Today the U.S. Senate will likely go nuclear on Supreme Court nominations. I’m not going to point out the hypocrisy of Mitch McConnell, because there is plenty of that to go around on both sides of the aisle in what is now a decades long deterioration of appointing and confirming Supreme Court nominees. I’m also not going to engage in a tit for tat over Republican refusal to even schedule hearings for Merrick Garland, again because the roots of obstruction on court nominees has a very long history and both sides have exhibited despicable behavior. What I do want to talk about, however, is what it is about the Senate that has changed to enable and even encourage this behavior.
Brief history of cloture and the filibuster
The concept of the Senate as the more deliberative body goes back to the founding of the Union, but much of the formal structure around the filibuster came to be in the last 100 years.
- After several unsuccessful efforts since 1900, the Senate adopted a cloture rule in 1917 that required a two-thirds majority of senators voting to stop debate on a bill.
- In 1949, the cloture rules were revised to require two-thirds of all sworn senators instead of just those present to vote. This rule switched back to senators voting in 1959.
- In the early 1970s, new rules allowed the Senate to move on to other business when a filibuster could not be broken with a cloture vote.
- In 1975, the rule changed from two-thirds to three-fifths making it easier to pass cloture votes. It also returned to all sworn senators and established the 60-vote threshold still required today.
- Also in 1975, the Senate removed the requirement that senators must hold the floor, creating the silent filibuster.
Unfortunately since this time the Senate has moved to dismantle the filibuster instead of reforming it. Majority Leader Bill Frist first proposed removing the filibuster on judicial nominees during the George W. Bush administration. At that time, Trent Lott gave this proposal the name we know it as today, the nuclear option. While averted at that time, Democrats in the majority finally did pull the trigger on all appointments except the Supreme Court during the Obama administration. That brings us to today when it is likely Republicans will finally do it for the Supreme Court. This now allows extreme and partisan nominees to be approved with a simple majority and encourages such behavior. The slippery slope is if this is done for standard legislation, effectively making the Senate no more deliberative than the House.
The unintended consequences
The actions taken over the last century have sought to eliminate obstruction and allow the Senate to do its business. While that seems all well and good, it has progressed to a point where the Senate’s role as a deliberative body is now in peril. Interestingly it has also encouraged behaviors resulting in historic levels of dysfunction and little accountability for individual members.
No more talking filibusters
Today you would be hard pressed to know which senators support a filibuster. It takes one senator that objects to a motion and that triggers a cloture vote. If that vote fails to get support from 60 senators, then nothing more has to occur. The nomination or bill is often tabled or negotiations are conducted in back rooms. When Senator Strom Thurmond held the floor for 24 hours and 18 minutes to protest the Civil Rights Act of 1957, he was held accountable for his obstruction. Southern Democrats held the floor for 75 hours in protest of the 1964 Civil Rights Act, including 14 hours and 13 minutes by Senator Robert Byrd. The majority of Americans supported these bills and the senators were forced to stand on the Senate floor and make their case. Today a senator can hide in the background and doesn’t have to explain why they object to legislation.
Losses should hurt more than they do today
If 55 senators support legislation that the American people hate, they should not simply be allowed to cut their losses when a minority filibusters. The rules today make it too easy to move on to something else and get away from the bad headlines exposing what they are trying to do. While there may be some pieces of legislation where urgency demands the ability to take it up, this should be the exception and not the rule. If a minority has a strong position, the majority should be held to account for the flaws and problems in their legislation. Not being allowed to end debate over a loser bill due to what the majority put into it or omitted encourages negotiation and compromise to come to a resolution. We definitely need more of that in the U.S. Congress.
A framework for a solution
In today’s 24/7 coverage of politics, a return to the talking filibuster would be an effective structure for changing the behavior of the U.S. Congress. If senators want to avoid the negative exposure and perception of obstruction associated with a filibuster, they may be more eager to pass bills out of committee with bipartisan support that represent a compromise between the majority and minority. When an impasse is reached on a bill and a filibuster commences, the American people will experience the debate first hand through cable TV and social media. This allows “We the People” to get involved with phone calls, emails and Tweets to our elected officials. We are now part of that debate and can weigh in, potentially moving key Senators away from hard lined positions so a majority can get to yes.
In December of 2012, Senator Jeff Merkley (D-OR) sent a memo to his colleagues proposing a return to the talking filibuster. Merkley’s proposal is extremely detailed so I will simply encourage clicking the link and reading the press release and full memo on the Senator’s web site. Merkley addresses the issues I mentioned above in addition to numerous other reasons to preserve the filibuster and the 60 vote cloture requirement.
Today is a sad day for democracy and the voice of the minority in America. I hope that all 100 members of the Senate fully grasp the impact of what is happening and begin a serious dialogue to restore the deliberative nature of the U.S. Senate. Our democracy endures because we have respected the minority and taken steps to discourage the tyranny of the majority. This discussion can and should begin with Senator Merkley’s proposal.