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Defending the Filibuster

The Soul of the Senate

Richard A. Arenberg and Robert B. Dove. Foreword by Senator Mark Udall and Senator Ted Kaufman

Publication Year: 2012

Recent legislative battles over healthcare reform, the federal budget, and other prominent issues have given rise to widespread demands for the abolition or reform of the filibuster in the US Senate. Critics argue that members' traditional rights of unlimited debate and amendment have led to paralyzing requirements for supermajorities and destructive parliamentary tactics such as "secret holds." In Defending the Filibuster, a veteran Senate aide and a former Senate Parliamentarian maintain that the filibuster is fundamental to the character of the Senate. They contend that the filibuster protects the rights of the minority in American politics, assures stability and deliberation in government, and helps to preserve constitutional principles of checks and balances and separation of powers. Richard A. Arenberg and Robert B. Dove provide an instructive historical overview of the development of Senate rules, define and describe related procedures and tactics, examine cases related to specific pieces of legislation, and consider current proposals to end the filibuster or enact other reforms. Arguing passionately in favor of retaining the filibuster, they offer a stimulating assessment of the issues surrounding current debates on this contentious issue.

Published by: Indiana University Press

Title Page, Copyright, Dedication

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Foreword

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pp. ix-xii

As two U.S. senators who served during the 111th Congress, we often encountered the perception that the 2009–2010 Senate was a dysfunctional body. As we traveled in our home states and across the country, voters, commentators, pundits, and academics all lamented governmental...

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Preface

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pp. xiii-xviii

We had met on several prior occasions, beginning in the 1970s. Bob Dove began in the Senate as an assistant parliamentarian in 1965. He would go on to become the Senate parliamentarian in 1981. Rich Arenberg came to Capitol Hill with Paul Tsongas, who was part of the new...

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1. Soul of the Senate

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pp. 1-9

Headlines in recent years scream out: “Senate’s Abuse of Filibuster Rule Threatens Democracy,” “A Dangerous Dysfunction,” “Filibuster Abuse: Founding Fathers Didn’t Plan It This Way,” “Filibuster, Gone Rogue: A Senate Rule That Cripples Our Democracy,” and a Harvard Crimson op-ed...

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2. Filibuster, Cloture, and Unfettered Amendment

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pp. 10-18

The tactical use of rules to obstruct the plans of legislative majorities is as old as legislatures themselves. Plutarch told of a request of ancient Rome’s senate by Julius Caesar: “He applied to the Senate for permission to stand [as a] candidate [for consul].” Cato strongly opposed the...

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3. History of the Filibuster

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pp. 19-27

The very first Senate rules adopted in 1789 provided for a previous question motion. Today we understand such motions as requiring an end to debate and an immediate vote on the pending matter. Most legislative bodies have such a motion in their rules. In the House of Representatives...

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4. Polarized Politics and the Use and Abuse of the Filibuster

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pp. 28-50

FDR biographer Jean Edward Smith, writing in the New York Times in 2009, put his finger on the crux of the dilemma facing the Senate when he wrote, “a worrisome new feature in American politics [is] the trivialization of the filibuster in the Senate. A simple majority vote no longer...

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5. Criticisms of the Filibuster

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pp. 51-65

In an effort to understand the highly partisan polarized Senate of the current era, scholars in the academic community who have focused most directly on the filibuster have tended to view it as a form of obstructionism, undemocratic, perhaps even unconstitutional, and/or, at...

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6. The Dangers of Overzealous Reform

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pp. 66-84

It’s a simple idea—majority rule. It’s the answer to tyranny. A government of the people, by the people, and for the people. Democracy begins with the idea of majority rule. But the Founders understood that danger lurks among overzealous majorities. James Madison wrote, “There is no...

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7. Related Tactics: Holds

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pp. 85-95

The Senate can tie itself in knots without resorting to a filibuster. Filibusters represent only one of the ways that the right to unlimited debate can impact the functioning of the Senate. Because debate can be difficult to bring to a close, other related tactics such as the “hold” can have...

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8. Related Tactics: Filling the Amendment Tree

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pp. 96-108

“Filling the amendment tree” is the colloquial way of describing the situation in which all amendments to a piece of legislation that are possible at a given time under the Senate rules have been offered and are pending. The name comes from the diagrams that Senate Parliamentarian Floyd...

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9. Circumventing the Filibuster: Reconciliation

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pp. 109-116

Senator Lindsey Graham (R-SC) made a brief effort in March 2010 to resurrect the “Gang of 14” senators. This time the tactic to be averted was the use of the budget reconciliation process to enact President Obama’s health reform bill with a simple majority vote of fifty-one senators...

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10. Reforming the Filibuster: The Constitutional Option

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pp. 117-134

The U.S. Senate is a continuing body, meaning that from the seating of the first Senate to the present, and despite election turnover and annual recesses, it has been a single, continuous legislative body. The Constitution establishes a rotation of Senate terms that ensures that in most...

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11. Reforming the Filibuster: The Nuclear Option

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pp. 135-141

In 2005, the Senate faced and narrowly avoided a major crisis over the use of the filibuster. The Senate Democratic minority was blocking final votes on the confirmation of seven of President George W. Bush’s nominees to the federal circuit court of appeals. In response, Majority Leader...

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12. Bring in the Cots

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pp. 142-152

Many critics of the Senate majority leadership decry their unwillingness to break the backs of the filibusterers as was done with the “old-fashioned” filibusters. Such wars of attrition on the Senate floor with senators reading from the phonebook and sleeping on cots in the cloakrooms...

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13. Defending the Filibuster

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pp. 153-177

At important moments in the Senate’s history majorities have complained about the filibuster. In the 111th Congress (2009–2010), great frustration was generated by the inability of the large Democratic majorities in the Congress and the newly elected Democratic president in...

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Epilogue

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pp. 178-191

As the new year dawned, the opening salvos of the 2011 filibuster reform battle were fired in the Washington Post, the New York Times, the Boston Globe, and other newspapers across the country. Senator Tom Udall (D-NM), writing in the Washington Post, declared the Senate dysfunctional...

Appendix A

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pp. 193-197

Appendix B

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pp. 198-202

Notes

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pp. 203-230

Selected Bibliography

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pp. 231-247

Index

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pp. 249-261

About the Authors

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pp. 263-


E-ISBN-13: 9780253006981
Print-ISBN-13: 9780253001917

Page Count: 288
Publication Year: 2012