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

Foreword

For ewor d Senator Mark Udall and Senator Ted Kaufman 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 “gridlock,” laying most of the blame on the Senate’s rules—in particular the “filibuster,” which requires a 60-vote supermajority to overcome even a single member’s objection to consideration of a bill, nomination, or final vote. At a time when many Americans are casting doubt on the viability of their institutions of government, it’s easy to dismiss the Senate as “broken.” In recent years, senators used the filibuster to block considerationof virtuallyeverybill,executiveappointee,andjudicialnomination . While the filibuster has helped define the Senate through history, statistics show that in the past 2 years, senators used the filibuster more often than any time previously. The famed institution—already known as the “world’s greatest deliberative body”—appeared to have become perpetually tied in knots with “debate over the debate.” Yet, it would be inaccurate to say that the filibuster prevented the Senate from passing meaningful legislation. On the contrary: although x · Foreword it’s true that the filibuster made it incredibly difficult to get anything done,senatorsstillenactedlegislationatahistoricpaceduringthesame 2-year period. Starting with the American Recovery and ReconstructionAct ,the111thCongresspassedmajorpiecesof legislation,including health insurance reform, Wall Street reform, credit card reform, repeal of “Don’t Ask, Don’t Tell,” and ratification of the New START treaty. Whilemanyfederaljudicialnomineeslingeredinpoliticalpurgatoryfor months due to “holds,” many of those same nominees were confirmed unanimouslywhentheSenatefinallyheldanup-or-downvote.Eminent congressional scholars Tom Mann and Norm Ornstein deemed the legislative record of the 111th Congress greater than any recent Congress and on par with the historic Congresses resulting from the landslide elections of FDR in 1932 and LBJ in 1964. And so the arrival of Defending the Filibuster is particularly timely. Two extraordinarily well-qualified Senate veterans—Richard A. Arenberg and Robert B. Dove, who represent both parties and over 65 years of Senate experience—lead the reader through the hallways and back rooms of the Senate. They are uniquely qualified to explain the history of the Senate filibuster and more. By illuminating one of the basic principles undergirding the U.S. government since its founding, the co-authors provide a blueprint for how it should function in the twentyfirstcentury .Theyexplaintheformandfunctionof theSenatefilibuster and why it is required if we wish to maintain our stable and secure form of government. They also show how it has been distorted over the years and what should be done to put it back on course. Oneimportantlessonwelearnedfromthe111thCongressisthateven though the filibuster has been used more often recently—so much one could even argue it has been abused—it hasn’t prevented action; rather, ithasaccomplishedwhatitwasostensiblycreatedtodo:allowmeaningful debate. When crafting a bill, senators must consider opposition, and they must compromise to accommodate others’ interests and concerns in order to avoid a fight that stalls or even kills legislation. Thus, the filibuster encourages senators to work to find consensus whenever possible . Throughout history, that has been the case. For every important initiativethathasbeenblocked,delayed,orsquashedbytheuseorabuse Foreword · xi of the filibuster, there is an opponent who lauds its use to prevent an insidious change to the law. Take the Alaska National Interest Lands Conservation Act, which protects the Arctic National Wildlife Refuge (ANWR). The act was filibustered, yet eventually was signed into law. And while proponents of protecting ANWR might decry the use of the filibuster in that case, those same conservationists have also repeatedly used it to prevent oil drilling in ANWR. We agree with many of the criticisms raised by leaders of the filibuster reform movement; the Senate should deal with them in a constructive manner. But eroding the institution by drastically changing Senate rules is not necessary or wise. The recent agreement between Senate Majority Leader Harry Reid and Republican Minority Leader Mitch McConnell, which eliminates secret holds, limits procedural abuses, and decreases the number of government appointments requiring Senate confirmation, was an important step. However, if the Senate were to employ a majoritarian way of doing business and adopt new rules by a simple majority vote at the beginning of each new Congress—as was suggested during the 111th Congress by a frustrated faction of our colleagues —we fear that it would trigger major and destabilizing changes in the role...