Many of my Democratic colleagues were incredulous, thinking that we Democrats could use the filibuster to stop the Republican agenda in the Senate.
I addressed the issue on the Senate floor and warned of an arms-race scenario. If Democrats use the filibuster 20 times during a session, I said, then when roles were reversed Republicans would use it 30 times, and so on.
During my 30 years in the Senate, majority control changed five times. The number of filibusters increased each time, as I had warned.
So what does this history mean for the current situation in the Senate? If you believe that the minority should absolutely have the right to stop a bill or measure from being debated and voted on, then there is little more to say, except please don’t call this democracy. It is, quite simply, minority rule. But if you believe that the majority party has the right to advance an agenda with guarantees that the minority will be able to debate and offer amendments, and have them voted on, then there is a path forward.
The proposal I put forth 26 years ago was this: After getting the signatures needed to file cloture on a measure, 60 votes would be needed to invoke cloture and bring the measure to a vote, the same hurdle that must be cleared today. But if the 60 votes were not obtained, then a new cloture petition on the same measure could be filed, and after a certain number of days the second cloture vote would require 57 votes to bring the debate to a close.
If 57 votes are not obtained, then another cloture petition could be filed and this time 54 votes would be required to end debate. If 54 votes were not obtained, then another cloture petition could be filed and this time 51 votes would be enough to end debate.
Does the fact that 51 votes would finally move a bill or amendment mean that the filibuster is being done away with? Quite the opposite. This process would actually enhance the filibuster as a means of slowing down proposed legislation and forcing the majority and minority to negotiate and reach a compromise. Why? Because for the Senate majority leader, the most important thing is time — time to get committee bills to the floor and passed, time to debate and pass appropriations bills, time to bring a fellow senator’s bill to the floor for passage.
If the majority leader is from the same party as the president, the majority leader needs time to try to enact the president’s agenda.
For the Senate minority leader, the most important things are to protect minority members’ right to offer amendments; to have them debated and voted on; and to stop the filling of the “amendment tree” by the majority leader, which prevents senators from offering amendments. More broadly, the minority leader proposes on behalf of his or her party a different agenda for the nation.
During my 40 years in Congress, I chaired two major committees in the Senate but also spent much of my time as the ranking minority member. I found that compromise is the result of negotiations, and negotiations happen when there is a mutuality of interests — not an absolute “yes” or “no” but a more nuanced “maybe.”
This mutuality of interests between the majority and minority leaders would lead to negotiations. Members of the minority party would put pressure on the minority leader to compromise so amendments could be offered by a minority senator, who, with support from a few majority-party senators, could win acceptance of an important amendment.
This kind of legislative victory would be duly noted in future campaigns by both the minority senator and the majority co-sponsors.
Again, for the majority leader, time is of the essence. I estimate that reaching 51 votes under this plan would take close to three or four weeks. If the majority leader is unwilling to negotiate and compromise on amendments, only one bill per month would reach the Senate floor. That would be unacceptable to any majority leader.
If the minority leader is unwilling to negotiate and compromise, the minority loses rights to have effective input through the amendment process.
The Senate was uniquely devised as a place for comity, deliberation and compromise. Over the years, it has lost its foundation. This proposal for filibuster reform would move it in the right direction to reclaim those principles.