There has been a lot of discussion lately about how the Senate is not working properly. That is evident to even the casual observer. On the other hand, to understand how the Senate was intended to work and what has gone wrong requires some knowledge of the history and rules of the Senate. To many people, this subject no doubt seems arcane and confusing.
The simplistic explanation we get from the other side of the aisle in a steady drumbeat is that Republicans are filibustering everything willy-nilly thereby grinding the Senate to a halt. Various vague but nefarious motivations are suggested for why we would do such a thing, but the point they want Americans to take away is that Republicans are abusing the filibuster.
This message has been repeated ad nauseam by Democrats in the hope that it will sink into the public consciousness by rote. In fact, the story goes that Republicans have so abused the filibuster, that the Democrats have no choice but to take it away, even if it means violating the Senate rules in order to change the rules.
In order to discuss this topic, it is important to establish what we mean by a "filibuster" and how this fits into how the Senate operates. I hope you'll bear with me as we do so because I ultimately want to get down to how the proposed changes to Senate Rules threaten the very principles underlying our system of government.
But first, just what is a filibuster? We talk about it so much, that you would think it referred to a very specific activity understood by everyone. It can actually refer to several different activities. This is a source of confusion and that confusion is reflected in some of the speeches from colleagues on the other side of the aisle, intentionally or not. When most Americans think of the filibuster, they probably think of Jimmy Stewart in the classic film Mr. Smith Goes to Washington standing and talking without stopping for and extended period of time to delay proceedings and make a point. That is the classic understanding of a filibuster.
Unless all senators have agreed to waive the Senate rules, a senator who has been recognized to speak may retain the floor as long as he continues speaking. This is the basis in the Senate rules for a classic filibuster, but this is not the rule some Democrats want to change. When the members of the majority party complain about how many filibusters the Republicans have engaged in, they actually mean how many times the Senate has voted on a motion to bring debate to a close. This is called "cloture".
When debate comes to an end, it also means no more opportunity for amendments. If Republicans don't agree to end debate and force a final vote when the Majority Leader decides we should, he calls that a filibuster. In fact, even when every single Republican votes in favor of ending debate, he still calls it a filibuster. We just voted 93-0 to end debate on the Defense Bill. Is he going to call that a filibuster too?
How can he accuse Republicans of filibustering when he's the one who made the cloture motion? This is a key point. When the Democrats talk about Republicans launching a filibuster, it is important to note that it is Senate Majority Leader Reid who almost exclusively makes the motion to invoke cloture.
This means that the number the Majority Leader is so fond of quoting as the number of so-called Republican filibusters is really the number of times he has attempted to shut down debate and block further amendments from being considered. Again, we are talking about a process launched by the Majority Leader intended to shut off debate and amendments, not some process initiated by the Republicans.
If every time the Majority Leader made the motion to close debate, we had been considering a bill for days or weeks with dozens of amendments and no end in sight, then he might have a point. However, the recent history of Senate cloture votes tells another story. The Majority Leader has filed a motion to cut off debate on the same day a bill has been taken up over 220 times since he became majority leader.
How can he justify this? He certainly cannot claim that Republicans are delaying action with excessive debate when he moves to cut off debate before it has even really begun. As I said, by forcing a final vote, a cloture motion also ultimately cuts off amendments. The right of any senator to offer an amendment for consideration has been enshrined in the Senate rules from the very beginning. It's true that about half of the cloture votes I cited were on the motion to proceed to consider a bill, which is before the stage where amendments can be offered.
I'll say more on that later. However, the Majority Leader has moved to cut off debate and amendments on a measure other than the motion to proceed over 100 times. He can hardly claim that Republicans forced his hand by offering too many amendments when few if any amendments have even been considered when he attempts to cut them off. What's more, the Majority Leader has consistently used a tactic called "filling the tree" where he offers blocker amendments that block any other senator from offering their own amendment unless he agrees to set his blocker amendments aside. He is able to get in line first to put his blocker amendments in place because of a tradition that the Majority Leader has priority to be recognized by the presiding officer.
