In the opening days of the 113th Congress, the Senate will consider rules changes relating to the filibuster. It’s important that any changes balance the Senate’s need to conduct its business with protecting the rights of the minority party to participate effectively in the legislative process. The Senate is the world’s greatest deliberative body, and it’s important to provide ample opportunity for deliberation. At the same time, deliberate action should not be confused with no action at all.
Vigorous debate is the lifeblood of representative democracy, but over the past decade, extreme partisanship on both sides of the aisle has led to gridlock. Each side has used the rules of debate to stop the legislative process dead in its tracks. Prolonged stalemates have been the result. The American people expect and deserve better.
Senate rules have confounded citizens, presidents, and its own members for generations. Consider Woodrow Wilson’s words in 1917, when he complained of how a “little group of willful men, representing no opinion but their own” made it exceedingly difficult to advance his agenda in the Senate. That led the chamber to adopt a new rule that year, ending debate upon the vote of a supermajority of senators.
But things are different now. Fast-forward nearly a century, where the Senate has faced nearly 400 filibusters in the past six years. During Lyndon B. Johnson’s six years as majority leader, he only had to deal with one filibuster. In the past six years there have been more filibusters than in the 70 years since World War I.
To be clear, these “filibusters” are not inspiring colloquies, nor the principled talk-a-thons of “Mr. Smith Goes to Washington.” Members of the Senate are not courageously holding the floor, standing proudly as the last bulwark against a tyrannical majority. They are not sleeping on cots and reading the phone book in a valiant effort to postpone a vote on major constitutional issues or questions of conscience.
Instead, senators merely send an email indicating that they are engaging in a filibuster — a process that is as silent as the click of a mouse. This is sufficient to subject any Senate action — from opening a debate to ending the debate to going to conference with the House — to a new 60-vote threshold. Worse, some senators bypass this method entirely and merely send an anonymous word to leadership that they intend to place a “hold” on a bill, and thereby filibuster by mere threat. The Senate then moves on to other business, and the cycle continues, diminishing the Senate’s rightful place of relevance on issues critical to our future.
The arms race of obstruction has increased as the majority strategically prevents the minority from offering amendments to legislation thereby ending the minority’s important participation in crafting policy. When the majority leader “fills the amendment tree,” members of the minority are unable to have a fair chance to offer amendments as part of a robust debate. This discourages bipartisanship and collaboration. It further incentivizes filibusters.
When considering rules changes, senators from each party will seek to design procedures that serve their partisan interests. We suggest that a better approach would be for the two parties to seek common ground by supporting proposals that serve the dual ends of enhancing the legislative process while protecting minority rights. Such an approach might include these ideas:
1. The practice of silent filibusters and anonymous holds should end because they demean the Senate’s tradition of open debate and deliberation. Those who want to block a bill should be required to hold the floor with a talking filibuster. Our elections are premised on accountability, and citizens deserve to know which senator is holding up the process and why that senator is doing so, even if it is within a senator’s right under the rules to speak at length about any particular piece of legislation.
2. The Senate should restore its role as a provider of advice and consent to the president by precluding the filibustering of judicial and executive branch nominees. Vacancies on the federal bench have resulted in scores of “judicial emergencies,” thereby delaying justice for thousands of Americans as nominees with broad bipartisan support languish on the floor. Other nominees are used as bargaining chips to extract concessions on unrelated legislation, even when nominees’ qualifications are not at issue. The prospect of being caught in the confirmation trap discourages well-qualified Americans from accepting offers to serve the public, because the personal costs are so high.
3. The minority must be entitled to a fair opportunity to offer amendments to legislation. “Filling the tree” should not deny senators their right to participate in the legislative process with their own priorities and voice
It’s plain that the present state of affairs is untenable to the American people, and confounding to many of us who served in the chamber for so many years. Let us turn away from the brinkmanship of abused legislative procedures and return with vigor to spirited debates over policy and substance. Let the Senate be the Senate again.
Former Sen. John C. Danforth, R-Mo., served from 1976 to 1995. Former Sen. David L. Boren, D-Okla., served from 1979 to 1994.
Rep. Elijah Cummings, D-Md., right, hugs Harold Schaitberger, General President of the International Association of Fire Fighters, after the Congressman spoke at the IAFF's Legislative Conference General Session at the Hyatt Regency on Capitol Hill, March 9, 2015. The day featured addresses by members of Congress and Vice President Joe Biden.