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Filibusters – Friend or Foe?

January 3, 2011

When the Senate convenes on Wednesday, it is expected to consider some changes in its own rules.  The filibuster is on the “hot seat” with members of both parties disgusted with the way it has been used recently in the Senate to obstruct action and obscure reasonable debate.

According to a New York Times editorial on Sunday, January 2, the filibuster was used 275 times in the 111th Congress – the one that just came to a close.  The practice was used to block not just major policy issues, but also 173 nominations, and countless motions-to-proceed, amendments, and procedural measures.

More than 20 years ago, FCNL published a newsletter article on the filibuster, pointing out its value in preserving debate, as well as the abuses that were already becoming evident in the 100th Congress.  The article noted that only 26 cloture votes (to close off a filibuster) had been taken between 1789 and 1962, but that 244 had been taken since 1962, with 40 of them occurring in the 100th Congress alone.  The 111th Congress, with its 275 filibusters, makes the 100th Congress’s obstructionism look like efficiency.  Today, we delivered a letter to Senate Majority Leader Harry Reid supporting a vote to change the rules concerning filibusters.

A number of rule changes are being proposed.  Perhaps most significant is one proposed in Senate Rules Committee hearings last fall by Senator Tom Udall of New Mexico to permit the Senate to approve changes in its own rules by a simple majority.  The Senate now operates under a rule that requires a 2/3 majority to approve any rule changes.  That change, according to a wide spectrum of legal and constitutional scholars, can be approved by a majority vote on the first day of a new Congressional session when, according to the Constitution, “each House [of Congress] may determine its rules of its proceedings.”  With that change in place, the Senate could then consider specific rule changes individually and approve any of them by a simple majority vote.

Among the specific proposals that could come forward:

  • Allow filibusters only on the final passage of a bill
  • Require a minimum number of Senators to file a filibuster petition, and require the members to hold the floor by speaking continuously
  • Over a period of eight days, gradually decrease the size of the majority that would be needed to invoke cloture, until a simple majority could end the debate
  • Require transparency in the process, ending the practice of “secret holds” and anonymous filibuster threats.

See FixtheSenateNow.org for more ideas.

None of the proposals would do away with the practice of filibusters.  Although the practice is not provided for in the Constitution, members of both parties value filibusters as a protection of the right of the minority to be heard on important policy issues.  But members of both parties also agree that abuse of the practice can prevent the Congress from doing the job it was elected to do.  Maybe the 112th Congress will find a way to move ahead on its business.

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