This doesn't appear anywhere in the Senate rules. In fact, the rules make clear that whatever senator seeks recognition first should be recognized and that any senator has a right to offer an amendment. This so called filling the tree tactic was relatively rare before Senator Reid became Majority Leader, but he has made it routine.
Technically some germane amendments can be considered during a short window after cloture has been invoked and before the final vote. But, using the blocker amendment tactic along with a motion to invoke cloture, he can block any senator from offering any amendment while shutting off debate. That means the Senate would take a final vote on a bill without a single amendment having been considered. The abuse of this tactic is at the heart of the Senate's current gridlock.
This is confirmed by a chart published with a recent New York Times article. Here is what the caption said, "The use of filibusters has risen since the 1970s, especially when Republicans have been in the Senate minority. But the most recent spike of Republican filibusters has coincided with the Democrats' unprecedented moves to limit amendments on the Senate floor."
This doesn't even tell the whole story because much of the time, the Senate Majority Leader doesn't have to actually use his amendment blocking tactic. He simply informs Republicans that he will block amendments, or refuses to commit to allow Republican amendments before making the motion to consider a bill. In this all too common scenario, the Majority Leader tells Republicans that he intends to move to consider a bill, and will immediately move to cut off debate on that motion. And by the way, if you do vote to take up this bill, you won't be allowed to offer any amendments.
You will have to take it or leave it. Why on earth would Republicans take that deal and vote for cloture on proceeding to a bill to which we are told we will be allowed no input? Just to be clear, some Democrats have proposed eliminating the filibuster entirely. Others have proposals to limit it in various ways. Majority Leader Reid wants to start by eliminating it on the motion to proceed. But, as we have seen, the real problem is the way Republicans have been blocked from participating in the process.
If we are looking to reform how the Senate operates, maybe we ought to start by considering doing away with the tradition that the Majority Leader can block amendments. That's something which is already contrary to the letter of the Senate rules. Again, there is no doubt that the Senate is not functioning properly. However, the complaints I hear from Iowans are not that the Senate is considering too many amendments and working too hard to make sure the legislation we pass is worded properly.
In fact, I hear the opposite. A great many Iowans have told me that they are not happy with legislation being rammed through Congress without their elected representatives even having an opportunity to read it. If members of Congress don't have a chance to read a bill, you can bet that the American public doesn't have a chance to understand it. I suppose that's fine if you believe that you should pass a bill first and let the American people find out what's in it later as former Speaker Pelosi once famously suggested. However, if you think as I do that we should be listening to those who elected us, you would have to conclude that a more deliberative process is needed.
The rules of the House allow for quick consideration of legislation, but the Senate is supposed to be different. When the Majority Leader says the Senate is not operating efficiently, he means we are not approving the legislation he wants on the timetable he demands. The Senate is not designed for that kind of efficiency. However, for a period after the 2008 elections, the Democrats had sixty members of the Senate. That is enough votes to shut off debate and amendments without a single Republican. Naturally, the majority party couldn't resist the temptation and shut Republican voices out of every aspect of the legislative process. Not only did they use their supermajority to prevent Republican amendments on the floor of the Senate, but since they didn't need Republican votes to pass bills, they cut us out of the process of developing legislation.
In my experience as a former chairman and now ranking member, some of the best examples of bipartisanship happen at the committee level. The Senate committees are where senators of both parties often work in the bipartisan way to delve into the details of legislation and iron out imperfections. This is how most bills are supposed to be handled.
I often tell people who are cynical about all the partisanship they see on TV that there's a lot of bipartisan work that goes on that you don't see. Much of that is in the committee process. It can be dry and technical. Senators of both parties sitting around a table discussing where to place a comma doesn't make for a breaking news alert. Nevertheless, the committees are where much of the hard, bipartisan work of the Senate is done. However, all that bipartisan work in committee is for naught if those bipartisan bills never get considered on the Senate floor.
In recent years, the Democrat leaders preferred to write bills behind closed doors without Republican input. They have then used a parliamentary trick to bring them right to the Senate floor, bypassing the usual committee process. If Republicans are shut out of having any significant input on the front end and blocked from having any amendments on the back end, is it any wonder we don't vote for the Majority Leader's motions to cut off debate?
