Jeremy Cutcher is a political science senior and Mustang Daily liberal columnist.
The Senate procedural maneuver known as the filibuster has become bankrupt and broken. Like many earnest efforts, it has become an abused political tool used for party politics rather than as an institution vital to the well-being of the country.
With the 112th Congress beginning its session today, the Senate has the opportunity to establish new rules concerning the filibuster so it can be used as intended — not as a trump card that gives undue power to the minority.
Most Americans today take our democracy for granted. But at the time of the American Revolution, very few people outside the United States believed such a system of government could succeed on a national level (the only example of functioning democracies being the Greek city-states with a citizen population of a few thousand). Even if the political system functioned as a representative democracy, there was still the obvious threat of the “tyranny of the majority” in which the majority would rule as a de facto tyrant, disregarding minority interests and subjecting minority rights to violent transgressions to preserve majority power.
In order to avoid these problems, the Founding Fathers established a system of checks and balances to prevent one branch of government from gaining too much power. The Senate was especially designed to be impervious to the whims of the moment due to the longer terms for senators. Both houses of Congress originally had filibuster rules intended to make sure legislation was fully debated, but the House passed rules early on which allowed the majority party to control the rules of debate. The Senate went in the opposite direction, however, and in 1806 eliminated the rule stipulating that a simple majority could end debate and did not establish a new rule until 1917, developing the filibuster as a procedural maneuver to block or delay legislation since there was no manner to end a filibuster.
In 1917, after a small group of anti-war legislators halted action in the Senate regarding arming merchant ships against German submarines, the Senate established the cloture rule allowing a two-thirds supermajority to end debate and force a vote on the legislation. Nonetheless, the stringent supermajority proved too high a hurdle when Civil Rights legislation came to the forefront in the 1950s and was only able to pass in the mid-60s due to growing bipartisan support. After Watergate, a number of government reforms led to the Senate lowering the number needed to invoke cloture to three-fifths, or 60 senators.
The original intent was to allow Senators to draw attention to certain issues in legislation and make sure the legislation was debated fully. Many Americans are familiar with the filibuster from the film Mr. Smith Goes to Washington, where James Stewart’s character filibusters a corrupt piece of legislation, creating the image of the filibuster as a noble act against a tyrannical majority, which is often how politicians frame their desire to hold the Senate hostage (notice how Republican Senators framed the health-care bill as a government takeover that was jammed down our throats, when it is less radical than Nixon’s planned overhaul and took a full year of debate).
But the filibuster has become a misused and abused parliamentary tactic with politicians invoking the filibuster based not on some noble principle or on the good of the country but on what is politically expedient for them. Although the health-care bill was bipartisan with numerous Republican ideas, it was more advantageous politically for Republicans to oppose it because any benefits the legislation would generate for the country would invariably be credited to Obama and the Democratic majority. The filibuster has erased the threat of a tyrannical majority but has replaced it with an obstructionist minority and supplanting the threat of the tyranny of the majority with the actual tyranny of the minority is not a solution. Between 1917 and 1993, the average number of cloture motions to end filibusters per year was 19, but over the last four years, it has increased to 69 as politics has become more polarized.
What needs to be done to fix the filibuster?
The solution must change the incentives so the minority cannot just be an obstructionist party but rather must engage in actually generating a “better” bill. In football, coaches are given two challenges so the game does not come to a halt with coaches challenging every call they don’t like, whether or not they actually believe the referees got the call wrong. Although I do not think a limit can be placed upon the filibuster (the majority party will just debate bills so as to use up the minority party’s ability to object), changes must be sought to allow for some sort of trade-off when employing the filibuster.
The main proposal being discussed in the Senate right now centers on forcing senators to actually debate the bill while they are filibustering (presently the minority party just has to file an intent to filibuster and the Senate comes to a complete halt). While this will make senators accountable for their filibusters and serve the actual intent of debating the bill, some do not believe this change goes far enough.
Steven Smith, professor of social sciences and political science at Washington University, said he believes the Senate should take two additional steps: 1. “the Senate should amend its rules to limit debate to two hours on all but two types of motions — those to pass legislation and to approve a House amendment or conference report;” and 2. “the Senate should limit debate to 100 hours — about two weeks — on major legislative action.”
Both of these proposals would be aimed at “limiting the opportunities to filibuster to near-final action on legislation” in order to end obstructionist tactics used now on nearly every procedural vote, while preserving the minority’s ability to discuss at length their reservations concerning the proposed bill and engage in a productive discussion to address those issues. Until the Senate addresses the problems with the current use of the filibuster, it will remain an institution that favors obstructionism rather than productive debate to foster common understanding and compromise.