By Ronald Weich
8:00 AM EDT, March 10, 2013
The filibuster is back in the news, thanks to Sen. Rand Paul's nearly 13-hour talkathon on U.S. drone policy last week. Putting aside the merits of Mr. Paul's national security views, his feat of endurance was in the best tradition of the Senate. He used his right to unlimited debate on the Senate floor to draw the attention of his fellow citizens to an issue of profound national importance.
Other recent filibusters are less noble. Last month, senators used the rules to delay, for little apparent reason, confirmation of their former colleague Chuck Hagel to be secretary of defense. And more recently, the Senate minority blocked indefinitely the nomination of a highly qualified woman, Caitlin Halligan, to the D.C. Court of Appeals, the second most important court in the country and one to which the Senate has yet to confirm an Obama nominee.
The fact is, some filibusters are good and some are abusive. The rules should be reformed, but reformers should be careful not to go too far. Happily, the Senate earlier this year passed two resolutions by broad, bipartisan margins that will speed work on widely supported legislation and nominations without gagging the likes of Senator Paul or others inspired by Jimmy Stewart in "Mr. Smith Goes to Washington."
Short-sighted commentators complain that these reforms are inadequate. Some of these critics are either forgetful or hypocritical, because they took the opposite side of the argument in 2005, when Senate Republicans threatened to employ the "nuclear option" to circumvent the filibuster and jerry-rig confirmation of President George W. Bush's judicial nominees.
In order to evaluate whether the new Senate resolutions are up to the task, we need to understand what the task was. Those who believe the Senate should always be run by majority vote are naturally disappointed by the new rules, because this fundamental characteristic of the Senate did not change. But pure majority rule is not the goal to which Majority Leader Harry Reid aspired. As Mr. Reid said, "I'm not personally, at this stage, ready to get rid of the 60-vote threshold."
The filibuster has deep roots in the Senate and in American political culture. As Robert Caro detailed in his towering work "Master of the Senate," the upper chamber has long differed from the House of Representatives in recognizing the privilege of extended debate. The early Senate consciously excised from its rules a mechanism to curtail debate. Later, the body adopted a process of "cloture" by which a supermajority of members can limit debate. The threshold for cloture used to be higher but is now three-fifths of the 100-member body. Absent abuse, this 60-vote threshold should not be a daunting obstacle for all but the most divisive subjects.
The practical effect of the cloture threshold is to require a larger, typically bipartisan group of senators to agree that a bill or nomination should move forward in the legislative process. The filibuster therefore protects the rights of the Senate minority and the citizens they represent. When functioning properly, it encourages moderation and rewards consensus, values that our polarized political system badly needs.
To be sure, filibusters have sometimes been deployed for despicable reasons, such as the campaign by Southern Democrats to kill civil rights legislation in the 1950s and early 1960s. But when used responsibly, the filibuster is consistent with other features of the federal government, such as bicameralism and the presidential veto power, mechanisms to cool momentary passions and ensure careful review before the national government acts.
Some object to the filibuster because it appears anti-democratic: Why shouldn't a simple majority always prevail? But that sentiment ignores the deliberately anti-democratic nature of the Senate, in which each state — from sparsely populated Wyoming to population-rich California — is represented by two senators. As a mathematical matter, 51 senators constitute a majority of the 100-member body. But if those 51 senators hail from less-populous states, they may represent a minority of Americans, while the 41 senators who use a filibuster to block action may be speaking for a majority.
What Mr. Reid set out to reform was filibuster abuse — the distressing willingness of some senators to throw sand in the Senate's gears because they can. Today, individual senators routinely "hold" noncontroversial bills and nominees to obtain leverage in unrelated battles, or just to be contrary. Senate leaders can eventually overcome such lone-wolf tactics through the cloture process, but at too great a cost of time and legislative energy.
