How and Why the Senate Must Reform the Filibuster 3

Hillsdale College campus aerial view of the main plaza with an American flag prominently displayed in the foreground. Walkways between buildings frame the grass-covered lawn and there are numerous trees with bright green foliage scattered across the landscape.

The following [How and Why the Senate Must Reform the Filibuster, by Tom McClintock] is adapted from a speech delivered on January 11, 2017, at Hillsdale College’s Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship in Washington, D.C., as part of the AWC Family Foundation Lecture Series.

The filibuster is fundamentally different today because of two changes to Senate rules—changes that explain the body’s current inability to act. The first occurred in 1917 in response to a filibuster of something called the Armed Ship Bill. The Senate adopted a cloture rule setting the threshold for ending debate at two-thirds of those present and voting, later changed to three-fifths of the whole Senate. Even then, this change was in keeping with common parliamentary practice. And even after its passage, the filibuster’s physically demanding nature meant that it was seldom employed. There were only 58 filibusters in the next 52 years—barely one per year.

But beginning in 1970, the number of filibusters exploded by a magnitude of 36-fold. There have been 1,700 in the 46 years since then. Why? Because in 1970, Senate Majority Leader Mike Mansfield instituted a “two-track” system that allowed the Senate, by unanimous consent or the approval of the minority leader, to bypass a filibustered bill and go on to another. This relieved a filibustering senator of the job of having to talk through the night and it relieved his colleagues of their frustration.

The filibuster thus entered the couch-potato world of virtual reality, where an actual speech is no longer required to block a vote. Today the mere threat of a filibuster suffices to kill a bill as the Senate shrugs and goes on to other business. The filibuster has been stripped of all the unpleasantness that discouraged its use and encouraged compromise and resolution.

Whereas the filibuster prior to 1970 was designed to ensure debate, after adoption of the two-track system it mutated into a procedure that prevents debate. As a result, the greatest deliberative body in the world now has difficulty deliberating on anything of importance.

During the last session of Congress, the House sent hundreds of bills to the Senate, including appropriations bills required to fund the government. In­stead of amending those bills and sending them back to the House, the Senate seized up—not for lack of majority will, but because of minority recalcitrance and the post-1970 filibuster.

This represents three serious dangers to constitutional government.

First, the legislative branch cannot function if one house proves unable to act on major legislation, and the atrophy of the legislative branch drives a corresponding hypertrophy of the executive branch. It is perhaps the single greatest reason for the rise of the imperial executive in recent decades. President Obama’s constant refrain, “If Congress fails to act I will,” is poisonous to a constitutional republic—but it is inevitable if the legislature wastes away. Nature abhors a vacuum, and the modern Senate filibuster has created one at the heart of our Constitution.

Second, because the American peo­ple hold the sovereign authority in our country but delegate sovereign power to their elected representatives, they have every reason to lose faith in their government if their broad sentiments expressed in elections are not translated into law. This is why the belief that “my vote doesn’t matter”—a belief suicidal to a democratic republic—is increasingly heard expressed in our country today.

Third, the ability of the minority to cause gridlock in the legislative branch undermines the authority of the Constitution itself. Implicit in the design of Congress is its power to act on most matters by majority vote. Ex­traordinary majorities are reserved only for extraordinary matters such as treaties, constitutional amendments, impeachments, expulsions, and veto overrides. The practical effect of the modern filibuster is to replace the constitutional benchmark of majority rule with an artificial threshold of three-fifths.

A central concept in maintaining the balance of powers is the assumption that the members of each branch of government will jealously and aggressively defend their prerogatives against the others. So why do senators allow their body to be paralyzed?

This is Part Three of a multi-part series. Keep watch for the next installment!

Tom McClintock has served as the U.S. Representative for California’s 4th congressional district since 2009. He received his B.A. from UCLA. He is a senior member of the House Natural Resources Committee, where he chairs the Subcommittee on Federal Lands, and serves on the House Budget Committee. Prior to his election to Congress, he served for 22 years in the California legislature and ran for governor in California’s recall election in 2003.

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