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

Epilogue

Epilogue Asthenewyeardawned,theopeningsalvosof the 2011filibusterreform battle were fired in the Washington Post, the New York Times, the Boston Globe, and other newspapers across the country. Senator Tom Udall (DNM ), writing in the Washington Post, declared the Senate dysfunctional and“broken.”Heassertedthe“constitutionaloption,”maintainingthat “on the first day of the new session, the rules can be changed under a simple, rather than two-thirds, majority.”1 Senator Udall threw down the challenge to his colleagues, urging them to “recognize the obstruction that has prevented us from doing our jobs and join me in reforming Senate rules for the good of our country.”2 Inthe New York Times,formervicepresidentWalter“Fritz”Mondale, calling the Senate “arguably more dysfunctional than at any time in recent history,” called for use of the “constitutional option,” raising a familiar argument: “If changing Senate rules really required a two-thirds supermajority, it would effectively prevent a simple majority of any Senate from ever amending its own rules, which would be unconstitutional . . . The document is very explicit about the few instances where a supermajorityvoteisneeded —andchangingtheSenate’sproceduralrules ★ ★ ★ Epilogue · 179 is not among them. In all other instances it must be assumed that the Constitution requires only a majority vote.”3 Of course, this is the same Fritz Mondale who told senators less than a decade earlier that the Senate must protect the right of any individual senatorto“stopeverything”and“ripopenanissueinawaythatnoother institution in America can.”4 And, in 1993, he told a select Joint Committee on the Organization of Congress that eliminating the filibuster would be “a tragedy.”5 Senate Minority Leader Mitch McConnell (R-KY) fired back in the Washington Post: “Any rule change aimed at making it easier for one party to force legislation through the Senate with only a slim partisan majority would undermine the Senate’s unique role as a moderating influence and put a permanent end to bipartisanship.”6 TherankingRepublicanontheRulesCommittee,SenatorLamarAlexander (R-TN), speakingto theHeritage Foundation,declared,“Those who want to create a freight train running through the Senate today, as it does in the House, might think about whether they will want that freight train in two years when the freight train might be the Tea Party Express . . . The reform the Senate needs is a change in behavior, not a change in rules.”7 Earlier, late in the lame-duck session at the end of 2010, all of the Democratic senators who would be returning for the 112th Congress in January lit the fuse by writing a letter to Majority Leader Harry Reid (D-NV)callingforfilibusterreform.Theywrote:“Webelievethecurrent abuse of the rules by the minority threatens the ability of the Senate to do the necessary work of the nation, and we urge you to take steps to bring these abuses of our rules to an end.”8 The letter left the impression, at least with many outside of the Senate , that the Democratic caucus was unified. Some took it as an indication that Democrats might attempt the “constitutional option.” In reality, the unity was illusory. A number of competing packages of rules reforms were being proposed and there was no consensus on whether the simple majority “constitutional option” was appropriate. Many senators were keeping their “powder dry” on this point, unwilling to 180 · Defending the Filibuster commit without a caucus consensus on what specific changes might be made. Other senators, students of the Senate, knew that past filibuster reforms had come about through compromise under the simple threat of the creation of a “constitutional option” precedent. Some of these senators wanted to repeat that experience, but without actually using the stratagem. Meanwhile, the Senate leadership, Majority Leader Reid and Minority Leader McConnell, acting through Rules Committee Chairman Chuck Schumer (D-NY) and Ranking Republican Alexander, launched negotiationsaimedatfindingstepsinthedirectionof reformthatmight be taken on a bipartisan basis. On January 5, 2011, the Senate held its first session of the 112th Congress . This was the “first legislative day,” the day that proponents of the “constitutional option” insist is the special opportunity for the Senate to write its own rules. They maintain that on that day it can be accomplished by simple majority vote. The lead modern-day proponent, Senator Tom Udall, rose and told the Senate, “The constitutional option is our chance to fix rules that are being abused—rules that have encouraged obstruction like none ever seen before in this Chamber. Amending our rules will not, as some have contended, make the Senate no different than...