Despite the bad blood caused by the tactics I described, I hoped and believed that after the 2010 elections things would be different. When Americans elected Republicans to a sizable majority in the House of Representatives and enlarged our representation in the Senate to 47 members, I thought that the majority party would recognize they had to work with Republicans. With 47 members, it was no longer possible under the Senate rules for the majority party to shut Republicans out of the legislative process and still expect to ram their agenda through. So, I naturally assumed that the Senate would resume its usual tradition of bipartisan cooperation involving open debate and amendments from both sides.
The Majority Leader didn't see it that way and continued to shut Republicans out of the process. In fact, if he had allowed an open debate and amendment process on many of the bills he sought to bring up, we could have gotten a lot more accomplished than we have. Sure, it would have taken longer to consider each bill than the Majority Leader might have preferred. He and his caucus might have also had to vote on Republican proposals instead of only the legislation of his choosing. Some Republican amendments might have embarrassed Democrats by forcing them to vote on issues they would rather avoid. Some Republican amendments might have even attracted enough Democrat votes to pass. Perhaps that is exactly what the Majority Leader is afraid of. He seems to want total control over the agenda. Majority Leader Reid has said as much in private. He told Senator McCain flat out that "amendment days are over."
How can he say that? It is the longstanding tradition of the Senate that all voices be heard and amendments get a full hearing regardless of the party of the sponsor. For example, tax and trade policy aren't exactly areas of natural agreement between the two parties. Despite that fact, when I was Chairman of the Senate Finance Committee, I helped put together several bipartisan bills. I, a Republican, worked in partnership with Senator Baucus, a Democrat, to produce bipartisan bills that we could both live with. Even when we were starting with a bipartisan bill, Senator Baucus wanted to make sure that his fellow Democrats had a chance to offer amendments and I respected that. It took a lot of time and effort, but that's what you have to do in the Senate if you want to actually get something done rather than simply blame the other side when you fail.
The U.S. Senate has been called the greatest deliberative body in the world because it was specifically designed to proceed at a measured pace and to guarantee that the rights of the minority party are protected from what political philosophers called the "tyranny of the majority." The Father of the Constitution, James Madison, wrote in Federalist Paper Number 10:
"Complaints are everywhere heard from our most considerate and virtuous citizens, equally the friends of public and private faith and of public and personal liberty, that our governments are too unstable, that the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority."
Those arguing for abolishing the filibuster sometimes talk about majority rule as though that is some fundamental principal. On the contrary, the aim of our Constitution is to protect the individual rights of all Americans, not the right of a majority to impose its will on an unwilling minority. In fact, James Madison was very concerned about what he called factions gathering together to impose their will on others. I'll quote again from Federalist Paper Number 10:
"If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote. It may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution. When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. To secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed."
In other words, Madison is saying that an important goal of the U.S. Constitution is to protect "the public good and private rights" from a temporary majority trying to impose its will on the minority. This goal is evident throughout the Constitution. You see it in the separation of powers between the three branches of government and our system of federalism. It also helps explain our bicameral legislative branch and the unique structure of the Senate.
In Federalist Paper Number 62, also usually attributed to the Father of the Constitution, Madison explains:
"The necessity of a senate is not less indicated by the propensity of all single and numerous assemblies to yield to the impulse of sudden and violent passions, and to be seduced by factious leaders into intemperate and pernicious resolutions. Examples on this subject might be cited without number; and from proceedings within the United States, as well as from the history of other nations."
There is a place for the passions of the moment to be reflected and that is the House of Representatives. But imagine if our only legislative body was the House of Representatives. Right now, that would mean Speaker Boehner would control the entire legislative agenda and the priorities of the House Republicans would be the only legislation that would have a chance of passing. Then, once the Democrats gained control in some future election, Republicans would have virtually no ability to have their views considered. This teeter-totter would not lead to thoughtful legislation that protects individual rights and balances the different views of all Americans.
You'll also note that Madison references examples from proceedings within the United States. Many state legislatures in the early days of our Republic were unicameral with frequent elections and weak executives. This led to many instances where a temporary majority faction would gain control and quickly pass legislation that advantaged the majority at the expense of the minority.
