Reid’s Filibuster Reform Is What the Founders Would Have Wanted

Bill Scher

The simmering but underreported Senate fight over filibuster reform may have greater impact on the legislative success of President Obama’s second term than the heavily watched budget battle. Without an end to filibuster abuse, Obama’s mandate could once again be throttled by conservative obstructionists who refuse to respect the spirit of our democracy and respond to the public’s demands for action.

The Senate’s rules on “cloture,” requiring a supermajority of 60 votes to cut off debate and move to a final vote, was never intended to create a supermajority threshold to pass legislation. In fact, the cloture rule was created in 1917, at the urging of President Woodrow Wilson, to stop filibuster abuse and allow the majority — not a supermajority — to work its will.

As Wilson said nearly 100 years ago about the plague of filibuster abuse and the need for a cloture rule, “the Senate of the United States is the only legislative body in the world which cannot act when its majority is ready for action.”

The rule worked as intended for several decades and constrained filibuster abuse, but it’s usage began to increase in the latter 20th century, and today is an epidemic. It’s become so commonplace that nearly every piece of legislation needs to secure supermajority support become law — a standard that the Constitution never envisioned.

Having said that, the concept of minority rights is very much part of our nation’s founding. James Madison wrote in The Federalist No. 10 that establishing a republic would mitigate the problem of “measures [that] are too often decided … by the superior force of an interested and overbearing majority.”

But Madison was just as concerned when an excessively powerful faction “consists of less than a majority.” He advocated for a Constitution that created a government which would balance, “secur[ing] the public good and private rights against the danger of such a faction, and at the same time [preserving] the spirit and the form of popular government.”

The specific filibuster reforms backed by Senate Majority Leader Harry Reid, and championed at Fix The Senate Now is exactly in the spirit of Madison. (You can click here to sign the Fix The Senate Now petition.)

Reid’s proposal is not a blunt power play so one faction of America can dominate another. It would lead to a restoration of Madisonian balance so the majority will can be executed with the minority retaining the power to play a constructive role.

Reid does not propose the end of the filibuster and the elimination of the minority voice. As reported by The Hill, “Reid proposed that the minority not be allowed to filibuster a motion to proceed to legislation. He would also require senators engaging in a filibuster to come to the Senate floor to do so.”

To filibuster a “motion to proceed” is to filibuster before debate begins, totally turning the entire concept of cloture on its head. Cloture is supposed to be about cutting off debate once it becomes patently clear the minority is endlessly talking solely to prevent the majority from having an up-or-down vote. It was never designed to prevent debate from commencing. And Reid’s plan still allows the minority to filibuster once debate begins, so long as it is a “talking filibuster” that requires the minority to show its face and make its case to the public.

There are certainly times when the nominal minority in the Senate can persuade and speak for the majority of the public. Democracy doesn’t rest between Election Days, and silencing of any faction would damage the spirit of our democracy. That’s why the minority should maintain the ability to exercise some power and not be stuffed in a closet.

But if the Senate minority wants to take the extraordinary step of attempting to block the Senate majority from functioning, it should have to prove it speaks for the public majority or face the political consequence of angering the public majority.

In Obama’s first term, conservative Republicans were able to chronically execute “silent” filibusters by simply voting against cloture or just threatening to oppose cloture. These acts never attracted significant media attention and in turn were unknown to most of the public. They never had to make the effort to convince the public they were right. Taking the extraordinary anti-democratic step was a no-cost proposition.

As a result,
the Washington Post’s Dylan Matthews estimates that there were 17 major bills that likely would have passed the Senate if there was no filibuster, including the American Jobs Act, the DREAM Act and Employee Free Choice Act.

This is not what the founders intended when they drafted the Constitution. This not what President Wilson and the 64th Senate intended when it established the cloture rule. Reid is standing firmly on constitutional ground.

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