By Richard A. Arenberg
The understandable focus on the “fiscal cliff” negotiations on Capitol Hill has obscured a more far-reaching historical crisis in the Senate. Tomorrow the new Congress will come to grips with the filibuster reform debate which has been raging over the past several weeks slightly off the public’s radar.
Much of the media commentary has missed the main issue. The frustrated majority Democrats, angry with four years of Republican abuse of the filibuster has been calling for reform. But, much of the public debate tends to center on eliminating the filibuster and allowing the majority to work its will in the Senate.
Many have argued that the filibuster rule is unconstitutional because it imposes a supermajority requirement not delineated in the Constitution. In fact, Common Cause filed a law suit making just that argument. But, on December 21, United States District Judge Emmet G. Sullivan dismissed the case. He wrote, “Nowhere does the Constitution contain express requirements regarding the proper length of, or method for, the Senate to debate proposed legislation.”
The issue in the Senate itself is very different. No senator is calling for the elimination of the filibuster. In fact, the Senate has been distinguished for more than 200 years by the protection of minority rights balanced with majority rule. The foundation of that protection has been the filibuster, guaranteeing unlimited debate and unfettered amendment. Unlike the House of Representatives where the majority, largely under the control of the Speaker, through the Rules Committee works its will, limits debate, and often permits no amendments, in the Senate the minority can always speak and offer its amendments.
In the Senate, the reformers are calling for three very specific moderate reforms, two of which Bob Dove and I proposed in our book, Defending the Filibuster: The Soul of the Senate, and strongly support. These are the elimination of filibusters on the motion to take a bill up for debate and the motions necessary to take a bill which has passed the Senate to conference committee with the House. We believe that there is no value added by these filibusters against procedural steps. What would remain is the right to filibuster the substance of the bill itself.
The third proposed amendment is the so-called “talking filibuster.” This is the idea that senators be required to continue to debate a bill which they are filibustering. In reality, this provision would not be likely to have the intended consequences and, in any event, it can be accomplished under existing rules. They merely haven’t been employed.
The crux of the problem is not the package of moderate reforms being proposed. It is the means to those ends which threaten the Senate’s identity. Majority Leader Reid and many of the Democrats are proposing to end debate and change the rules with a simple majority. This violates existing rules which require a 2/3 vote to end the debate.
Proponents call this ploy “the constitutional option.” Opponents refer to it as the “nuclear option” because of the effect it would have on the Senate. It might succeed, but only if the vice president ignores the Senate rules and the advice of the parliamentarian. If Senator Reid has the support of 50 members of his caucus, he can then ratify the vice president’s ruling making it the new precedent of the Senate. (Vice President Biden has not said what he might do.) Changing the rules in this fashion would be unprecedented and, in my judgment, endangers the role of the Senate in our system.
While proponents deny it, this is a slippery slope. The inevitable outcome is that once the precedent is established that a simple majority can change the rules, they will do what majorities do. They will take control. Over a short period of time, the Senate would establish something like the House Rules Committee and limit debate. They would decide whether and which amendments to permit. Committee ratios would become skewed as they are in the House and the majority leader would accumulate power, weakening the rank and file.
A bipartisan group of senior senators led by Sens. John McCain (R-AZ) and Carl Levin (D-MI) have proposed a compromise made up of rules which would accomplish not all, but most, of the reformers’ objectives. They have proposed these changes to their respective leaders and caucuses. The key is the such a compromise might well command the necessary 67 votes.
If the Senate follows the long history of its changes to the filibuster, it will be accomplished by rejecting the radical route of breaking the rules to change them through the “constitutional option.” Instead, a bipartisan supermajority of senators will embrace compromise. This is the Senate way.
Richard A. Arenberg is co-author of Defending the Filibuster: The Soul of the Senate, written with former Senate Parliamentarian Robert B. Dove. He served on Capitol Hill for 34 years, working in senior positions for Majority Leader George Mitchell (D-ME) and Sens. Paul Tsongas (D-MA), and Carl Levin (D-MI). He is currently an adjunct professor at Brown University, Northeastern University, and Suffolk University.