent of the idea that the Senate can change rules in a new congress with a simple majority. It is the same so called Constitutional Option that Republicans toyed with in 2005. Udall argues the following:
When the authors of the Constitution believed a supermajority vote was necessary, they clearly said so. And while the Constitution states that we may determine our own rules, it makes no mention that it require a supermajority vote to do so. In addition, a longstanding common law principle, upheld in Supreme Court decisions, states that one legislature cannot bind its successors. To require a supermajority to change the rules, as is our current practice, is to allow a Senate rule to trump our U.S. Constitution and bind future Senates. This should not be.
The problem with this argument is that, unlike the House, the Senate is a continuing body. There is no rule that makes an exception to changes in the Senate’s rules during the first few weeks of a new Congress. For example, what if a Senator took to the floor in a new Congress and proposed a rule stating that “it shall be out of order in the Senate, subject to a 67 vote (or 80 votes for that matter) threshold, to consider any bill, resolution or any other legislative matter infringing on the 2nd Amendment right of all Americans to Keep and Bear Arms.” Could Senators adopt a new pro-gun rule with 51 votes to make anti-gun initiatives out of order in the Senate? According to Udall of New Mexico, the answer is yes. I bet the Center for American Progress and MoveOn.org would have a fit if that proposal was proposed in the new Congress and you know what — it would pass.
Another interesting question is whether the 2/3rds requirement for for suspending the rules of the Senate expires at the end of each Congress, allowing Senators to do whatever they want. In other words, do the rules go away in every new Congress and if so, can Senators ignore precedent and introduce legislation without the requirement of an amendment being read by the Senate before consideration (Rule XV)? Do all Points of Order disappear in the new Congress (Rule XX)? Does the Senate fall into anarchy with no rules governing the procedure to adopt new rules or change the rules?
I don’t think many believe that the Senate should operate with new rules every Congress governed by the party with a simple majority when the Senate is a continuing body. Senator Chris Dodd thinks not and many other liberals have heartburn over the idea that a Republican controlled Senate in 2013 could impose personal accounts for Social Security, install hard right judges and repeal all gun control initiatives without liberals having a substantive role in the legislative or nominations process.
Another proposal on the table is Senator Michael Bennet’s (D-CO) proposal to reduce cloture to 55 and Senator Tom Harkin’s (D-IA) proposal reducing the numbers of votes needed to get to cloture after every vote. According to Klein and Matthews.
Michael Bennet’s proposal only reduces the requirement to 55, and then only in certain circumstances. Tom Harkin’s plan has a gradually reduced cloture requirement, which could clog up Congress even more by forcing the majority to wait weeks until the requirement is low enough.
These are also unwise chipping away at the rules of the Senate. Senator Frank Lautenberg has his own proposal that, according to Ezra Klein would force member to conduct a filibuster by actually being on the Senate floor and debating.
Lautenberg’s proposal is more modest. Called the Mr. Smith Bill (Lautenberg brought a cardboard image of Jimmy Stewart from the film to the hearing), the bill would allow the Senate majority leader to call an immediate cloture vote as long as there is no discussion occurring on the Senate floor and the deadline for amendments has passed. This would force filibusters to actually be conducted on the floor — hence the “Mr. Smith” moniker — if the opposition wants to take advantage of the two-day “ripening period” before the Senate can vote to end a filibuster
These proposals fly in the face of the fact that the filibuster rule is not a problem. The Senate has a problem that members refuse to respect each other.
Sam Stein of The Huffington Post wrote about Senator Dodd’s comments on MSNBC on February 17, 2010 on Morning Joe. Senator Dodd defended the filibuster rule in the Senate and urged newer members to avoid the “foolish” idea of filibuster reform. Old bull members of the Senate understand the tradition of extended debate and the free amending process in the Senate as sacrosanct. Newer members of the Senate want to take a run at the filibuster to constrain the rights of the minority party and individual members in an effort to give more control to the party in power. They may be engaging in a good faith effort to make the Senate better, but filibuster reform rules changes are destructive to the institution and will not make the Senate a better institution.
The video below is courtesy of TPM Muckraker containing Dodd’s comments on Morning Joe.
Dodd said that filibuster reform is a bad idea. “I think that’s foolish in my view. You can write all the rules you want. At the end of the day if the chemistry isn’t there [it won't work].” Dodd is correct.
The left is promoting the idea that the Senate is not a continuing body, therefore the Senate’s rules can be changed by a simple majority vote. This is false, because most experts in Senate procedure consider the Senate, unlike the House, to be a continuing body that requires a rules change of 2/3rs vote, not a simple majority. Lefties are preparing for a big fight in January and conservatives, moderates, liberals and fair minded Americans need to dig in and fight the terrible idea of Filibuster Reform.