FILIBUSTER ABUSE: How Republicans are Killing Democracy

The Republicans in the Senate, led by Mitch McConnell of Kentucky, have abused the Senate rules to such a degree that our legislative democracy is in jeopardy.  Never before in the history of the Senate has the minority party been so steadfast in their desire to delay, obstruct and prevent majority rule.  The secret holds of nominations, the objecting to unanimous consent to bring bills to the floor for debate, the requirement that bills be read in their entirety aloud for the record, and the insistence that every bill be subject to a cloture vote (a vote to end debate) has ground the Senate down to a near standstill.  There have been over 115 cloture votes in the current session of Congress with over 400 bills that have passed the House waiting action by the Senate.  This is not how the Senate was designed to work by our founders.

The Senate was created during the Constitutional Convention as a body in which each state would be represented equally thereby giving less populated states a voice in the legislative process.  With membership in the House of Representatives based on a state’s population, giving large states an edge in legislating, a compromise had to be crafted and the Senate was formed.  The rules under which the Senate conducts business are not in the Constitution.  They have been created by each new Senate every two years.  Many of the procedures the Senate follows are based on tradition but can be changed.  Never before has there been such a dramatic need for change in the Senate.

Senator Jeff Merkley of Oregon appeared on the Rachel Maddow Show on MSNBC recently broadly discussing the changes that he and other Senators are developing.  Senator Tom Harkin indicated the same thing during an appearance on The Last Word with Lawrence O’Donnell on MSNBC.  Both senators are on the record as saying they favor changing the filibuster rules but neither Senator went into the specifics of a plan.  They both did say the only time to make such changes is on the first day of the new Senate in January 2011.  Any change in rules will only require the approval of 51 Senators.  This will be objected to by the minority but Vice-President Biden, the President of the Senate, has the final word on this procedural maneuver.  And with, hopefully, 53 Democratic Senators on board with the changes, they will pass.

I would like to see the rules be changed to make a filibuster an extraordinary occurrence, not the regular order of business.  If Senators want to keep the 60 vote threshold to end debate, so be it, but what happens after a failed cloture vote must change.  Currently, it is too easy to filibuster.  Senators voting against ending debate can filibuster without debating anything.  They vote against cloture and then return to their offices or go home until the Senate majority leader schedules another cloture vote.  No debate on the bill in question is required.  To me, the original purpose of voting against cloture is the desire to have more debate on the bill.  It was not supposed to be an attempt to obstruct the will of the majority.

I would suggest that once a cloture vote fails, all Senators voting against cloture and wanting to filibuster a bill must remain on the floor of the Senate at their desks for further debate.  This debate would last for a period of 24 continuous hours.  During this time, no Senator may leave the chamber for more than 10 minutes in a given hour.  If a Senator is away from the chamber for longer than 10 minutes, debate ends immediately and a final vote on the bill is scheduled.  After 24 hours of continuous debate, another cloture vote is mandatory.  If the vote fails, the process is repeated.  Eventually, cloture will be invoked and a final vote will take place.

Furthermore, no motion to bring a bill to the floor for debate can be filibustered.  Every bill should be allowed to come to the floor of the Senate without objection for a full debate of the topic.  Isn’t that the job of a Senator, to debate and decide on legislation?

Additionally, no judicial appointment below the U.S. Supreme Court or administration appointee should be subject to delaying tactics of any kind, including the filibuster.  If a Senator places a hold on a nomination it should be done transparently by the Senator with a stated objection.  The hold should last for a maximum of 72 hours to clear up the matter in question.  Only two holds should be allowed on any one nomination.

A Supreme Court nomination should be subject to the filibuster rules due to the importance of that position.  Decisions by lower level judges can always be appealed but a Supreme Court decision is final.  A nominee to the highest court must be subject to minority party review to help ensure that the most qualified people are seated on the Court.

Hopefully, these are the types of changes that the Senators are contemplating.  If the Senate is allowed to carry on as it does currently, the next two years will see more gridlock as the Republicans will continue to make it difficult for President Obama and the Democrats to succeed in improving the country.