There’s no dispute that the Senate isn’t working properly, but I disagree with the simplistic, partisan argument that the problem is Republican obstructionism and abuse of the filibuster.
The classic understanding of a filibuster comes from Jimmy Stewart in “Mr. Smith Goes to Washington” singlehandedly holding the Senate floor around the clock. Today, when Senate Democrats complain about Republicans launching record filibusters, they mean the unprecedented number of times the current majority leader has filed cloture to force an end to debate and amendments. The majority leader controls whether and how often this tactic is used.
The claim that Republicans force his hand with dilatory debate and amendments is disproved by data from the Congressional Research Service that shows the majority leader has filed cloture on the same day a bill was taken up more than 220 times, far more than any predecessor has. Republicans can’t be said to engage in excessive debate when debate is ended before it has even begun. The majority leader also uses a tactic with blocker amendments to prevent other senators from offering amendments. Using this while filing cloture forces a final vote before a single amendment has been even considered. Abuse of this tactic is at the heart of the Senate’s current gridlock.
In many cases, the majority leader simply informs Republicans in advance of moving to proceed to a bill that he will file cloture and block all amendments. Why on earth would Republicans vote to allow the Senate to take up a bill on which we are told we will be allowed no input? Instead of changing the cloture rule, a more productive reform might be to do away with the tradition, ironically contrary to existing Senate rules, that allows the majority leader to cut in line and offer blocker amendments.
What’s more, from my experience as a former committee chairman and as a current ranking member, I know some of the best examples of bipartisanship happen at the committee level, where consensus proposals are developed. But all that bipartisan work is for naught if those bills never see the light of day. Democratic leaders have also taken to writing bills behind closed doors, using Senate Rule XIV to bring them directly to the Senate floor, shutting out Republicans from the legislative process at every stage.
When the majority leader says the Senate is not operating efficiently, he means it is not approving the legislation he wants on the timetable he demands. The fact is, the Senate is not designed for that kind of efficiency. The rules of the House allow for quick consideration of legislation, but the Senate is supposed to be different. For a period after the 2008 elections, there were 60 Democratic senators, so the Senate could be run like the House, where the majority party reigns supreme and bipartisanship is unnecessary. After the 2010 elections, strictly partisan legislation could no longer pass Congress, but the heavy-handed tactics continued.
The Senate is designed to proceed at a measured pace, guaranteeing that the rights of the minority party are protected from what Alexis de Tocqueville called the “tyranny of the majority.” The father of the Constitution, James Madison, wrote in the Federalist No. 10, “Measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority.” James Madison explains in Federalist Nos. 62 and 63 that, along with other features of our Constitution, the Senate was constructed to prevent temporary majorities trampling on the rights of the minority. Contrast that with the majority leader’s vision for an altered Senate where the majority party could steamroll the minority.
The proposed transformation of the Senate threatens to replace the principle of the rights of the minority, so important to Madison, with a new principle that the might of the majority makes right. I urge senators to heed Madison’s warning in Federalist No. 63 about temporary majorities in the heat of passion enacting “measures which they themselves will afterwards be the most ready to lament and condemn.”
Sen. Charles E. Grassley, R-Iowa, is a former chairman of the Senate Finance Committee and currently serves as ranking member of the Senate Judiciary Committee. This commentary is adapted from a Dec. 5 floor speech he delivered.
Former Sen. Scott Brown, R-Mass., candidate for U.S. Senate in New Hampshire, holds his hand over his heart during the singing of the national anthem as he waits to take the stage for his town hall campaign rally with Sen. John McCain at the Pinkerton Academy in Derry, N.H., on Monday, Aug. 18, 2014.