On Wednesday, April 17, the Senate voted down gun background check legislation. This was defeated with 54 ayes and 46 nays. What? Defeated with a majority? You bet, thanks to the filibuster, which requires a 60-vote supermajority before legislation can move forward.
Slate.com’s Dave Weigel put the blame directly on the Democrats’ shoulders for a variety of reasons. He makes a good case, but the filibuster remains the major culprit. Even if the Democrats who voted no had voted yes, they would’ve still been one vote shy of the 60-vote threshold.
The filibuster has been a handy little procedure for senators of both parties to use when in the minority. However, the GOP senators have escalated its use to a whole new level of obstruction. Here is a little history:
- 107th Congress (2001 – 2002, Dem minority)— 71 cloture motions filed:
- 108th Congress (2003 – 2004, Dem minority)—62
- 109th Congress (2005 – 2006, Dem minority)—68
- 110th Congress (2007 – 2008, GOP minority)—139
- 111th Congress (2009 – 2010, GOP minority)—137
- 112th Congress (2011 – 2012, GOP minority)—115
- 113th Congress (2013 – 2014, GOP minority)—11
A filibuster is an attempt to extend debate on a proposal in order to delay or completely prevent a vote on its passage. If cloture (a 60-vote supermajority) is not attained, the legislation will not receive an up or down vote. Historically, the filibuster was used in limited circumstances such as to override a presidential veto, expel a member from the Senate, or convict a federal officer of a federal offense.
Furthermore, the filibuster was a talking one. Jimmy Stewart’s character filibustered, quite dramatically, in the 1939 film, Mr. Smith Goes to Washington. In March, Senator Rand Paul (R-KY) held a talking filibuster, which hadn’t happened since Senator Bernie Sanders (I-VT) took to the floor in December 2010 to protest a tax law. Today, talking filibusters are rare.
If legislation is going to be held up, then the senator(s) doing the blocking should stand before their colleagues and the American public to argue their point rather than merely stating their intent to filibuster. No pain is associated with obstruction nowadays; it is far too easy.
The Brennan Center for Justice’s 2010 Filibuster Abuse report provides a thorough accounting of how this procedure contributes to Senate dysfunction, compromises the system of checks and balances, and degrades transparency and accountability in government. The report highlights the fact that “Senate procedures have increasingly been used to prevent decision-making rather than to promote deliberation and debate.”
In 2012, the Brennan Center for Justice released a follow-up report, Curbing Filibuster Abuse. The authors found as of October 2012:
- The 112th Congress had enacted 196 public laws, the lowest output of any Congress since at least World War II;
- Senate passed a record-low 2.8 percent of bills in that chamber;
- Cloture motions have skyrocketed since 2006;
- On average, it took 188 days to confirm a judicial nominee, creating 33 “judicial emergencies.”
The authors state that rules reform is a must and suggest some “minimal, commonsense reforms:”
- There should be only one opportunity to filibuster any given measure or nomination;
- Senate rules should require at least 40 votes to sustain a filibuster as opposed to requiring a supermajority to break a filibuster, and senators should be required to remain on the floor and debate, as in the past;
- Safeguards should be put in place to ensure members of the minority can offer amendments.
There have been attempts to reform, if not eliminate, the filibuster, even as recently as January. Reform is difficult. One reason is that the filibuster allows the minority in the Senate to have some say over and to slow down legislation. Therefore, even though Democrats have had a majority in that chamber, seven years now, many of them don’t want to change or eliminate it because they fear finding themselves in the minority again and when that happens, will want the option to filibuster.
The filibuster serves a purpose, and should be maintained on a limited basis, used for very specific circumstances as enumerated previously. However, filibustering has become a means for the minority to override or disrupt any legislation the majority tries to pass and hold up political appointments. This is wrong. Elections matter and when the minority dictates what the majority does, that is a problem for our democracy, especially when those filibustering have no desire to compromise and negotiate. It’s their way or no way. They become obstructionists and policymaking in this country grinds to a halt. Any legislation or political appointment, no matter how benign, is nearly impossible to enact or approve.
The filibuster’s accomplice is often the secret hold. The 2007 Honest Leadership and Open Government Act should’ve halted the secrecy component of holds. However, since no enforcement mechanism was included, it has largely been ignored. There is no reason a legislator should not be held to account for why she/he is holding up legislation. Transparency is crucial to democracy. If a senator is going to stop a bill or political appointment, we the people have every right to know who it is and why they are doing it, whether we agree with them or not.
Until our legislators have the guts to make some simple changes to Senate rules, government impotence at the federal level will continue. That does not bode well for the health, security, and growth of our country. Filibuster reform is a must.
Cross-posted at The Feisty Liberal
Read the Brennan Center for Justice reports: