Restore the Filibuster by repealing the 2-track system
created in 1970
Sent: Wednesday, July 22, 2020 1:20 PM
Subject: Senate Filibuster Reform
My Comment: Last night I listened to Tucker Carlson promote false information
about the Senate filibuster. I emailed the article below in April 2018 when
there was a lot of discussion about the filibuster. If you read the article,
you will see that the original purpose of the filibuster was to allow the
minority in the Senate to discuss and debate an issue—that is until a cloture
vote of 60% (originally 66%) of the Senate voted to end the discussion and move
the proposed law forward.
However, like so much of our federal government, the “Progressives” undermined
the purpose of the filibuster. In 1970, the Dems passed a rule that the
filibuster no longer required debate or discussion on the issue. The minority
could simply state they were going to filibuster a proposed law and that would
end the debate. The Senate would then move on to another issue.
This completely negated the original purpose of the filibuster, which was to
facilitate discussion and debate. No longer do we have a Mr. Smith Goes to Washington
type of filibuster, now we simply have a parliamentary trick whereby a minority
can kill a bill they don’t like—while
circumventing any need or requirement
for discussion or debate.
This is not what our founders wanted. I for one prefer the original form of the
filibuster, not the “Progressive” one.
Here is a link to another good article on restoring the
filibuster.
How and
Why the Senate Must Reform the Filibuster
Tom McClintock U.S. House of Representatives January 11, 2017
The Senate prides itself as being the greatest deliberative body in the world.
When Jefferson asked Washington why the Constitutional Convention created the
Senate, Washington compared it to the hot tea Jefferson cooled in a saucer. “We
pour legislation into the senatorial saucer to cool it.”
The Founders designed the two houses of Congress to have different perspectives
and temperaments. The House, representing smaller constituencies and constantly
up for re-election, would reflect the hot passions of popular will. This is a
vital component of representative government, but more is required in making
good decisions. The Founders knew, as Benjamin Franklin put it, that “Passion
governs, and she never governs wisely.” The Senate, with longer terms and
generally larger constituencies, was designed to temper passions with reason,
which requires deliberation. A lot of deliberation.
Central to ensuring this deliberation is the unfettered freedom of debate
accorded in the Senate. While the House rations time parsimoniously, often to
just a single hour of debate even on major legislation, the Senate insists on
giving all its members the widest possible latitude to hold a question up to
every light.
A popular aphorism in the House of Representatives is, “The other party is the
opposition; the Senate is the enemy.” As a member of the House myself, I find
the Senate’s byzantine rules frustrating; but after all, frustrating House
members is part of the Senate’s mission. Yes, the Senate is a pain, but where
would we be without it?
On the other hand, deliberation is a means to an end, not an end in itself. It
is a means to achieve wise and enlightened legislation with the consent of the
people. And this is where the Senate is on the verge of dysfunction.
Over the last several congressional elections, and most conspicuously in the
recent presidential election, the American people have sent a clear signal that
they want a major change in public policy. It is the duty of Congress to
respond. To do so, it needs to deliberate wisely and in good faith, with all
sides participating and all voices heard. But then this deliberation must
result in laws that accord with the people’s will.
Some in the new Congress have set a positive tone, but we have also heard
reactionary elements vow to thwart the popular mandate. It is natural for the
minority to use every available means to try to change the majority’s mind or
temper its fervor, and our system offers it many ways to do so. But that’s
different from obstruction, which is why these vows by some senators are as
disturbing as they are credible.
They are credible because the modern Senate filibuster has become a tool for
the minority to block any meaningful legislation from being enacted or even
considered. Given its record of abuse in recent years—by both parties—the
Senate needs to repair its rules regarding the filibuster if it is to have any
hope of performing its constitutional duty.
The parliamentary tactic of a minority thwarting the will of the majority by
talking a bill to death is nothing new. The Roman Senate’s rules required
business to conclude before sunset. Cato the Younger discovered that he could
block Julius Caesar’s initiatives by talking until dusk descended on the Senate
chamber. Caesar responded by throwing Cato in jail. Common parliamentary
practice dealt with the tactic by allowing a motion to “order the previous
question”—in other words, to close debate and vote—often requiring a two-thirds
vote. This super-majority threshold to close debate is rooted in the principle
that a significant minority should be able to extend debate. After all, a
minority exists to convince the majority to its way of thinking and often
identifies flaws in a proposal that a majority doesn’t see in its rush to
adopt. This is the fruit of deliberation and the essence of deliberative
assemblies.
But this parliamentary principle assumes that there is an actual debate, that
it is germane to the subject at hand, and that it is not conducted in a
manifestly dilatory manner.
Within a few decades of the American Founding, senators rediscovered Cato’s
practice of killing a bill by killing time, and the Senate filibuster was born.
Yet it was rarely used because of its natural limitations. A filibustering
senator had to remain for the most part at his desk and on his feet. In 1908,
for example, Robert La Follette of Wisconsin held the
floor for 18 hours—speaking for long periods of time, and demanding dozens of
quorum calls and roll-call votes—to stall a banking reform bill. The bill
eventually passed, but not without significant consternation on both sides, due
to the fact that until the filibustered matter was disposed of, the Senate
could not move on to other business.
The filibuster is fundamentally different today because of two changes to
Senate rules—changes that explain the body’s current inability to act. The
first occurred in 1917 in response to a filibuster of something called the
Armed Ship Bill. The Senate adopted a cloture rule setting the threshold for
ending debate at two-thirds of those present and voting, later changed to
three-fifths of the whole Senate. Even then, this change was in keeping with
common parliamentary practice. And even after its passage, the filibuster’s
physically demanding nature meant that it was seldom employed. There were only
58 filibusters in the next 52 years—barely one per year.
But beginning in 1970, the number of filibusters exploded by a magnitude of
36-fold. There have been 1,700 in the 46 years since then. Why? Because in
1970, Senate Majority Leader Mike Mansfield instituted a “two-track” system
that allowed the Senate, by unanimous consent or the approval of the minority
leader, to bypass a filibustered bill and go on to another. This relieved a
filibustering senator of the job of having to talk through the night and it
relieved his colleagues of their frustration.
The filibuster thus entered the couch-potato world of virtual reality, where an
actual speech is no longer required to block a vote. Today the mere threat of a
filibuster suffices to kill a bill as the Senate shrugs and goes on to other
business. The filibuster has been stripped of all the unpleasantness that
discouraged its use and encouraged compromise and resolution.
Whereas the filibuster prior to 1970 was designed to ensure debate, after
adoption of the two-track system it mutated into a procedure that prevents
debate. As a result, the greatest deliberative body in the world now has
difficulty deliberating on anything of importance.
During the last session of Congress, the House sent hundreds of bills to the
Senate, including appropriations bills required to fund the government. Instead
of amending those bills and sending them back to the House, the Senate seized
up—not for lack of majority will, but because of minority recalcitrance and the
post-1970 filibuster.
This represents three serious dangers to constitutional government.
First, the legislative branch cannot function if one house proves unable to act
on major legislation, and the atrophy of the legislative branch drives a
corresponding hypertrophy of the executive branch. It is perhaps the single
greatest reason for the rise of the imperial executive in recent decades.
President Obama’s constant refrain, “If Congress fails to act I will,” is
poisonous to a constitutional republic—but it is inevitable if the legislature
wastes away. Nature abhors a vacuum, and the modern Senate filibuster has
created one at the heart of our Constitution.
Second, because the American people hold the sovereign authority in our country
but delegate sovereign power to their elected representatives, they have every
reason to lose faith in their government if their broad sentiments expressed in
elections are not translated into law. This is why the belief that “my vote
doesn’t matter”—a belief suicidal to a democratic republic—is increasingly
heard expressed in our country today.
Third, the ability of the minority to cause gridlock in the legislative branch
undermines the authority of the Constitution itself. Implicit in the design of
Congress is its power to act on most matters by majority vote. Extraordinary
majorities are reserved only for extraordinary matters such as treaties,
constitutional amendments, impeachments, expulsions, and veto overrides. The
practical effect of the modern filibuster is to replace the constitutional
benchmark of majority rule with an artificial threshold of three-fifths.
A central concept in maintaining the balance of powers is the assumption that
the members of each branch of government will jealously and aggressively defend
their prerogatives against the others. So why do senators allow their body to
be paralyzed?
Many argue that the current 60-vote cloture threshold is necessary to prevent
one party from running amok; that the requirement for an extraordinary majority
assures bipartisanship and compromise. They rightly warn that if legislation is
to stand the test of time, it must have a certain degree of bipartisan
consensus that the cloture rule facilitates. Yet when one looks at the Senate
today, it’s hard to find much collegiality or compromise, both of which require
the give-and-take of good-faith deliberation. Nor is compromise possible if the
matter to be compromised can’t be considered. If the minority can block an
initiative by a mere threat to filibuster, it has no incentive to pursue
compromise.
