Nuke the filibuster!

A majority of U.S. Senators wanted to include a public health care option in the Affordable Care Act.  Yet they couldn’t get it in.  A majority of U.S. Senators favored the Employee Free Choice Act which helps protect workers who want to organize labor unions from employer pressure and retaliation. Yet they couldn’t get it through.

Under Senate rules, it takes 60 votes, not 51, to allow a bill to be brought to a vote. Without the 60 votes, individual Senators have unlimited time to talk – “filibuster” –  and delay action.

Reform of the Senate is litmus-test issue.  It is an issue that overrides all other issues. Without Senate reform, no other meaningful change can take place.

While the use of the filibuster was once an emergency tactic used in unusual circumstances, it has now become routine means by which the minority party prevents the majority party from enacting its program.

It’s not just the filibuster.  The routine business of the Senate requires not just 60 votes, but unanimous consent, in order to proceed.  By threatening to withhold consent, an individual Senator can have any appointment put on “hold.”

Senate Majority Leader Harry Reid and President Obama accept this as normal.  They say that if the mean old Republican minority uses filibuster threats and “holds” to block their program, there’s nothing they can do about it except complain.

The problem is that the same rule which requires 60 votes to break a filibuster requires 67 votes to change the rule. Yet there is a solution.  It is what the Republicans first called the “nuclear option,” then the “constitutional option” when they were in the majority and the Democrats threatened to filibuster the Supreme Court appointments. Proponents of the “constitutional option” quote Section 1, Article 5, of the Constitution, which says “each House may determine the rules of its proceedings” and say that the Vice President, who presides over the Senate, may at the beginning of the new term propose a new rule to be voted up or down by the majority.

The Constitution specifies a two-thirds vote by the Senate only to ratify treaties, propose constitutional amendments, override presidential vetoes, expel members or impeach federal officials.  If the majority gives up its right on any other issue, it is because it chooses to do so.

Why don’t the Democrats get behind the “constitutional option”?  Why don’t they make an issue of the filibuster?  Why do they allow the minority to stymie their key programs?  One reason may be that they want the filibuster as a weapon in reserve when they are back in the minority.  Another is that there would have to be a reform of Senate procedures going beyond just the filibuster.  Otherwise the angry minority could put all of the Senate business on “hold.”

The United States has more checks and balances in its system of government than any other important democracy.  Under parliamentary systems, a Prime Minister is chosen by the majority party or a majority coalition in the legislature, and can normally expect to see his or her bills enacted into law.  When the legislature rejects an important bill, there normally is an election to choose a new Prime Minister.

Under the U.S. system, a bill must be passed by the House of Representatives, which is elected on a population basis for two-year terms, and then by the Senate, which is elected on a state sovereignty basis for staggered six-year terms, and then signed into law by the President, who may be of a different party, and then possibly be vetted by the Supreme Court.  We don’t need anything additional that is not in the Constitution.

Click on Fix the Senate Now for a filibuster reform web site. [Added 12/23/10]

Click on Senate Procedural Changes Needed to End Legislative Gridlock for the AFL-CIO argument against the filibuster.

Click on Decades Worth of Obstructionism for an article and chart confirming President Obama’s statement that there were more votes to break filibusters in 2009 than in all of the 1950s and 1960s combined.

Click on If Sessions wants to compare, we can compare for a report and chart on the increasing obstruction of judicial confirmations.

Click on  ‘The Intent of both proposals is to make the Senate more like the Senate’ for a discussion of two reform proposals.

Click on What Is a Hold? for a more complete explanation of how a “hold” works.

Click on So what’s up with “holds” in the Senate, anyway? for a more detailed explanation.

Click on Reid Floor Speech on Use of Filibuster for Senator Harry Reid’s speech in defense of the filibuster when the Democrats were in the minority.  He was wrong.  The Bush administration was entitled to an up or down vote on its judicial nominees, much as I would have liked to see them defeated. The Obama administration is entitled an up or down vote on its appointments and proposals, and so will be any future administration, Democratic or Republican.

The argument against the filibuster does not hinge on whether the Republicans have abused it more than the Democrats, although I believe they have.  It could easily happen that when the Democrats are next in the minority, they could be just as obstructive as the Republicans are now.  The question is whether in the Senate, a body in which Senators representing a minority of the population can outvote Senators representing the majority, a minority of that minority should have the power to block action. [Added 9/7/10]

Click on First Order of Business: Filibuster Reform for a proposal for limited filibuster reform.  It is unlikely to be enacted, in my opinion.  Since the Senate Democrats did not attempt to change the filibuster rules at the height of their power, an attempted change now would be seen as an act of desperation – which it in fact would be, although I would like to see them do it anyhow.  [Added 11/4/10]

Click on A Very Wonky Post About Senate Rules for an explanation of now 51 determined Senators could change the Senate rules any time they wanted to. [Added 12/17/10]

Tags: Constitution, Filibuster, Harry Reid, Obama, Republicans, Senate