The U.S. Senate’s filibuster rule (Rule XXII) currently requires 60 votes to stop debate and proceed to a vote on the merits of a bill or other proposal. It was designed to encourage full and careful debate, preventing the majority from steamrolling bills into law. In practice, the rule allows a minority – just 41 of the 100 senators — to stifle debate, not just slowing down the majority, but blocking it altogether.
For most of U.S. history, the Senate minority – Republican or Democratic – used the filibuster sparingly.
But in the two years of the 111th Congress (January 2009-January 2011), the minority Senate Republicans staged at least 136 filibusters. In some cases, the majority was able to muster the 60 votes demanded by the filibuster rule and move ahead. But at least 80 times, the minority was able to block action, and even debate. And these are just the filibusters we know about; in other cases, the mere threat of a filibuster persuaded Senate Majority Leader Harry Reid to abandon legislation without even trying to bring it to the floor.
This practice of the minority Senate Republicans has continued in the 112th Congress (January 2011-January 2013).
Reform of the filibuster rule is one of the major issues supported by Common Cause, a nonpartisan, nonprofit advocacy organization for citizens to make their voices heard in the political process and to hold their elected leaders accountable to the public interest.
On May 14, 2012, Common Cause, four members of the House of Representatives and three private citizens sued Senate President Joe Biden and the Secretary, Parliamentarian, and Sergeant-at-Arms of the U.S. Senate in the U.S. District Court for the District of Columbia for declaratory and injunctive relief with respect to Senate Rule XXII.
The Common Cause complaint asserts that the 60-vote requirement in Senate Rule XXII violates the default parliamentary majority-takes-all rule, the careful balance of powers in the legislative branch and between the three branches, and the power of the Senate itself to changes its own rules (because along with Rule V (which continues the Senate rules from Senate to Senate) Rule XXII seems to require that 3/5 of Senators vote to change Rule XXII). In particular, the complaint alleges that the filibuster violates the Quorum Clause, the Presentment Clause, the power of the Vice President to break a Senate tie, the Advice and Consent Clause, and the equal representation of the states in the Senate–all of which in different ways assume majority rule. It also argues that the filibuster is in tension with the eight constitutional exceptions to majority rule.
In the Senate itself last week U.S. Senate Majority Leader Harry Reid admitted that its filibuster rule should be changed and confessed he had erred in not supporting such changes at the start of this session of Congress in January 2011. The precipitating cause of this admission and confession was the Republican Senators’ using the filibuster rule to prevent a vote on reauthorization of the Export-Import Bank.
Reid’s belated support for changing the filibuster rule was welcomed in an editorial in the New York Times. But the newspaper endorsed one of the minimalist proposed changes: requiring 10 senators to start a filibuster and the supporters of a filibuster to speak continuously on the Senate floor to keep it going.
Even such a minimal change would be impossible during this congressional session because another Senate rule requires a two-thirds vote (67 senators) to change the rules. It would be easier to change the rules at the start of the next session (January 2013) when only a majority vote (51 senators) would be needed for such a change changes although some senators probably would argue that such a change would still require a two-thirds vote.
Prior posts have castigated the Senate Rules as a major deficiency in our government: “The Abominable Rules of the U.S. Senate;” “The Abominable Rules of the U.S. Senate Are Modified;” and “Miniscule Proposed Reform of Dysfunctional U.S. Senate Rules.” A post with a more general critique of the Senate and other aspects of our national government is “The Antiquated U.S. Constitution.”
Comment: Differing Opinions on the Constitutionality of the U.S. Senate’s Filibuster Rule
This week’s lawsuit attacking the constitutionality of the U.S. Senate’s filibuster rule has prompted expressions of opinion on the merits of the case, initially by non-lawyers.
Ezra Klein purports to summarize the argument for unconstitutionality that has been set forth in a law review article by the plaintiffs’ attorney, Emmet Bondurant. It rests on the proposition that the framers did not intend to authorize a supermajority requirement to stop debate. The framers discussed requiring a supermajority in Congress to pass anything. But they rejected that idea. Klein adds that the lawsuit may put additional pressure on senators to change the rule.