Republican defenders of the modern filibuster note that the greatest growth of
government occurs when Democrats hold both the White House and Congress. The current
rules, they argue, are an essential brake for the minority to use at such
times. But unfortunately, these rules have proven even more effective at
blocking legislation that shrinks government. The result is a ratcheting effect
that locks in every government expansion, even those that prove disastrous.
One obvious solution to the filibuster is to require a simple majority to close
debate, as the House has done for centuries. But this defeats one of the chief
purposes of the Senate: a significant minority ought to be heard over the
objections of a majority. So how can this purpose be
preserved, while restoring the Senate’s ability to legislate?
First, the Senate should get rid of the two-track system that allows it to
bypass a filibustered bill and reinstitute the pre-1970 requirement that
filibusterers hold the floor. The fact that the number of filibusters exploded
after the two-track system was introduced speaks for itself. Once the Senate
removed all the fuss and bother of the filibuster, filibusters became common.
Yes, this means the Senate would have to deal with a filibuster before moving
on to other matters—but it is precisely this inconvenience that made it such a
rare event and built pressure on both sides to resolve an impasse.
Second, the Senate should restore the parliamentary principle that debate must
be germane to the pending piece of legislation. The Senate may pride itself on
colorful tales of Huey Long reading Cajun recipes on the Senate floor. But how
does this practice fulfill the role of the Senate as a deliberative body? Time
on the Senate floor is a critical and limited public resource. Tolerating
irrelevant speeches squanders that resource and makes a mockery of the Senate.
Senate rules already require germane debate during the first three hours of a
legislative day—but not after that! Go figure.
Third, make the “motion to proceed” undebatable, or at least subject to a
majority vote. This incidental motion is itself now subject to filibuster,
which prevents the Senate from even getting to actual bills. Great debates
should be had on great matters—but not great debates on whether to debate.
Fourth, limit senators to two speeches on a question. Under current Senate
rules, a single senator can make two speeches on every motion every legislative
day. Fifth, after a certain period of debate has elapsed—during which
filibustering can occur—allow a majority to set a limit for individual speeches
on a pending question to something like two hours. A senator who can’t get to
the heart of a matter in two hours isn’t trying very hard. Some senators have
argued that the Senate can repair itself within its current rules. The majority
leader could decline to sidetrack filibustered bills, force a debate until the
minority is exhausted, and hold the Senate in session to avoid resetting the
two-speech per day limit. But experience has shown that in a battle of wills, a
determined minority will prevail. The surer course is to restore the original
parliamentary principles of debate to Senate rules.
There are two ways to implement these reforms. One is to follow the precedent
established by Senate Democrats in 2013 when they lowered the cloture threshold
to a majority for non-Supreme Court presidential nominees: ignore the rules as
they are written, declare a new and fictitious interpretation, and impose that
interpretation by overturning the parliamentary ruling of the chair. This
“nuclear option” might be effective, but it is highly corrosive to the
parliamentary procedure required for a well-functioning legislature. Pretending
that a rule says something different than it does is a shortcut to anarchy.
The other way is to invoke what reformers over the years have called the
“constitutional option.” Article I, Section 5 of the Constitution grants each house
the power to establish its own rules. Senate tradition holds that, by virtue of
its staggered terms, it is a continuing body and therefore its rules continue
in full force from session to session until amended. Those rules require a
two-thirds vote for cloture on a change to the rules, creating the paradox that
the very provision that needs reform prevents reform.
This doctrine of the Senate as a continuing body, however, is belied by the
fact that all pending motions at the close of one Congress do not extend into
the next. It also runs afoul of the bedrock principle that one Congress may not
bind the next. A strong case can be made that until the Senate adopts rules to
govern its two-year session, it is operating solely on precedent. It retains its
constitutional authority to adopt new rules by a simple majority vote for the
current session unfettered by hindrances imposed by a previous one.
The choice of whether the Senate majority restores its constitutional role in
lawmaking is its own to make, to live with, and to answer for. In making that
choice, it needs to consider whether its current rules of debate advance or
obstruct its role as a deliberative body with the responsibility of passing
reasonable laws that comport with the public will.
Of historic moments like these, Shakespeare’s Brutus said, “There is a tide in
the affairs of men, which, taken at the flood, leads on to fortune; Omitted,
all the voyage of their life is bound in shallows and in miseries. On such a
full sea are we now afloat, and we must take the current when it serves or lose
our ventures.” Voters elected Republican majorities in both houses of Congress
and they expect action. They’ll get it from the President and from the House.
But in order for the Senate to rise to this occasion, it must reform its rules.
https://imprimis.hillsdale.edu/senate-must-reform-filibuster/