The Senate’s famous filibuster, now on the brink of elimination, should be both revived and limited by listening to Democrats on how to reform it.
Not today’s Democrats, of course. The best filibuster reform proposal is a variant of the one proposed in 1995 by moderate Joe Lieberman of Connecticut and liberal firebrand Tom Harkin of Iowa.
To encourage real debate, and to preserve minority-party prerogatives without letting the minority permanently block the majority’s will, Lieberman and Harkin proposed that the number of senators necessary to sustain a filibuster be required to rise with each cloture vote. Or, put another way, that the number needed to end the filibuster drop with each attempt.
So while the current 60-vote supermajority would be required to close debate on the first attempt, just 57 votes would be required on the next attempt at least two days later, and then 54, and then just 51.
In short, on the fourth attempt to invoke cloture and thus move towards an up-or-down vote, a mere majority would prevail.
This system would ensure that a significant minority could draw public attention to an important matter and enjoy extended time to make its arguments thereon – hoping to rally public support and thus attract more Senate colleagues to its side – but not block a bill or nomination forever.
I wouldn’t take it as far as Lieberman and Harkin. I’d preserve a semblance of minority power by requiring at least 52 percent of the Senate to invoke cloture on the fourth attempt. Let’s also insist that the minority actually be provided debate time between cloture votes, and that such time be allowed during normal waking hours. The minority should have every chance to make its case in a way most likely to garner public attention to significant, thoughtful debate.
But it should not be able to permanently defeat something that can clear both a 52-vote hurdle in its own chamber and a majority in the House of Representatives.
The Lieberman-Harkin proposal should be joined with suggestions made by Rep. Tom McClintock, R-Calif. Among them: Debate must again be required to be germane to the subject at hand; the ability for a minority to block the start of debate (a “motion to proceed”) should be eliminated, and some sort of time limit or number-of-speeches limit should be imposed on each senator after the first failed cloture.
The point is to restore the group filibuster (individual-marathon filibusters wouldn’t be affected, at least not until after the first cloture vote) to something close to its original, ideal purpose: promoting ample, fair debate, with the minority given a chance to use the debate not just for obstruction but to actually attempt persuasion.
This would revivify the Senate as a deliberative body – but not an obstructionist one.
The obstruction is particularly offensive if applied to judicial nominees – which is still possible for Supreme Court nominees, although not for lower courts. Unlike on ordinary legislation, and unlike on executive-branch nominations, a permanent filibuster of a would-be judge has the effect of holding hostage a third branch of government to a dispute between the two other branches.
When that third branch is designed, at least in theory, to operate as independently of partisan politics as possible, the heavy politicization endemic to the filibuster is an affront to the constitutional spirit.
Why should just two-fifths of one-half of a single branch be able to override a majority and the prerogative of the executive, in order to hold hostage an appointee to the third branch?
America’s founders expected the House of Representatives to be more quarrelsome, more passionate, more raw than the Senate. They intended the Senate to be more dignified – or, as James Madison wrote in Federalist 62, “truly respectable.” The current abusive use of the filibuster and the sometimes abusive reactions to it have instead made the entire Senate appear not just undignified but petulant.
The Lieberman-Harkin reform, slightly modified, would encourage a return to the Madisonian vision, would allow Congress to work more efficiently without trampling a minority’s voice, and would garner more respect for the process by a public accustomed to majority rule. It would be orderly, rational, fair – and eminently respectable.
Quin Hillyer is a former associate editorial page editor of the Washington Examiner. If you would like to write an op-ed for the Washington Examiner, please read our guidelines on submissions here.