Jonathan Bernstein says this lawsuit is specious although he wants to see the filibuster rule changed. He relies on Article I, Section 5 (2) of the Constitution that states, “Each House may determine the rules of its proceedings.” He squares this provision with the Constitution’s requiring supermajorities for impeachment and certain other issues with the assertion that the Senate sets its own rules except for where the Constitution specifies otherwise.
Klein, Is the filibuster unconstitutional? (May 15, 2012),http://www.washingtonpost.com/blogs/ezra-klein/post/is-the-filibuster-unconstitutional/2012/05/15/gIQAYLp7QU_blog.html?wprss=rss_ezra-klein; Bernstein, A specious lawsuit against the filibuster (May 15, 2012), http://www.washingtonpost.com/blogs/post-partisan/post/a-specious-lawsuit-against-the-filibuster/2012/05/15/gIQAQUbnRU_blog.html.
Comment: Rebuttal to Criticism of the Senate’s Filibuster Rule
Two Republicans have offered a rebuttal to criticism of the U.S. Senate’s filibuster rule. They contend that the current Democratic Majority Leader in the Senate, Harry Reid, repeatedly has adopted the tactic of preventing or restricting possible amendments to bills that are brought to the floor followed by motions to close debate that fail because they do not have at least 60 votes. This is done, the authors argue, to make the Republicans look bad by preventing votes on the merits and to protect Democratic Senators from having to vote on difficult issues at inconvenient times.
Reardon & Ueland, The Surprising Truth about Senate Obstructionism, W.S. J. (June 4, 2012), http://online.wsj.com/article/SB10001424052702304707604577424491399594250.html?mod=WSJ_Opinion_LEFTTopOpinion.
Comment: Response to Republican Defense of Senate Filibuster Rule
Robert Reich, the Chairman of Common Cause, has responded to the article by Republicans Reardon and Uleland that the Common Cause lawsuit challenging the constitutionality of the Senate’s filibuster rule was just a publicity stunt because the Constitution says each house of Congress shall establish its own rules.
Reich asserts that the Supreme Court over 100 years ago, in United States v. Ballin, stated that while each house can write its own rules, “[i]t may not by its rules ignore constitutional restraints or violate fundamental rights.”
Reich, The Senate’s Rules Should Further Debate, W.D.J. (June 7, 2012), http://online.wsj.com/article/SB10001424052702303918204577448622524745072.html?mod=WSJ_Opinion_MIDDLEThirdBucket.
Comment: Another Plea for Changing the Senate Filibuster Rule # 261D—9/28/12
Matt Miller has pleaded for a presidential debate moderator to ask the presidential candidates “if they are in favor of restoring majority rule in this country. In other words, ask them if they would urge the Senate to scrap the filibuster — and if not, how do they expect to get anything done?”
He says, and I agree, “if we don’t scrap the filibuster, we simply can’t govern this country and meet the challenges of the 21st century.” (Emphasis in original.)
Miller is a senior fellow at the Center for American Progress Action Fund, “an independent nonpartisan education and advocacy organization dedicated to improving the lives of Americans through ideas and action.” It is “creating a long-term, progressive vision for America—a vision that policymakers, thought-leaders, and activists can use to shape the national debate and pass laws that make a difference.” The Fund’s “mission is to transform progressive ideas into policy through rapid response communications, legislative action, grassroots organizing and advocacy, and partnerships with other progressive leaders throughout the country and the world.”
Miller, It’s the filibuster, stupid!, Wash. Post (Sept. 27, 2012), http://www.washingtonpost.com/opinions/matt-miller-its-the-filibuster-stupid/2012/09/27/53a5f9ba-082f-11e2-a10c-fa5a255a9258_print.html; Center for American Progress Action Fund, About Us, http://www.americanprogressaction.org; Center for American Progress Action Fund, Matt Miller, http://www.americanprogressaction.org/about/staff/miller-matt/bio.