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The End of the Senate Filibuster?
Reid’s rules, if passed, would usher in a new tyranny of the majority.


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Hans A. von Spakovsky

As members of Congress fight with the president and each other over the budget impasse, another battle looms. Senate Majority Leader Harry Reid has said he may try — on the very first day of the new Congress — to change the Senate’s rules regarding the filibuster.

Reid wants to severely limit the minority’s ability to filibuster, and his plan for doing so would itself violate the Senate’s rules on rule changes. If successful, he would destroy a critical element of legislative procedure, one designed to prevent the “tyranny of the majority” that the Founders feared above all else.

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The Senate’s long tradition of extended debate and an open amendment process is enshrined in Senate Rule 22. It comports with the Founders’ intent that the Senate be a more deliberative body than the inherently raucous House of Representatives. Thomas Jefferson and James Madison saw the Senate as the “great anchor” of the government that would calm the passions of the House. Similarly, George Washington told Jefferson that the Senate was intended to “cool” House legislation in the same way that a saucer was used to cool hot tea.

Rule 22 guarantees every senator, no matter how small the state he or she may represent, the ability to debate the crucial issues raised in legislative proposals. The ability to discuss and to amend bills provides the process needed to reach consensus and eventually pass legislation that both parties support. Such bipartisan support is also crucial to ending public debate on an issue. If members lose these abilities, the majority party will have the unchecked capability to shut off debate and pass legislation without opposition; undoubtedly, this would increase the partisan divide that already exists in Washington and would undermine the soundness of laws that emerge from Congress.

A great example of the importance of extended debate and the open amendment process is the Panama Canal Treaty of 1977. Opposition was strong. The debate lasted ten weeks; during this span, many amendments were proposed and voted on. Ultimately, the ability to fully air concerns and to offer amendments overcame the opposition, and the amended treaty was passed. Today, some still think the pact was not in the best national-security interests of the U.S., but it ceased to be a matter of public concern because it had garnered bipartisan acceptance. But that acceptance arose only after members of the opposition were able to debate and amend extensively. Harry Reid’s plan might destroy that ability.

Liberals are frustrated that the Senate has passed so little legislation. But little has passed because the minority is even more frustrated by the current majority’s reliance on a tactic known as “filling the tree” to virtually shut down the ability of minority members to amend legislation.

Senate rules limit the number of amendments that legislators can offer. Because the majority leader is recognized on the floor before anyone else, Senator Reid has abused that rule on numerous occasions by immediately proposing the maximum number of nonsubstantive amendments, leaving no room for amendments from the opposition. He then files a cloture motion to end debate before debate has started — even when no member of the minority party intends to filibuster the legislation. He uses these cloture motions to create the imaginary storyline (often repeated uncritically by many in the media) that Republicans are “filibustering” all of his legislation.

Prior majority leaders, Republican and Democratic alike, ”filled the tree” very sparingly. Senator Reid has used this amendment-blocking maneuver more times than the previous seven majority leaders combined. The filibuster is one of the few ways for minority members to protest this unscrupulous behavior. The only way to end debate in the Senate, according to Rule 22, is by way of a three-fifths vote.

Senator Reid wants to change that rule, and he’s willing to break another rule to do it. He has announced that on the first day of the new session, he will propose a change in filibuster rules and that it will take only a simple majority of 51 votes to shut down debate on the proposal.

That procedure would flout Senate Rule 5, which states that Senate rules continue from one Congress to the next. (Unlike the House, whose members run for election every two years, the Senate has always considered itself a continuing body, because only a third of its members are up for election at any one time.)

Reid has not released details of how he would limit the filibuster. He might eliminate entirely the ability to filibuster a motion to proceed (the motion that starts a bill’s consideration on the floor). Another possibility would be to require that filibusters be actual “talking” filibusters, which would make them much harder to sustain.

Under longstanding Senate rules, it takes a two-thirds vote to shut down debate on rule changes, whether it is on the first day of the Senate session or any day thereafter. Yet Senator Reid now claims he can ignore his body’s parliamentary history, traditions, and specific rules. That is not what he said on April 21, 2005, when he argued, “For people to suggest that you can break the rules to change the rules is un-American.” Of course, then, it was a Republican majority toying with the idea of limiting the ability of Minority Leader Reid to filibuster.

If Senator Reid proceeds with this “un-American” maneuver, it will show contempt for compromise and for a system of parliamentary rules that has served the nation well over much of its history. It will show that he believes might makes right and that the majority should trample over the minority whenever it has the power to do so. It will lead to more partisanship in the Senate and an even more divided country — all at a time when our nation desperately needs to come together to address its daunting fiscal problems.

— Hans A. von Spakovsky is a senior legal fellow at the Heritage Foundation. 



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