January 7, 2011

A plan to mend filibuster, not end it

Many Americans remember Jimmy Stewart in “Mr. Smith Goes to Washington,” standing at his desk on the Senate floor, mounting a filibuster — reading from the Declaration of Independence, the Constitution and the Bible.

“Democracy’s finest show,” Frank Capra has one character say, “the right to talk your head off … the American privilege of free speech in its most dramatic form … one lone and single American holding the greatest floor in the land … bleary-eyed, voice gone.”

Americans today look at a filibuster on C-SPAN, and what do they see? A quorum call droning on. No senator there, nothing happening. That should not be, and we should take steps now to crack down on the abuse of the modern filibuster in the Senate.

But first, let’s look at how we got here. A senator alone has recourse to the Senate floor, and, if properly recognized, he can talk himself to exhaustion — as Stewart did when he played Sen. Jefferson Smith. If it is the minority party, not an individual senator, that wants to obstruct or delay, an additional array of procedural mechanisms is at its disposal.

To defend against those mechanisms, the majority leader is eventually obliged to file “cloture” for a vote — invoking a rule that allows debate to end and amendments to be limited. That triggers a 30-hour period for debate — but no requirement that any senator actually debate as the 30 hours runs down.

The only practical requirement for the filibustering party is that a member be available on the floor to object to any motion to proceed to the vote and to put the Senate back into a quorum call. Thus, tedious quorum calls — the way the Senate kills time — have become the signature feature of the modern filibuster.

In the old days, senators filibustered bills they hated. Now, the minority filibusters bills their members like. Why? Because the 30-hour periods that run every time a cloture petition has to be filed, repeated over and over, eat up the time of the Senate.

Time is irreplaceable — and burning it up this way hampers the majority’s ability to legislate. This is the novelty of the use of the filibuster in the past two years. The filibuster isn’t new. But using it against everything to burn Senate floor time, is new in today’s Senate.

In fact, Democrats have been forced to break 275 Republican filibusters in the past two Congresses, according to a recent New York Times report, by far the most in congressional history.

This also helps explain the double filibuster, in which the minority party not only filibusters a bill, but filibusters the parliamentary motion to proceed to the bill as well. Filibustering both burns two 30-hour periods, wasting twice as much time.

We in the Senate appear to have an opportunity this month to change the Senate rules. Two rules changes, in particular, would help.

First, we can end the double filibuster — of the parliamentary motion to proceed to the bill, as well as the bill itself. There’s no reason to allow both.

Second, we can proceed to a vote as soon as actual debate ends and stop the 30-hour period for “debate” being burned up in tedious, meaningless quorum calls.

With these changes, there would still be filibusters, but they would more likely be on the merits of legislation, not a way just to burn the Senate’s time. And they would not be silent.

By: Sheldon Whitehouse