As the inept vice president on HBO’s “Veep,” Julia Lewis-Dreyfus is fighting for a never quite defined filibuster reform bill. It’s the perfect foil for comedy, frustratingly unattainable, but directed at a target apparently richly deserving of ridicule.
In the real world, Majority Leader Harry Reid, frustrated by the latest Republican filibuster, recently apologized for failing to support filibuster reform. In addition, Common Cause has filed a lawsuit claiming that Rule XXII, which requires 60 votes to cut off a filibuster, is unconstitutional. The suit claims, “The principle of majority rule is so basic to the concept of a democratically elected legislative body that it did not need to be expressly stated in the Constitution.”
The federal courts are unlikely to insert themselves into a controversy about Senate rules. If they do, they are unlikely to buy the assertion that the Constitution, which explicitly grants the Senate the right to write its own rules, is meant to imply that only simple majority rule will do. And the majority leader was probably not signaling a softening of his opposition to elimination of the filibuster. It is one thing to acknowledge that some reforms are needed; it is quite another to radically change the structure of the Senate.
The twin pillars on which the Senate is constructed are extended debate and virtually unfettered amendment. The right to speak in the Senate and the right to offer amendments to legislation, in most instances without any germaneness requirement, are central to the Senate’s role. These are fundamental protections for the minority. John Adams, the Senate’s first president, wrote, “Mankind will in time discover that unbridled majorities are as tyrannical and cruel as unlimited despots.”
In the House of Representatives, the majority tightly controls what bills will be considered, what amendments, if any, will be in order, how much debate will be permitted, and when and under what rules votes will occur. In the Senate, because of the right to filibuster, the minority must be consulted. Generally, to do anything of import in the Senate, at least some members of the minority party must be involved.
It is undeniable that the Senate rules have been abused in recent years. Extreme partisanship has led to the exploitation of the filibuster, and use of the tactic has exploded. The current minority has used it repeatedly to try to block virtually all major legislation and many judicial and executive branch nominations.
The productive functioning of the Senate requires a balance of rules protecting the minority and restraint in their use by senators. Senators have historically used these rules as leverage to foster pragmatism, compromise, and negotiation — in other words, what we call “legislating,” but have reserved the actual use of the filibuster for major confrontations.
What we have seen in recent years is bad behavior, no doubt. But the solution for partisan bad behavior is not rewriting the Senate rules. The House operates by majority rule. What extreme partisanship has meant there is that the majority ignores the minority, the leadership rarely speaks to each other, and the minority is nearly legislatively irrelevant. It would be tragic for the Senate and for the nation if, either at the hands of senators or the courts, the filibuster were swept away, leaving the Senate a shadow of the House.
Still, reform is possible. The Senate has compromised and modified the filibuster before. For example, filibusters could be prohibited on the procedural motion to take up a bill.
But those seeking to end the filibuster would rue the day. We need only recall how overzealous majorities in the Wisconsin legislature attacked collective bargaining, or in Virginia sought to impose mandatory vaginal probes on women seeking abortions. We can easily imagine efforts to overturn health reform, repeal financial reforms, cripple environmental regulation, scale back Medicare, privatize Social Security, or drill for oil in the Arctic Wildlife Refuge. If Mitt Romney is elected with a Republican Congress, without the historic protections in the Senate rules, where could a Democratic minority turn?
Richard A. Arenberg, co-author of “Defending the Filibuster: The Soul of the Senate,” is currently an adjunct professor at Brown University, Northeastern University, and Suffolk University.