The Senate’s legislative logjam was well-documented long before the “fiscal cliff” approached. Democrats may hold a majority — and will even enjoy a slightly larger one next year courtesy of the nation’s voters — but the filibuster has become so abused that it’s simply become a given in the chamber that passing legislation of any substance requires a 60-vote super-majority. That’s the minimum required to invoke cloture and prevent or curtail a filibuster. Even getting a presidential nominee approved has become maddeningly difficult, no matter how qualified or uncontroversial the prospective judge or appointee may be.
That needs to change. In the era when “Mr. Smith Goes to Washington” was filmed, filibusters were a rarity and required participants to actually hold the floor and speak — around the clock in some cases — as Jimmy Stewart’s Mr. Smith does in the 1939 Frank Capra movie. The filibuster was never written into the U.S. Constitution. It wasn’t even part of the Senate rules until 1917. Over the years, changes were made in the Senate rules, including the 1975 reforms that dropped the requirement for actual floor debate. Now they are invoked on purely procedural votes.
Fortunately, it is within the Senate’s powers to rewrite its rules without a super-majority. At the start of the 113th Congress, the Senate will have the power to change standing rules with a simple majority vote. That’s the so-called “nuclear” option that senators have been reluctant to use in the past (it was seriously considered a half-century ago, when filibusters were used to defeat civil rights legislation). They now have no option but to pursue it on Jan. 3.
What would the reforms look like? They might start by requiring the minority to produce at least 40 votes to sustain a filibuster rather than require 60 to break one. It would also require filibustering senators to stay on the floor and actually talk. That puts a price on the filibuster — not only in time, energy and sore throats but in political capital.
Conversely, certain majority obstructionist tactics ought to be curbed as well. Democrats ought not be able to fill up the proverbial “amendment tree” so that Republicans can’t offer amendments to legislation on the floor. Some minimum number of amendments ought to be reserved for the minority party on every bill.
None of these changes would eliminate the filibuster, but they would go a long way to ensuring that the filibuster is only used in extraordinary circumstances and not on such a regular basis. The public will likely endorse these reforms as a matter of common sense. How many voters even know that a filibuster doesn’t require a Mr. Smith-like oratory? Senate procedures are mostly a mystery to those living outside the Beltway (or at least not tuned daily to C-SPAN).
Senate Minority Leader Mitch McConnell has already announced his opposition to filibuster reform and suggested that it would actually make partisanship worse. But it’s hard to imagine a more dysfunctional circumstance. As Senate Majority Leader Harry Reid has observed, his tenure in the Senate’s top job has been marked by no fewer than 385 filibusters, while Lyndon Johnson faced only one. Enough is enough.
Two years ago, the two leaders talked of a “gentleman’s agreement” that would curb filibusters and offer more votes on amendments. But that hardly made a difference. The problem has only gotten worse, and the nation’s problems are now too serious to settle for the kind of procedural gridlock that has left the Senate paralyzed. Circle the Jan 3 date. It’s time some reasonable limits were put on Senate obstructionism that has gone hopelessly out of control.