Defending the Filibuster, Revised and Updated Edition: The Soul of the Senate

13. Defending the Filibuster

Defending the Filibuster 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 the White House to enact their ambitious political agenda as quickly and efficiently as they would like. This was further fueled by abuse of the Senate rules by the Senate’s minority, seemingly at times for the sole purpose of obstruction for its own sake, and exacerbated by lonewolf filibusters like that of Senator Jim Bunning (R-KY) when he used the rules to block the broadly supported extension of unemployment benefits.1 Theeventualuseof thebudgetreconciliationprocesstoassure the enactment of health reform and avoid a filibuster may, in the end, havedefusedsomeof theangeramongDemocrats,whilesparkinganger among many in the minority. Some Democrats have begun to press for wholesale changes in Rule XXII, much as liberal Democrats did in reaction to the almost yearly filibusters of the 1950s and 1960s against civil rights legislation.2 Whenmajoritieshavethestrongsupport of publicopinion,theymay be overzealous in their demand for rash action. The Founders feared thirteen ★ ★ ★ 154 · Defending the Filibuster majorities that moved too quickly. The supermajority requirements imposedbytheSenaterulesforthemostcontroversialissuesprovideause ful test of when a majority may be overzealous. Perhaps an even greater concern is that legislative majorities might not even reflect public opinion and, without sufficient examination, might be able to force action. The Character of the Senate The Senate, true to its own nature, has sought moderation and compromise . The filibuster itself has played a central role in fostering this character of the Senate and it has come to the fore each time the Senate has addressedchangestoRuleXXII.TheSenatehasformorethan200years protected unlimited or extended debate. It is clear that the Founders fearedoverzealousmajorityruleandwantedthepassageof legislationto be difficult. The House was designed to reflect the majority will, but the Senateinourbicamerallegislativebranchwasformedto,inthosewords attributed to George Washington, “cool the hot tea” coming to it from theHouse.TheSenatehasservedtheroleintendedbytheFounderswell. While those Founders never contemplated the debate rules within the Senate, in the Constitution they provided the Senate with the right and obligation to write its own rules. Those rules, informed by the design of the Framers of the Constitution, after more than 200 years of molding , are no accident. Again and again, over its history, whenever the principle of supermajority requirements to end debate in the Senate has beenassaulted,theSenatehasbackedawayfromadoptingsimplemajority cloture. In fact, even in 1917, a number of the senators in both parties who supported the original adoption of the cloture rule in the Senate, Rule XXII, expressed their fears of rampant reform taken too far.3 Where You Sit Is Where You Stand For many, perhaps most, senators, their position is situational. Senators in the majority are perplexed by the delay and by the difficulty of carrying out their agenda in pursuit of what they may view as their mandate fromthevoters.SenatorsintheminorityseetheSenate’srulesasthelast Defending the Filibuster · 155 protection against imprudent action—an essential part of the checks and balances built into our system of government. These views, on both sides, are enhanced when government is “unified”—that is, both the Congress and the White House are controlled by the same party. When the majority shifts from one party to the other, the views about the filibuster tend to be exchanged along with the gavel. In the early 1990s, with President Bill Clinton in the White House and Democrats controlling both houses of Congress, many Democrats railed against the supermajority requirements of Rule XXII, while Republicans defended it. When Republican majorities swept in on the waveof the1994“Gingrichrevolution”election,theroleswerereversed. Democratsembracedthefilibusterasadefenseagainstwhattheyviewed as the extreme elements of the “Contract with America,” an ambitious andaggressivelegislativeagendaonwhichRepublicansacrossthecountry had run. And in the 2003–2005 battle over President Bush’s judicial nominations, Republicans, as mentioned earlier, contemplated sweeping the filibuster away as a tactic to end the Democratic filibusters. The showdown was averted by a group of seven centrist senators from each party—the “Gang of 14.” As the debate over health reform heated up in the 111th Congress, with Democrats back in the majority once more, many in both caucuses swapped sides. For example, Senator Richard Durbin (D-IL), a Democraticleader,theSenateminoritywhipduringthe2005battleover judicial nominations, said in response to the “Gang of 14” compromise that saved the filibuster but led to confirmation of several of the Bush nominees, “These judges were bitter medicine, but I believe the Senate andourcaucusisbetterforit.Wepreservedtherightof extendeddebate and filibuster, and when...