Even in the face of an insurrection and a deadly pandemic, the United States Senate took its sweet time to get itself organized and up running in an effective manner — and mostly because of a disagreement over the filibuster, the arcane Senate rule that too often grinds normal lawmaking to a halt.
To his credit, President Biden wants the next COVID-19 relief package to go through the regular legislative process, in the hope that what emerges will enjoy some bipartisan support. That makes his proposed $1.9 trillion relief package an appropriate place to return to non-obstructionist lawmaking.
There’s certainly room for disagreement on various aspect of this package, including its size and how targeted it should be in helping Americans. But they are all matters perfectly capable of being resolved by majority vote in a legislative process — not hobbled, hindered, or blocked by filibustering.
In recent years, the 60-vote requirement to overcome a filibuster has become the de facto rule to pass any significant legislation. The requirement hands the minority party too much power to thwart bills, turning the Senate into a legislative graveyard.
There are exceptions, and Democrats will be able to push much of Biden’s COVID package through without worrying about filibusters, by using the budgetary process known as reconciliation. But reconciliation is a weak and limited tool, and using it shouldn’t be necessary in the first place.
Filibusters, a practice born in 1806, were once rare. But in the civil rights era, Southern opposition to ending Jim Crow policies increased its use among Southern senators. Creation of a second track for Senate business also contributed. Whereas a filibuster once brought all Senate work to a halt until it was resolved, that’s no longer the case. Instead, if 60 votes can’t be mustered, the Senate simply shifts to other matters, leaving the filibustered legislation to languish. Presto: the new, convenient, painless, virtual filibuster. That situation has given us a Senate where virtual filibusters abound — so much so that the Senate has ended the filibustering of judicial nominees.
“Senators need to ask themselves, how did it happen that a supermajority of 60 votes is needed to pass a simple motion to proceed to debate a legislative proposition when a simple majority of 51 votes can confirm a nominee’s lifetime appointment to the Supreme Court of the United States?” says former Massachusetts US Senator Paul Kirk.
How could the Senate deliver more to the American people, now that Republican leader Mitch McConnell has agreed to majority leader Chuck Schumer’s basic operating rules for the Senate? One way would be for McConnell, who has made obstruction a dark art, to discourage his caucus from abuse of the filibuster. Last week, he claimed to see these marching orders in the recent election: “We’re to have a robust discussion and seek common ground.” That sounded promising, but meanwhile, the Republican leader pressed Schumer for a rules agreement that preserved the filibuster as is — a promise Schumer wisely refused to make. That standoff delayed a new Senate organizing resolution until McConnell was reassured that Schumer didn’t have enough Democratic votes to eliminate the filibuster.
Since Senate Democrats aren’t all on board with getting rid of the filibuster, nor is it Biden’s first choice, it’s time to consider that it doesn’t have to be all or nothing. One way forward now would be if a significant number of senators could agree informally to end filibuster abuse. With the Senate center asserting itself — witness the role it played in securing the December COVID legislation — that’s not beyond the realm of possibility.
Certainly some senators would prefer to serve in a more productive chamber. Kirk is part of a bipartisan coalition of 70 former senators advocating reforms. They want the body to return to a more cooperative and collegial way of doing business, re-empowering the committee and subcommittee process so that senators, as Kirk puts it, “hammer out differences through robust negotiation, shaping public policy for presentation and debate by the full Senate.” The proposals that emerged from such a process, Kirk says, would be less likely to be filibustered.
The filibuster could also be altered but not eliminated. Senator Jeff Merkley, Democrat of Oregon, has suggested a stand-and-palaver filibuster, requiring those blocking a bill to actually hold the floor and speak. Norm Ornstein, one of America’s leading political scientists, suggests lowering the vote threshold for ending a filibuster and shifting the process burden from those trying to terminate a filibuster to those intent on continuing it.
Under Ornstein’s proposal, filibustering senators would be required to meet a specific threshold — he favors 45 votes — to keep it going. “The majority could call a vote at any time,” he says. That means the filibusterers would have to be truly committed to their cause. “The minority could be required to be there, sleeping on cots off the floor, night and day, just like the old days,” he notes.
As the Senate has demonstrated in eliminating the filibustering of judicial nominees, the body can change longstanding practice by simple majority vote.
The Senate is now broken — but, hopefully, not beyond repair. Biden, who long served there, has good relations with many members. He should put nudging that fractious and fractured body toward a workable fix on his already extensive to-do list. And his message on the filibuster should be simple: If it can’t be fixed, then it must be nixed.
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