Is this the end for the filibuster?

November 9, 2012

In 2008, Barack Obama promised to change the way Washington works. In 2013, we might actually see that change. But it won’t be because of Obama. It will be because a critical mass of senators — perhaps even including some Republicans — decide enough is enough: It’s time to rein in the filibuster.

The problem with a president promising to “change Washington” is that the presidency isn’t the part of Washington that’s broken. The systemic gridlock, dysfunction and polarization that so frustrate the country aren’t located in the executive branch. They’re centered in Congress. And one of their key enablers is Senate Rule XXII — better known as the filibuster.

Filibusters used to be relatively rare. There were more filibusters between 2009 and 2010 than there were in the 1950s, 1960s and 1970s combined. A strategy memo written after the 1964 election by Mike Manatos, Lyndon B. Johnson’s Senate liaison, calculated that in the new Senate, Medicare would pass with 55 votes — the filibuster didn’t even figure into the administration’s planning.

There were more filibusters between in the 111th Congress (2009-2010) than in the '50s, '60s, and '70s combined. (Data: Congress.gov, Graph: Ezra Klein)

Today, the filibuster isn’t used to defend minority rights or ensure debate. Rather, the filibuster is simply a rule that the minority party uses to require a 60-vote supermajority to get anything done in the Senate. That’s not how it was meant to be.

And it’s not how it has to be. The Constitution states that each chamber of Congress “may determine the rules of its proceedings.” And this week’s election has provided fresh evidence that the Senate, at least, may be preparing to remake its most pernicious rule.

Chris Murphy, the incoming Democratic senator from Connecticut, couldn’t have been clearer: “The filibuster is in dire need of reform,” he told Talking Points Memo. “Whether or not it needs to go away, we need to reform the way the filibuster is used, so it is not used in the order of everyday policy, but is only used in exceptional circumstances.”

Angus King, the independent senator-elect from Maine, said, “My principal issue is the functioning of the Senate.” He backs a proposal advanced by the reform group No Labels that would end the filibuster on motions to debate, restricting filibusters to votes on actual legislation. The group also wants to require filibustering senators to physically hold the Senate floor and talk, rather than simply instigate a filibuster from the comfort of their offices.

And it’s not just the new guys. In an election-night interview on MSNBC, Senator Dick Durbin of Illinois, the Democrats’ second-in-command, emphasized the importance of filibuster reform. Senate Majority Leader Harry Reid is a committed guardian of institutional prerogatives who put the kibosh on filibuster reform in the previous Congress. But even he has given up protecting the practice. “We can’t go on like this any more,” he told MSNBC’s Ed Schultz. “I don’t want to get rid of the filibuster, but I have to tell you, I want to change the rules and make the filibuster meaningful.”

That doesn’t go nearly far enough. The problem with the filibuster isn’t that senators don’t have to stand and talk, or that they can filibuster the motion to debate as well as the vote itself. It’s that the Senate has become, with no discussion or debate, an effective 60-vote institution. If you don’t change that, you haven’t solved the problem.

Defenses of the filibuster tend to invoke minority rights or the Constitution’s preference for decentralized power. It’s true the Founding Fathers wanted to make legislating hard. That’s why they divided power among three branches. It’s why senators used to be directly appointed by state legislatures. It’s why the House, the Senate and the president have staggered elections, so it usually takes a big win in two or more consecutive elections for a party to secure control of all three branches.

But the Founders didn’t want it to be this hard. They considered requiring a supermajority to pass legislation and rejected the idea. “Its real operation,” Alexander Hamilton wrote of such a requirement, “is to embarrass the administration, to destroy the energy of government and to substitute the pleasure, caprice or artifices of an insignificant, turbulent or corrupt junta, to the regular deliberations and decisions of a respectable majority.” Sound familiar?

The Founders also opposed political parties — though they went on to start a couple —  and couldn’t have foreseen how highly disciplined parties would subvert the political system they designed. Instead of the branches competing against one another, as they envisioned, we now have two parties competing uniformly across all branches.

Party polarization has turned the filibuster into a noxious obstacle. Filibusters are no longer used to allow minorities to be heard. They’re used to make the majority fail. In the process, they undermine democratic accountability, because voters are left to judge the rule of a majority party based on the undesirable outcomes created by a filibustering minority.

Ideally, a bipartisan majority of senators would end the filibuster — either immediately or with a delayed trigger six years after a deal is struck — so neither party would know which is poised to benefit. But doing away with the filibuster in the next Congress has some appeal, too. Democrats control the Senate and Republicans control the House; there will be no instant power grab leading to one-party dominance.

Republicans might want to think about getting on the train. Though they’ve mucked up opportunities to take over the Senate in 2010 and 2012, they have another opportunity in 2014, when Democrats will have 20 seats up for reelection and Republicans will be defending only 13. If the filibuster ends now, there’s a real chance that the first party to benefit from a reformed Washington would be the Republicans. That should be a change they can believe in.

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Ezra Klein · November 9, 2012