It is also the case that the Congress under the Articles of Confederation was unicameral, which caused a lot of instability as described again in Federalist Paper Number 62:
"Every new election in the States is found to change one half of the representatives. From this change of men must proceed a change of opinions; and from a change of opinions, a change of measures. But a continual change even of good measures is inconsistent with every rule of prudence and every prospect of success. The remark is verified in private life, and becomes more just, as well as more important, in national transactions."
The staggering of the terms of senators was partly done to provide stability, preventing temporary majorities from acting hastily and trampling on the rights of the minority. Only one-third of senators are up for re-election every two years, unlike the House of Representatives where all members are up for re-election every two years. Because only one-third of senators are up for re-election at once, it is less likely that one party can sweep the election and gain control of the entire legislative branch of government in one election. Here we see how the Senate was specifically designed to prevent tyranny of the majority.
In Federalist Paper Number 63, Madison continues his explanation of the unique role of the Senate:
" there are particular moments in public affairs when the people, stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn. In these critical moments, how salutary will be the interference of some temperate and respectable body of citizens, in order to check the misguided career, and to suspend the blow meditated by the people against themselves, until reason, justice, and truth can regain their authority over the public mind?"
Contrast the role the Father of our Constitution says the Senate is intended to play to the Majority Leader's vision for how a newly altered Senate would operate. One faction, the Democrat Party, would be able to ram through massive pieces of legislation with little or no input from duly elected senators who happen to be from another political party. And what if Republicans aren't happy with being shut out of the legislative process at every stage?
Well, as Senator Reid explained to one freshman Republican senator, "You can always vote against the bill." Not only does this take it or leave it approach effectively disenfranchise all those Americans who elected senators from the minority party to represent their views, it also leads to poorly thought out legislation. Since the proposed changes to the Senate Rules would make this body more like the House of Representatives, let's take another look at how that chamber operates.
Although the House is designed to reflect the will of the current majority, the trend toward the majority party shutting out the minority party in that body has increased over time. Some people trace this trend to the last decade of the 19th century when the Speaker of the House was a man named Thomas Brackett Reed.
Then Speaker Reed strengthened the power of the Speaker and sought to diminish the rights of the minority party. He once used his position to unilaterally change the interpretation of the quorum rule to prevent members of the minority party from blocking a measure by refusing to vote in a quorum call. This incident was called the "Battle of the Reed Rules." Then Speaker Reed famously said, "The best system is to have one party govern and the other party watch." This attitude earned him the nickname "Czar Reed."
Do we really want another Battle of the Reid Rules like we had over a century ago? Wouldn't that be going backwards? Ironically, the House of Representatives under Speaker Boehner has actually allowed more opportunity for the minority party to affect legislation than the current Senate Majority Leader. Senate Minority Leader McConnell has cited data from the Congressional Research Service showing that the Democrat minority party in the House has had 214 occasions to affect legislation this year compared to only 67 for the Republican minority in the Senate.
When the House of Representatives allows for more input from the minority party than the Senate, which is supposed to be the deliberative body, something is wrong. It is true that the cloture rule and the various different procedures that are called filibusters are not found in the Constitution, but the changes to the Senate Rules that some in the Democrat caucus are proposing would fundamentally transform the character of the Senate in a way the Founders never intended.
The proposed gutting of the Senate's historic rules and traditions threatens to replace the principle of the rights of the minority, so important to James Madison and our other Founding Fathers, with a new principle that the might of the majority makes right. The fact that the Majority Leader is contemplating doing so on a partisan basis by ignoring the existing Senate Rules is outrageous.
I know this unprecedented power grab makes even many Democrat Senators uneasy. Other Democrats who find this proposal tempting but who have not yet served in the minority will find they have a rude awakening once they have to live under the new regime they seek to create. To all my colleagues who might be inclined to support this fundamental transformation of the Senate, I will repeat once more Madison's warning about temporary majorities in the heat of passion enacting: "measures which they themselves will afterwards be the most ready to lament and condemn."