The week before Thanksgiving, Senate Democrats took the remarkable step of changing the Senate’s rules in order to confirm three of President Obama’s judicial nominees with a simple majority vote. They accomplished this by ending the filibuster for most presidential nominees via a maneuver known as the “nuclear option.” Whether one agrees with the decision to go nuclear, it made clear that the Senate minority’s power to, in effect, veto nominees or legislation depends on the majority’s willingness to allow them to do so.
Having used the nuclear option to eliminate the filibuster in one area makes it far more plausible to use it in another and another. Indeed, Republicans sourly warned that they would do exactly that in the future should they face any Democratic filibuster of a Republican president’s nominee to the Supreme Court.
Getting rid of the filibuster entirely is not necessarily a bad idea. The fact that the 576,000 people in Wyoming have as many votes in the Senate as the 38 million in California is the minority veto that the Constitution established. The notion that a minority of senators could prevent the Senate from even having a vote goes far beyond what the Framers created.
But the filibuster in one form or another has been an unintentional part of the Senate since the early 19th century and plenty of editorialists — along with at least a few senators motivated either by tradition or desire to preserve individual senators’ power — believe it should remain a part. The challenge for those who want to preserve some sort of minority veto above and beyond the malapportionment of the Senate is to do so in a way that can withstand the majority’s ability to adjust the rules.
The problem is fairly simple. Filibusters were once rare events, the last resort of a minority determined to prevent the majority from acting. As long as filibusters were rare, the majority could tolerate them. In the past 20 years, however, filibusters have become increasingly commonplace, a conventional tactic to prevent action or extract concessions. Indeed, Republicans’ pledge to block all Obama nominees to the D.C. Circuit was so brazen that even Democrats long reluctant to tamper with the rules, including Majority Leader Harry Reid, could no longer tolerate them. Can the filibuster exist without becoming routine?
We think so. One factor behind the explosion of filibusters is the surprising ease of mounting them. This has nothing to do with the imaginary decline of the traditional “talking” filibuster. Long-winded speeches, whether by Ted Cruz, Strom Thurmond, or Jimmy Stewart’s “Mr. Smith,” were always grandstanding aberrations. The ordinary filibuster has always been nothing more than an array of procedural mechanisms to delay a vote. In the hands of a large enough group of senators, these tools can be enough to prevent a vote.
Because there are so many ways to obstruct, even the threat of delay must be taken seriously. Faced with those potential procedural hassles, majorities typically turn to the only mechanism by which to combat delay — “cloture” — a vote by a supermajority of 60 senators to end debate. The key thing is that this procedure depends entirely on the 60 senators who want to move forward, not at all on those who want to stop Senate action. Cloture can fail on a vote of 59-0; in this case, the first of Obama’s judicial nominees failed by a vote of 55-38. So while a majority of senators must struggle to assemble a supermajority and ensure that supporters show up to vote, filibustering senators can literally stay home and watch TV.
This obviously has it backward. Preventing the Senate from voting is the thing that should require effort. The fact that it requires none makes filibustering too easy. Putting the burden on the majority to break a filibuster penalizes those who would like to legislate and creates the false impression that bills and appointments require 60 votes to pass. The latter is particularly frustrating because it obscures the issue, focusing attention on a bill or nominee’s success at attaining a supermajority rather than on the minority’s creation of a supermajority barrier.
The solution to this situation is a simple piece of procedural jujitsu. Rather than requiring 60 votes to end a filibuster, we think 41 senators should have to vote to sustain one — a complete reversal of the current arrangement. That is, after a certain maximum period of debate, senators who wish to delay further would have to periodically produce 41 votes. If not, debate would end, and the business of legislating would move forward. There are obvious procedural wrinkles to iron out, but the point is to make filibustering senators work to obstruct.
This reform has several advantages. First, it addresses the basic unfairness that filibustering senators essentially do nothing to exercise a veto. The physical requirement of merely voting would by itself make obstruction more difficult, forcing filibustering senators to create a coalition and bring all of its members together (repeatedly) to keep debate going.
Second, it makes it clearer to observers what is actually happening, making it possible to hold those engaged in unreasonable obstruction accountable. This is one of the principal complaints of frustrated Senate majorities — that obstruction is rampant yet no one outside the Beltway notices. When filibustering senators must periodically produce the votes to continue, their success or failure becomes the story rather than the majority’s effort to assemble a supermajority.
Third, for Senate traditionalists and those who believe that the apportionment of the Senate does not provide sufficient protection for the minority, it preserves a means for preventing the majority from always having its way. Stopping the majority, however, would require a committed minority willing to bear both the physical and political costs of their action.
Would this make filibusters more costly and (much) less frequent? Absolutely. Would that be enough to preserve this arrangement when the majority confronts a minority committed enough to pay costs of filibustering? The short answer, of course, is that we cannot know for certain. What we do know is that the filibuster, while occasionally controversial, existed with little threat to its existence for the vast majority of Senate history. It was only recently when filibustering graduated from being the tactic of last resort to a conventional legislative maneuver that both sides began making serious noises about getting rid of it. In that sense, the spirit of our proposal is far closer to Senate tradition than the contemporary explosion of filibusters.
To paraphrase Bill Clinton, filibusters can be safe and legal so long as they are rare. Democrats’ decision to go nuclear proved that the filibuster is not sustainable when every bill or nomination is threatened by a minority of senators. Forcing filibustering senators to work for their obstruction may be enough to make filibusters rare again and allow them to survive in future Senates. If one believes that the filibuster is necessary to assure true deliberation, then our reform recommends itself.