Don't Blame the Filibuster
Pleas for Congressional "bi-partisanship" flood the media marketplace. Esteemed columnists and think tank analysts call for more bi-partisan agreement on major issues.
Many of these fervent calls identify the need for 60 votes to pass most major bills in the Senate as emblematic of the parliamentary gimmicks that have clogged Congress’ legislative agenda.
Yet, a review of the history of extended debate (the "filibuster" in common parlance) and efforts to contain such debate indicate that the Senate has gradually tightened its restrictions on filibuster. This history stands despite the greatly expanded use of the filibuster as a routine parliamentary maneuver in the Senate.
When the Senate first convened, no restrictions on extended debate existed. “Cloture,” the formal name for ending a filibuster, was part of a Senate rules change in the early 20th Century. The Senate rules at the time required two-thirds of Senators “present and voting” to vote to cut off debate on an issue. If all Senators voted, it would take 67 aye votes to stop a filibuster.
In the 1970s, the Senate again tightened its rules against the filibuster. The two-thirds requirement was dropped. In its place the Senate voted that it would take 60 aye votes of Senators “chosen and sworn” to cut off debate. As a sweetener, the Senate agreed to allow 30 hours of “post-cloture” debate to those engaged in the filibuster.
Should the Senate act once again to make extended debate more difficult? If so, what reforms might really work to accomplish what the reformers seem to want — more legislation passed more quickly, less antagonism among Senators and between the two parties. And is the cloture 60-vote requirement the problem?
Both reform impulses seem to run counter to the notion of the Senate as the saucer that cools the spilt milk. In the House of Representatives, the Rules Committee issues the terms and conditions of debate on issues that are to come to the House floor. That Committee almost always is chosen from among those Members who are most reliably supporters of their party’s leadership. Thus, free and open debate, without restriction, has become extremely rare in the House. In short, if you have a majority, you can do what you wish. That’s how the hot milk found itself in the saucer.
Thomas Jefferson warned more than 200 years ago, “Great innovations should not be forced on a slender majority.” If that notion still rings true, and I believe it does, then the 60-vote requirement to pass major legislation in the Senate makes eminent sense.
In a further contrarian mode, I believe it is not parliamentary procedure, including the 60-vote requirement, that has clogged the legislative arteries. Indeed, it is the power of the caucuses of both parties in the Senate that causes an excess of “bad legislative chloresterol.” The demands of the caucus, playing as they do on the age-old almost tribal question of “are you with us or them, “ constrain bi-partisanship much more than Senate rules.
The Senate cannot keep a Senator from entering the Chamber and voting. But, party caucuses can, and have, ostracized their maverick members from the important Tuesday policy luncheons within which legislative strategy often solidifies. While some leeway is accorded members who may face difficult re-election races, that leeway is not absolute. On some issues, the caucuses simply demand that its members vote “with the leadership” despite any electoral pain it might cause a Member -- and, notwithstanding any legitimate policy objections a Member might have.
Thus, Senate Majority Leader Harry Reid found his most intractable problems during the healthcare reform debate within his own party caucus, not with the 40 Republican Members of the Senate. Those who “erred” from the party line have been given many labels, many of them not fit for a family publication, both publicly and privately. To most outside observers, it seemed inconceivable that the 60 Democrats couldn’t pass fairly easily the healthcare reform bill. To insiders, those who have worked on Senate staff and have had to field the thousands of emails, letters, phone calls, and visits by angry constituents, such a dilemma seemed inevitable. Cloture had nothing to do with the problem — demands for absolute party line behavior caused it.
I know of no solution to that strong and primal appeal to “loyalty” to the group, to the “us or them” instinct.
To get back to the cloture, 60-vote question, one signal bill in 2005 shows how to get bi-partisanship AND avoid cloture. In 2005 the House and Senate passed major energy bills. In large part passage came in the Senate because of the personal courage of then-Minority Member Sen. Jeff Bingaman and then-Chairman Sen. Pete Domenici. They started with a talk between the two of them. They then went back to their Energy Committee colleagues and persuaded a bi-partisan majority. They then briefed their leadership on the proposed document. The left in the Democratic Party and the right in the Republican Party had strong objections. But, Domenici and Bingaman, by starting apart from party platforms or caucus demands, and working outward were able to pass a major bill. They achieved the same result with the Energy Policy Act of 2007, this time with Bingaman as Chairman and Domenici as Ranking Minority Member.
All this came after a painful Senate spectacle in 2003, when, as Domenici admitted later, Republicans consciously barred true Democratic participation and tried to pass a Republican only energy bill. Not incidentally, the 2003 effort could not get 60 votes and failed.
As we used to say in high school geometry, quod erat demonstrandum. Restrict cloture further and undermine the Senate’s role as a calming legislative force. Reduce the power of the caucuses and get more bi-partisan, broadly-supported policy. Or, in the jargon of the day, bottom-up legislation has a much better chance than top-down.