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Catch 22: The Case for Filibuster Reform

September 23, 2014
It is evident that the United States Congress has reached unsurpassed levels of unproductivity. The trends in the number of bills passed by Congress each year has been trending significantly downward. The 2009-2010 Congress passed a combined 383 laws. To put that in perspective, the 1947-1948 Congress, which at the time was lambasted as a “do-nothing” Congress, passed a combined 906 laws (Davis). A Congress in today’s politics that passed 906 laws would seem remarkable, if not impossible. What has changed?

By Michael Fisher, CAS’16

While the answer to this question is certainly multifaceted, institutional factors are at least partially to blame. Namely, a once barely thought of rule of the Senate, Rule 22, has helped bring Congress to this standstill. Rule 22 is more commonly known as the filibuster. The Senate grants unlimited debate, and in order to end debate, or invoke cloture, to proceed to a vote on a bill or nominee, sixty votes are needed. This mechanism was designed to protect the minority’s rights against mob rule—to protect, say a 48-Senator minority against a 52-Senator majority. It was designed to ensure a majority would not have absolute power over a minority.

Initially, Rule 22 worked well. In the 1960s, a time of controversial issues such as the Voting Rights Act and the Great Society, the filibuster was used only 8% of the time (Sinclair). What this suggests is that the filibuster once did not obstruct debate; it only limited or ended debate on a certain issue.

Now, the filibuster has been abused. In 2009-2010, or the 111th Congress, the filibuster was used 72% of the time, or an 800% increase since the 1960s (Sinclair). Yes, it is true that there are controversial issues today that cause a minority to want to protect itself against the opinion of a majority, especially when it comes to issues such as healthcare, immigration, and the economy. However, as previously mentioned, these types of issues permeated American politics and culture in the 1960s as well, a time period that saw filibustering occur only 8% of the time.

Table 1. The vertical axis represents the percentage of measures affected by a filibuster. The horizontal axis represents years. As the percentage of bills affected by the filibuster has increased, the number of bills passed by Congress has decreased. In 1960, 417 laws were passed. In 2011, 90 laws were passed (Information obtained from Sinclar; Davis).Table 1. The vertical axis represents the percentage of measures affected by a filibuster. The horizontal axis represents years. As the percentage of bills affected by the filibuster has increased, the number of bills passed by Congress has decreased. In 1960, 417 laws were passed. In 2011, 90 laws were passed (Information obtained from Sinclar; Davis).

 

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While in the 1960s the filibuster was used to end debate, the filibuster is now being used to obstruct, and prevent, debate. The United States government was designed to be a slow, deliberate government that discussed issues. What the abuse of the filibuster has meant is that this slow and deliberate government cannot discuss many of the issues that plague our country today. There is also no light at the end of the tunnel at the current moment: according to Roll Call, the 2013-2014 Senate is on a record-breaking pace in terms of the amount of filibusters invoked (Lesniewski).

The effects of the way the filibuster is currently being used are starting to become tangible. It is well known that there is an immigration crisis at our southern border: thousands of children are fleeing their countries in hopes of reaching the United States. The need for immigration reform has thus reached its peak. However, history suggests it is doubtful that any meaningful immigration reform can occur in the near future. In 2009 and in 2010, the DREAM (Development, Relief, and Education for Alien Minors) Act, was filibustered in the Senate, before any debate on the issue could really occur (Matthews). This is not to say that the DREAM Act should have been passed; no judgement is being made on the merits of the bill. However, as is being seen today, it is important to confront these issues head-on, with both sides of an issue discussing and debating this issue in a deliberate manner, confronting and perhaps solving the differences they have on the issue. However, the filibuster has prevented any sort of debate on controversial issues before a bill even reaches the floor. And as is being seen, such obstruction is now having tangible effects. Instead of encouraging debate, the filibuster is now being used to kill legislation and nominations that it strongly opposes” (Sinclair).

With the ability to block the majority party’s agenda, the minority party’s use of the filibuster has led to increased tension, and therefore an increased atmosphere of partisanship, in Congress. It is for this reason that the place of my internship for the summer, No Labels, a nonpartisan nonprofit seeking to promote bipartisanship in Congress, has proposed to ideas for filibuster reform. They are to require real, and not virtual, filibusters; and to end filibusters on motions to proceed.

Their statement explains that “if senators want to halt action on a bill, they must take the floor and hold it through sustained debate” (No Labels). Currently, Senators can sustain “virtual” filibusters, in which they do not have to talk and debate throughout the filibuster. If such a reform were to pass, it could help to once again promote debate in the Senate. The problem is not that Senators disagree with each other; it is that the institution allows for obstruction without discussion. Such a reform would provide for a forum for discussion.

As for the second proposed reform, ending filibusters on motions to proceed, No Labels explains that, “Today, filibusters can be used both to prevent a bill from reaching the floor for debate (motion to proceed) and from ultimately being passed. If the Senate simply ended the practice of filibustering motions to proceed, it could cut the number of filibusters in half and allow more issues to be debated and voted on by the full Senate” (No Labels).

Such a reform would decrease the number of filibusters. However, more importantly, this reform would encourage debate on more issues, instead of the current situation in which filibusters have prevented debate on important policy areas in the United States.

On January 24, 2013, Senate Majority Leader Harry Reid and Senate Minority Leader Mitch McConnell agreed on small number of filibuster reforms. However, more can be done. No Labels is currently building a coalition of “Problem Solvers” in Congress in the hopes of encouraging reforms such as those mentioned to promote Congress to “stop fighting” and to “start fixing.”

 

References

Barbara Sinclair email, via Professor Rosenwald, March 24, 2014.

Davis, Susan. USA Today, “This Congress could be least productive since 1947.” Last     modified August 15, 2012. Accessed August 1, 2014.             http://usatoday30.usatoday.com/news/washington/story/2012-08-  14/unproductive-congress-not-passing-bills/57060096/1.

Lesniewski, Niels. Roll Call, “Senate on Record-Setting ‘Filibuster’ Pace .” Last modified   December 30, 2013. Accessed August 1, 2014.             http://blogs.rollcall.com/wgdb/senate-on-record-setting-cloture-pace/.

Matthews, Dylan. The Washington Post, “17 Bills that likely would have passed the Senate if it didn’t have the filibuster.” Last modified December 5, 2012. Accessed August 2, 2014. http://www.washingtonpost.com/blogs/wonkblog/wp/2012/12/05/17-bills-that-likely-would-have-passed-the-senate-if-it-didnt-have-the-filibuster/.

No Labels. “Fix the Filibuster.” Accessed August 2, 2014. http://www.nolabels.org/work#overlay-1.

Sinclair, Barbara. Party Wars: Polarization and the Politics of National Policy Making.       Norman, OK: University of Oklahoma Press, 2006.

 

 

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