As a number of pundits, such as John Nichols of The Nation are saying, we need to reform the filibuster system in the U.S. Senate. The idea advocated by Nichols and many others is to adopt the strategy used by Jimmy Stewart (lead character in “Mr. Smith Goes to Washington”) and require senators to actually stand at their desks and speak. In recent years, all that senators have had to do is to state that they want to engage in a filibuster and a bill cannot be voted upon until there are 60 votes available to end the filibuster.
In the current make-up of Congress, Democrats (along with Independents) have only 53 votes. In the coming Congress they will have 55. Since Republicans are recalcitrant about remaining unified, regardless of the merits of almost any bill, virtually no filibusters are stopped. The Republicans have to do no more than say they are filibustering a bill and they get all the benefits of doing so. If the Democrats become the minority, it is reasonable to expect that they would do the same thing under the present rules.
Historically, the filibuster existed as a protection against the silencing of the minority. Under the rules of the Senate, a member or group of members who did not have the votes to prevent approval of a piece of legislation could demand to be heard in opposition. Ideally, the traditional theory went, this avenue of dissent could prevent a rush to judgment.
But, in recent years, the filibuster has not been used to raise voices of dissent. Instead, it has been used to block votes on critical pieces of legislation, to make it harder for the president to advance even the most popular proposals and to undermine the basic premises of the principle of advice and consent.
Although the Democrats and Independents had 59 votes in the Senate from 2009-2010, they were generally unable to stop filibusters because (a) the obvious reason : 59 is one short of 60, and (b) some Democrats, such as Ben Nelson of Nebraska, often voted with the Republicans.
Senate, meet NFL
Adopting the “Jimmy Stewart Rule” seems to be an improved way to limit the damage that the filibuster does to the will of the majority. But borrowing a procedure from the National Football League might be far superior.
The NFL has a rule stating that the coach of each team is able to throw a red flag on the field twice a game. The red flag indicates that he wants to challenge the referee’s ruling on the field. The coaches have to be judicious about throwing the red flags, because if their appeal does not result in the decision being overturned, the coach’s team loses a time out, which can be crucial to managing the clock.
The key is that there is a limited to the number of challenges each team can have per game.
How it would work
Suppose that this was applied the number of filibusters the minority party could use in a session of Congress.
When Lyndon Johnson was Senate Majority Leader in the 1950s, Republicans engaged in only one filibuster. That’s right, one. Over the past six years, in which Harry Reid (D-NV) has been majority leader, Republicans have engaged in 386 filibusters. These filibusters are the primary reason why Congress has been in a state of gridlock ever since Barack Obama became president.
Suppose that the minority party was limited to ten filibusters (and “a hold,” – a topic for a future post) per year. The minority party would have to be extremely judicious about how they used their filibusters. Currently, they can use a filibuster for a wide expanse of legislation, ranging from the confirmation of judges or cabinet to funding an overseas military engagement. Frequently, Republicans have used the filibuster to stop important social welfare programs, such as food stamps, or extending unemployment benefits. In fact, they have often used it to block any effort to reach a budget accord aimed at reducing the national deficit through increased taxes and cuts in government expenditures.
Indeed, the filibuster is important to protect the rights of the minority party. Many of the issues that face the Congress are designed to protect minorities, whether they are in the field of civil and human rights, workers’ rights, women’s rights, LGBT rights, or other social issues. The Senate is often referred to as the deliberative house of Congress. It needs to remain that way. However, being deliberate is not the same as causing gridlock. With Democrats currently in the majority in the Senate, now is the time to reform the filibuster system. Senate rules allow one day, the first day of the new session in January, for changes to the rules. Maybe members of the Senate should spend their holidays watching NFL games so that they see the wisdom of putting limitations on the number of challenges.