Remove the Filibuster from the Senate Rules

By David Swanson

Trying to squeeze any sort of peace on earth out of our government in Washington has been a steep uphill climb for years. For the most part we no longer have representatives in Congress, because of the corruption of money, the weakness of the media, and the strength of parties. There are not 535 opinions on Capitol Hill on truly important matters, but 2. Our supposed representatives work for their party leaders, not for us. Luckily, one of the two parties claims to want to work for us.

When the Democrats were in the minority and out of the White House, they told us they wanted to work for us but needed to be in the majority. So, in 2006, we put them there. Then they told us that they really wished they could work for us but they needed bigger majorities and the White House. So, in 2008/2009, we gave them those things, and deprived them of two key excuses for inaction. We took away the veto excuse and the filibuster excuse.

This is not to say that either excuse was ever sensible. The two most important things the 110th Congress refused to do (ceasing to fund illegal wars, and impeaching war criminals) did not require passing legislation, so filibusters and vetoes were not relevant — in fact, the Senate and the president were not relevant. But the Democrats in Congress, and the Republicans, and the media, and the White House all pretended that wars could only be ended by legislation, so the excuses for not passing legislation loomed large. The veto excuse disappeared on January 20th. The filibuster excuse could have been gone by January 6th if Senator Harry Reid had wanted it gone. But it’s gone now.

The filibuster excuse works like this. Any 41 senators can vote No on “cloture”, that is on bringing a bill to a vote, and that bill will never come to a vote, and anything the House of Representatives has done won’t matter. Any of the other 59 senators, the 435 House members, the president, the vice president, television pundits, and newspaper reporters can blame the threat of filibuster for anything they fail to do.

Now, the Senate itself is and always has been and was intended to be an anti-democratic institution. It serves no purpose that is not or could not be more democratically accomplished by the House alone. The Senate should simply be eliminated by Constitutional Amendment. But the filibuster is the most anti-democratic tool of the Senate, and can be eliminated without touching the Constitution, which does not mention it. If you take 41 senators from the 21 smallest states, you can block any legislation with a group of multi-millionaires elected by 11.2 percent of the American public. That fact is a national disgrace that should be remedied as quickly as possible.

The filibuster was created by accident when the Senate eliminated a seemingly redundant practice of voting on whether to vote. Senators then discovered, after a half-century of surviving just fine without the filibuster, that they could block votes by talking forever. In 1917 the Senate created a rule allowing a vote by two-thirds of those voting, to end a filibuster. In 1949 they changed the rule to require two-thirds of the entire Senate membership. In 1959 they changed it back. And in 1975 they changed the rule to allow three-fifths of the Senators sworn into office to end a filibuster and force a vote. Filibustering no longer requires giving long speeches. It only requires threatening to do so. The use of such threats has exploded over the past 10 years, dominating the decision-making process of our government and effectively eliminating the possibility of truly populist or progressive legislation emerging from Congress. This has happened at the same time that the forces of money, media, and party have led the Democrats in both houses to view the filibuster excuse as highly desirable, rather than as an impediment.

Now the Democrats have 60 senators (58 Democrats plus 2 independents caucusing with them — one leading the way, the other bringing up the rear). Perhaps this moment when a filibuster could be overcome by partisan power would be an opportune time to permanently overcome it for whatever forces dominate the Senate in the future by changing the rules to get rid of the thing. The Democrats have lost the excuse now. Every policy they enact that strays from majority opinion in the country has to be blamed on something other than the filibuster. So, with nothing to lose, why not rid us all of this cancer on our democracy?

Were the Democrats serious about eliminating the filibuster excuse, they would have taken steps over the past six months to do so. The President could have appointed Republican senators from states with Democratic governors to key jobs without cutting deals to ensure replacement by Republicans. Congress could have given Washington, D.C., representation in both houses of Congress or at least tried harder to do so. Or the Senate could have done what it could still do and should seize the current moment to make happen. It should simply change Senate Rule 22, which reads in part:
“‘Is it the sense of the Senate that the debate shall be brought to a close?’ And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn — except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting — then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of.”

This would seem to suggest that it takes 60 senators to block a filibuster and 66 senators (if 100 are present, otherwise fewer) to end the power of 60 senators to block filibusters. But that’s not the whole story. William Greider recently explained :
“In 1975 the filibuster issue was revived by post-Watergate Democrats frustrated in their efforts to enact popular reform legislation like campaign finance laws. Senator James Allen of Alabama, the most conservative Democrat in the Senate and a skillful parliamentary player, blocked them with a series of filibusters. Liberals were fed up with his delaying tactics. Senator Walter Mondale pushed a campaign to reduce the threshold from sixty-seven votes to a simple majority of fifty-one. In a parliamentary sleight of hand, the liberals broke Allen’s filibuster by a majority vote, thus evading the sixty-seven-vote rule. (Senate rules say you can’t change the rules without a cloture vote, but the Constitution says the Senate sets its own rules. As a practical matter, that means the majority can prevail whenever it decides to force the issue.) In 1975 the presiding officer during the debate, Vice President Rockefeller, first ruled with the liberals on a motion to declare Senator Allen out of order. When Allen appealed the “ruling of the chair” to the full Senate, the majority voted him down. Nervous Senate leaders, aware they were losing the precedent, offered a compromise. Henceforth, the cloture rule would require only sixty votes to stop a filibuster.”

Greider proposes reducing to 55 percent of the Senate the number of senators needed for cloture. I propose reducing it to 50 percent plus one. Either way, nobody is proposing that a minority be empowered to decide anything, only that a majority finally be permitted to (even to the extent allowed by an anti-democratic body like the U.S. Senate in which both Wyoming and California have the same number of senators).

As long as the filibuster remains on the books, the Democrats will claim that they cannot control all 60 of their senators. Never mind that we were told for years to shut up about peace and justice and work and contribute to the election of 60 Democrats after which joy and harmony would flow out of the Capitol. We will now be told that renegades cannot be controlled. And I don’t want to fight that, because I don’t want parties to be able to control their members. I don’t want their members straying in order to support minority interests, like pulic funding of private health insurance companies. But I do want members straying in order to support majority interests, like defunding wars.

Party dominance is as corrupting a force in our legislature as the filibuster itself, and therefore offers not only a weak solution for it but an undesirable one. Senator Bernie Sanders has asked the other 59 senators to commit to stopping any filibusters. And so he should. But he should also ask Senator Reid to put to a vote for decision by 51 senators (or 50 and the Vice President) a simple rule change to empower majority rule in a body that cannot without taking this step make any plausible case for the desirability of its continued existence.

This article has been updated from a version <http://www.davidswanson.org/node/1577> I published in December.

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David Swanson is the author of the upcoming book “Daybreak: Undoing the Imperial Presidency and Forming a More Perfect Union” by Seven Stories Press. You can pre-order it and find out when tour will be in your town: http://davidswanson.org/book. Arrange to review it on your blog and Seven Stories will get you a free copy. Contact crystal at sevenstories dot com.