Real Senate filibuster reform needed

Published on January 4, 2013

By Frank Knapp, Jr. | The Hill’s Congress Blog


This is the term that almost everyone has used to describe the 112th Congress even after the New Year’s Day passage of the “fiscal cliff” legislation to responsibly address some pressing taxation issues. However, the public and media understand that this final bi-partisan act was only a temporary pause from Congress’s dysfunctional ways.

Much of this problem lies with the voters rewarding extreme partisanship over cooperative problem solving and Congress making policy decisions that guarantee later stalemates.

However, there is one self-inflicted structural problem in the U.S. Senate that magnifies both these electorate and policy decisions — the filibuster.

Except for rare occasions, the Senate is ruled by the minority. With 60 votes needed to end a filibuster that can essentially be “called-in” by the minority, the American public is being deprived.

There is no transparency or accountability under today’s Senate filibuster rules. Consequently, we have had an abusive and undemocratic use of filibusters in recent years at every step in the legislative process. The Senate has become frozen in its ability to address the nation’s problems, especially when it comes to promoting a healthy economy. That is why many business organizations like the American Sustainable Business Council, a national coalition of business organizations that together represent over 150,000 small and medium businesses, strongly supports filibuster reform.

With the new 113th Congress there is an effort underway in the Senate to putfilibuster reform on the agenda for January 22 in an effort to create a morefunctional chamber. Two competing proposals are being offered but only one doesthe job.

Democratic Senators led by Jeff Merkley and Tom Udall have proposed afilibuster reform package that does not eliminate the filibuster or evendecrease the number of votes needed for cloture. But it would require “talking filibusters”. No more simply phoning in an objection to a bill thus requiring an almost unattainable 60-vote supermajority of Senators to end debate, a debate that actually never takes place.

This “lazy filibuster” would end with a “talking filibuster” rule in which the Senators objecting must hold the floor and actually debate continuously as thedefinition of a filibuster indicates. If no filibuster supporter is talking, a majority of Senators present can vote to end the debate and move forward on the bill.

Recently Senator Udall indicated that Senate Majority Leader Harry Reid had 51 votes to make this change using the “Constitutional option”. Requiring only amajority of Senators to change rules at the beginning of a new session has been both upheld by the Supreme Court and used by previous Senates.

However, the “Constitutional option” raises a concern with some Senators whobelieve that it would make bi-partisanship even worse and that it doesn’t protect the minority’s ability to impact legislation. Thus a counter proposalhas been offered by Senators John McCain and Carl Levin, who suggest using atemporary “Standing Order” to make slight changes to filibuster rules. Unfortunately, the changes offered do virtually nothing to stop filibusters onbills when the minority leader determines that a dysfunctional Senate better suits the minority’s cause.

Today’s Senate filibuster rules must be changed. Instead of creating a more toxic atmosphere in the Senate, a “talking filibuster” might encourage morebi-partisan cooperation on bills and improve the productivity of the chamber. Such a rules change will create a more functioning and efficient Senate that will return it to its rightful position of influence in the legislative process.

The “talking filibuster” will still protect the minority’s opinion. And legislative dissenters will still be able to voice their opinion to House,president and Supreme Court. And if all this fails the minority, there will be the next election. This is actually how our democratic system was meant to be.

Elections do have consequences. But when those consequential actions are hidden from voters and the public is denied the right to see their elected leaders inaction in order to hold them accountable, then we perpetuate the public’s voting decisions that feed dysfunctional elected bodies?

Knapp is vice chairman of the American Sustainable Business Council Action Fund.

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