Filibuster abuse has also increasingly prevented Senate leaders from appointing negotiators to reconcile differences between bills passed by the Senate and House. Such negotiations are supposed to take place in public "conference committees," but each of the three motions required to send a bill to conference can be filibustered. As a result, conferences have become increasingly rare, and negotiators have retreated to the back rooms of the Capitol.
The recently adopted resolutions are well-designed to combat these types of routine obstructionism. First, they give the majority leader new tools to move more quickly through the cloture process, especially when he or she is working in tandem with the minority leader. Second, they limit post-cloture debate on sub-Cabinet nominations and eliminate it with respect to federal District Court nominations. This will enable the majority leader to file cloture on nominations without losing days of Senate floor time to phantom opponents. Third, the Senate has now streamlined the process by which it can agree to negotiate with the House over major bills.
There is more that could be done. For example, the confirmation reforms do not apply to nominees for federal appellate courts, such as Ms. Halligan. Also, some of the reforms will sunset at the end of the current Congress. But these are meaningful improvements, all the more valuable and likely to be long-lasting because they are the product of good-faith negotiations between the leaders and among senior senators of both parties.
Some had urged Senator Reid to use the raw power of his majority to dictate rules changes rather than following the long-standing requirement that at least two-thirds of the body (67 senators) vote to modify a standing rule of the Senate. This would have been no different from then-Majority Leader Bill Frist's 2005 plan to have then-Vice President Dick Cheney assert his constitutional prerogative as Senate president to ratify a radical new rule, supported only by a slim majority, to prohibit extended debate on nominations to the Supreme Court and other appellate courts.
As Senator Reid's chief counsel at the time, I worked with a wide array of advocacy groups to make a principled case against Mr. Frist's "nuclear option." We insisted that the Senate's rules could not be changed by any means other than a vote by two-thirds of the Senate. We argued that the requirement of a supermajority to cut off debate was intrinsic to the Senate and served valuable civic purposes. We persuaded editorial writers across the country to condemn the GOP power grab. In the face of public opposition, the nuclear option fizzled as a bipartisan "gang" of 14 senators, seven from each party, reached an agreement to block it.
Some of the same advocates who stood with Mr. Reid in defense of the filibuster now blog in support of its demise. And editorial writers who earlier warned against the nuclear option now encourage Senate Democrats to detonate it. In law school, we teach students to distinguish precedents. In Washington, inconvenient precedents are conveniently ignored.
Then as now, the nuclear option is not only illegitimate, it is also unwise. Just as Senate Democrats threatened to shut down the Senate in 2005 if Mr. Frist changed the rules unilaterally, so did Senate Republicans this time around. And while it is often glibly asserted that Senate dysfunction couldn't get worse, the truth is, it could. An enormous amount of routine business still occurs by "unanimous consent," and the withholding of consent could leave the body in an even more paralytic state. As a time when bipartisan cooperation is needed to tackle complex issues like immigration, tax reform and climate change, the last thing we need is a new pretext for foot-dragging.
A remarkable accident of timing validates Senator Reid's decision to have struck the bargain he did when he did. Only one day after the Senate passed the Reid-McConnell resolutions, a federal appeals court invalidated President Barack Obama's use of the recess appointment authority to circumvent Senate inaction on nominations. If that ruling stands, the executive branch has lost a huge amount of leverage in its struggle with the Senate over confirmations. But just the day before, the Senate voted to deprive its own members of a big chunk of their leverage in that struggle.
Would Senator Republicans have voted for the new reforms if they had known of the windfall they would receive in the next day's court ruling? We will never know.
Under considerable pressure from his erstwhile allies, Senator Reid stayed true to his understanding of the institution while winning important tools to keep the creaky machinery of the Senate in more or less working order. The Senate was not built to be a model of efficiency, and it never will be. But it could be worse — and but for an accident of timing, it almost was.
Ronald Weich is dean of the University of Baltimore School of Law. He can be contacted at firstname.lastname@example.org.
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