Brian Darling:
The United States Senate has a long and storied tradition of extended debate. Yet in a misguided effort to make it easier for the majority to shut down debate, leaders from both major political parties have flirted with eliminating the Senate filibuster. This would be unwise. Any rule that makes it easier for Senate leaders to end debate and block the amendment process will lead to less transparency, rushed debate, and a diminution of Senators’ rights to participate in the legislative process.
The filibuster is permitted by Rule 22 of the Senate Rules.[1] Traditionally, Senators have enjoyed the right to unlimited debate on legislation or a nomination unless the Senate votes to end debate. Rule 22 thus empowers ordinary Senators to make their voices heard and guarantees them the opportunity to offer amendments during Senate floor debates.
Yet early in 2011, some Senators—including Senators Jeff Merkley (D–OR), Tom Harkin (D–IA), and Tom Udall (D–NM)—are expected to propose changes to the filibuster rule that give the Senate Majority Leader unprecedented power and diminish the power of individual Senators.
However, chipping away at the filibuster rule will also further exclude the American people from the legislative process. As bills and nominations move hastily through the Senate, the American people will have less time to read and appreciate the implications of legislation, not to mention less time to communicate their views on controversial bills or nominees to their elected representatives. The filibuster serves to empower individual Members to participate in the process and for the American people to have their say.
This paper discusses how Senate Majority Leaders, especially Harry Reid (D–NV), have used filling the amendment tree to suffocate the heretofore sacrosanct Senate traditions of unfettered debate and a wide-open amendment process. This paper also reviews some of the filibuster reform ideas pending in the Senate and offers some recommendations.
What Is a Filibuster?
A filibuster is a debate by one or more Senators intended to slow consideration of a bill or nomination. The filibuster had “become popular in the 1850s” and was used in the early days of the House and Senate to prevent votes on bills.[2] Rule 22 of the Senate codified the Senate tradition of extended debate on controversial measures and nominations into the Senate’s official rules.
This tradition is important because it enables all Senators representing all 50 states to participate in every piece of legislation and nomination. If the Senate jettisons its tradition of extended debate, it will likely cease to be a deliberative body, and the majority party will have unfettered power to pass legislation and confirm nominees with little to no debate.
According to the Senate’s official history, Thomas Jefferson and James Madison saw the Senate as “the great ‘anchor’ of the government” that would cool the passions of the House of Representatives. “George Washington is said to have told Jefferson that the framers had created the Senate to ‘cool’ House legislation just as a saucer was used to cool hot tea.”[3]
Rule 22 helps to realize this intent by putting the question of ending debate to the whole Senate and requiring the agreement of three-fifths (60) of Senators to end debate. Rule 22 states in part:
“Is it the sense of the Senate that the debate shall be brought to a close?” And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn—except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting— then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of.[4]
When Rule 22 was adopted in 1917, the threshold to end debate was two-thirds, higher than today’s three-fifths (60 Senators) requirement. While nuances in the application of the filibuster rule make it difficult for the layman to understand, the rule protects the simple notion that the Senate can end debate on a measure or nomination only when 60 or more Senators agree.
Rule 19 recognizes Senators’ right to debate:
When a Senator desires to speak, he shall rise and address the Presiding Officer, and shall not proceed until he is recognized, and the Presiding Officer shall recognize the Senator who shall first address him. No Senator shall interrupt another Senator in debate without his consent, and to obtain such consent he shall first address the Presiding Officer, and no Senator shall speak more than twice upon any one question in debate on the same legislative day without leave of the Senate, which shall be determined without debate.[5]
This rule allows a Senator to request recognition by the chair of the Senate to engage in extended debate. To start the process of ending debate, 16 Senators present a motion to invoke cloture or end debate. A Congressional Research Service report summarized the cloture process:
Senate Rule XXII…known as the “cloture rule,” enables Senators to end a filibuster on any debatable matter the Senate is considering. Sixteen Senators initiate this process by presenting a motion to end the debate. The Senate does not vote on this cloture motion until the second day of session after the motion is made. Then, for most matters, it requires the votes of at least three-fifths of all Senators (normally 60 votes) to invoke cloture….
