Washington Post Editorial Admits U.S. Senate Filibuster Rule Is Broken and Needs Fixing, But Not by Simple Majority Vote

An editorial in the Washington Post admits that the Senate’s filibuster rule is broken and needs revision, that the Republican Senators have been abusing the rule, that the proposed changes by Senator Harry Reid are “rather restrained; if anything, they would go not far enough” and that the Republican opposition to these changes is “overblown.”

Nevertheless, the Post declares that “using the nuclear option [adoption by a simple majority vote] is the wrong way to achieve these changes.” Instead, the editorial urges Reid “to try, again, to negotiate. Surely the two leaders could craft a set of bipartisan rules changes that would ease gridlock while being tolerable to whatever side, in a future Congress, finds itself in the minority.”

Sorry, Washington Post, I am not persuaded. There is no indication that the Senate Republicans are willing to even discuss Reid’s “rather restrained” proposals. If they want to negotiate the changes, they could initiate such discussions by simply calling Senator Reid and asking to do so and by making any counter-proposal they wish. Given the “overblown” Republican rhetoric about the “rather restrained” Democratic proposals, it is ridiculous to urge such negotiations.

The Post does not even discuss the constitutional basis for adopting the rules by a simple majority vote. Under Article I, Section 5(1) of the U.S. Constitution, a majority of the Senate “shall constitute a Quorum to do Business.”  Under  Article I, Section 5(2) of the Constitution the Senate has the power  to “determine the Rules of its Proceedings.” (Emphasis added.) This necessarily means that the Senate may establish such rules by a simple majority vote.

Furthermore, to achieve reform of the filibuster rule under the existing Senate rules would require all 53 Democratic and the 2 Independent Senators plus 12 Republican Senators to vote for the change. No one has suggested that is even remotely possible.  As a result, the approach advocated by this editorial would leave the Senate with what the Post admits is a broken filibuster rule that needs revision.

In the same issue of the Post is an article by one of its regular columnists, Katrina vander Heuvel, contradicting the editorial and calling for adoption of filibuster reform by a simple majority vote.

Vander Heuvel also points out the work of a broad coalition of public supporters for such reform under the name “Fix the Senate Now.” Organized by the Alliance for Justice, the Brennan Center at New York University, the Communications Workers of America, Common Cause, the Sierra Club and the United Auto Workers, this coalition in December 2010-January 2011 organized over 40,000 calls to Senate offices, more than 100,000 petitions and many editorials in support of such reform. Its website has many useful resources.

Finally the Senate Republicans abuse of the filibuster this session has not yet ended. Last week the Republican Senate Steering Committee sent a letter to all Republican Senators that it would not grant unanimous consent to passing bills this month if they were not first sent to the Committee by December 18th.

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dwkcommentaries

As a retired lawyer and adjunct law professor, Duane W. Krohnke has developed strong interests in U.S. and international law, politics and history. He also is a Christian and an active member of Minneapolis’ Westminster Presbyterian Church. His blog draws from these and other interests. He delights in the writing freedom of blogging that does not follow a preordained logical structure. The ex post facto logical organization of the posts and comments is set forth in the continually being revised “List of Posts and Comments–Topical” in the Pages section on the right side of the blog.

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