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

1. Soul of the Senate

Soul of the Senate Headlines in recent years scream out: “Senate’s Abuse of Filibuster Rule Threatens Democracy,”1 “A Dangerous Dysfunction,”2 “Filibuster Abuse: Founding Fathers Didn’t Plan It This Way,”3 “Filibuster, Gone Rogue: A Senate Rule That Cripples Our Democracy,”4 and a Harvard Crimson op-ed proclaims, “Tyranny of the Minority.”5 The 2009–2010 Republican filibuster of the healthcare reform proposals of President Obama and the congressional Democrats and the struggles to reach the 60-vote supermajority necessary to overcome this tactic moved the filibuster and associated Senate parliamentary maneuvers again to center stage. As has occurred from time to time in the Senate’s history, frustrated majorities and their constituencies, as well as observers in academia, the media, and the Congress itself, have demanded the elimination of “unlimited debate” in the Senate. Lawyer Thomas Geoghegan in a New York Times op-ed fumed, “The Senate, as it now operates, really has become unconstitutional.” He declared that the filibuster is “a revision of Article I itself; not used to cut off debate, but to decide in effect whether to enact a law.”6 Lloyd Cutler, who was White House counsel under both President Jimmy Carter and President Bill Clinton, asserted “a strong argument can be made that one ★ ★ ★ 2 · Defending the Filibuster its requirements of 60 votes to cut off debate and a two-thirds vote to amend the rules are both unconstitutional.”7 And the New York Times, in a 1995 editorial, called it “an archaic rule that frustrates democracy and serves no useful purpose.”8 The leader of the U.S. House of Representatives, Speaker Nancy Pelosi (D-CA), in a July 2010 interview with the Huffington Post, attacked the Senate filibuster as “the 60-vote stranglehold on the future.” She demanded, “The Senate has to go to 51 votes, and not 60 votes . . . Getting from where the nation is, to a sustainable place would require doing away with the filibuster.” She continued, “It’s very doable. It’s just a decision. And one of the decisions that has to be made is that the Senate has to go to 51 votes and not 60 votes. Otherwise, we are totally at their mercy.”9 In the Senate itself, young senators in their first term like Tom Udall (D-NM),Jeff Merkley(D-OR),andMarkUdall(D-CO)beganworkingseriously on filibuster reform. Veteran senator Tom Harkin (D-IA) dusted off a proposal he offered in 1995 to more or less sweep the filibuster away and began pressing for its consideration once again. There can be little argument but that the right to filibuster in the Senateisbeingabused .Ithasbeenbybothparties.Ithasbecomethefashion in the public media, academia, and in some quarters of the Congress itself to view the filibuster as strictly a tactic of obstruction and as an affront to majority rule. Nearly forgotten or simply dismissed is the role thatextendeddebatehasplayedingivingvoicetominorities,protecting the moderating role of the Senate and the Senate’s place as the intended counterweight to an otherwise unchecked executive. In these times of extreme partisan polarization, this role is more, not less, important. The Senate as “Cooling Saucer” Amusingly, it sometimes seems as though no one on any side of the issue can explain or analyze the filibuster without mentioning three figures —two Jeffersons and a Washington. Nearly all descriptions of the practicereferencetheprobablyapocryphalstoryof GeorgeWashington explaining to Thomas Jefferson, just back from France, that the Senate Soul of the Senate · 3 was included in the federal design to serve the same function as the saucer into which he poured his hot tea to cool.10 The Senate’s smaller size, longer terms, and state-wide constituencies all predispose it to be a more moderate, measured body than the House of Representatives, less impacted by the shifting winds of public opinion.Thefilibuster,althoughnotcreatedbytheFramersthemselves, grew out of the independent precedents and procedures evident in the Senatefromtheoutset,whichthemselvesgrewoutof theconstitutional design for the Senate. For example, the very first Senate assured that its presiding officer, the vice president of the United States, would be weak in contrast to the powers of the presiding officer of the House, the Speaker. At least as often when the filibuster is discussed, it is not Thomas Jefferson who is invoked, but Jefferson Smith, the fictional senator played by the great Jimmy Stewart in his romantic portrayal of the filibuster in the 1939 film Mr. Smith Goes to Washington. In that film, the...