The primary effect of invoking cloture on a question is to impose a maximum of 30 additional hours for considering that question. This 30-hour period for consideration encompasses all time consumed by roll call votes, quorum calls, and other actions, as well as the time used for debate. During this 30-hour period, in general, no Senator may speak for more than one hour…. Under cloture, as well, the only amendments that Senators can offer are amendments that are germane and that were submitted in writing before the cloture vote took place.[6]
A change in this procedure could dramatically change the legislative and nomination processes. If the Senate completely abolishes the filibuster, the Senate would likely become a smaller version of the House, effectively surrendering its unique constitutional role of cooling the hot tea coming from the House of Representatives.
Origins of the Senate
The Senate is a distinctive institution of American politics and has developed a tradition of extended debate and a process of legislating that lends itself to numerous amendments. James Madison observed:
In order to judge of the form to be given to [the Senate], it will be proper to take a view of the ends to be served by it. These were first to protect the people against their rulers: secondly to protect the people against the transient impressions into which they themselves might be led.[7]
The Senate is an institution that requires the participation of all 50 states through their 100 elected Senators. Senators representing those states cannot significantly participate and protect against “transient impressions” if they are prohibited from offering amendments and participating in extended debate.
The U.S. Senate was created to be an institution far different from the House of Representatives. On July 16, 1787, the 55 Founding Fathers meeting in Philadelphia reached the “Great Compromise.”[8] The Senate was created to give all states equal representation in one chamber of the legislative branch. This compromise was important to the creation of the U.S. system of government and sets up a system that is central to the bicameral nature of the legislative branch.
The House and Senate were set up differently so that the people would be represented in the House and the states would be represented in the Senate. They also envisioned the House of Representatives and Senate serving two distinct purposes. The House was to be the voice of the people, with U.S. Representatives elected every two years, while the Senate would represent the interests of the states with U.S. Senators elected every six years. James Madison explained these purposes in the Federalist Papers:
The House of Representatives will derive its powers from the people of America; and the people will be represented in the same proportion, and on the same principle, as they are in the legislature of a particular State. So far the government is NATIONAL, not FEDERAL. The Senate, on the other hand, will derive its powers from the States, as political and coequal societies; and these will be represented on the principle of equality in the Senate, as they now are in the existing Congress.[9]
Not surprisingly, each chamber has developed its own unique rules and traditions over the years. The Senate is a unique legislative body and many criticize the arcane rules and procedures for slowing down the legislative process. Yet these procedures and rules are exactly what the Founders wanted.
In his 1833 treatise on the Constitution, Joseph Story, Supreme Court Justice and professor of law at Harvard Law School, argued that the Senate served an important purpose in representing the interests of the states:
No system could be more admirably contrived to ensure due deliberation and inquiry, and just results in all matters of legislation. No law or resolution can be passed without the concurrence, first of a majority of the people, and then of a majority of the states. The interest, and passions, and prejudices of a district are thus checked by the influence of a whole state; the like interests, and passions, and prejudices of a state, or of a majority of the states, are met and controlled by the voice of the people of the nation.[10]
Story believed that the Senate was to be the body that represented the interests of a majority of the states. Just as the House was to control the majority of the states, the Senate was to control the passions and prejudices of the House.
Story did not believe that the slow progress of legislation in the Senate was a bad outcome. He argued that “a good law had better occasionally fail, rather than bad laws be multiplied with a heedless and mischievous frequency. Even reforms, to be safe, must, in general, be slow.”[11] Story believed that the Senate “is well adopted to the exigencies of the nation; but that it is a most important and valuable part of the system, and the real balance-wheel, which adjusts, and regulates, its movements.”[12] He did not see the Senate as a smaller version of the House.
Justice Story noted the importance of setting Senate terms at six years as a “a real check, in order to guard the states from usurpations upon their authority, and the people from becoming the victims of violent paroxysms in legislation.”[13] Story believed that the Senate was a more stable institution than the House and that this benefited the country in dealings with foreign nations. Story concluded that there needed to be an “enlightened permanency in the policy of government,”[14] not merely a “sense of justice, and disposition to act right.”[15]
James Madison argued and Justice Story later concurred that the Senate served a unique purpose in the legislative construct embodied in the Constitution. Over the years, the filibuster in its many incarnations has developed into a procedure that protects the right of extended debate and “slow” consideration of proposed laws passed by the House. The writings of the Founders and Story affirm that the filibuster is consistent with the original intent and explicit text of the Constitution.
