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.
Some senators have argued that the Senate can repair itself within its current rules. The majority leader could decline to sidetrack filibustered bills, force a debate until the minority is exhausted, and hold the Senate in session to avoid resetting the two-speech per day limit. But experience has shown that in a battle of wills, a determined minority will prevail. The surer course is to restore the original parliamentary principles of debate to Senate rules.
There are two ways to implement these reforms. One is to follow the precedent established by Senate Democrats in 2013 when they lowered the cloture threshold to a majority for non-Supreme Court presidential nominees: ignore the rules as they are written, declare a new and fictitious interpretation, and impose that interpretation by overturning the parliamentary ruling of the chair. This “nuclear option” might be effective, but it is highly corrosive to the parliamentary procedure required for a well-functioning legislature. Pretending that a rule says something different than it does is a shortcut to anarchy.
The other way is to invoke what re-formers over the years have called the “constitutional option.” Article I, Section 5 of the Constitution grants each house the power to establish its own rules. Senate tradition holds that, by virtue of its staggered terms, it is a continuing body and therefore its rules continue in full force from session to session until amended. Those rules require a two-thirds vote for cloture on a change to the rules, creating the paradox that the very provision that needs reform prevents reform.
This doctrine of the Senate as a continuing body, however, is belied by the fact that all pending motions at the close of one Congress do not extend into the next. It also runs afoul of the bedrock principle that one Congress may not bind the next. A strong case can be made that until the Senate adopts rules to govern its two-year session, it is operating solely on precedent. It retains its constitutional authority to adopt new rules by a simple majority vote for the current session unfettered by hindrances imposed by a previous one.
The choice of whether the Senate majority restores its constitutional role in lawmaking is its own to make, to live with, and to answer for. In making that choice, it needs to consider whether its current rules of debate advance or obstruct its role as a deliberative body with the responsibility of passing reasonable laws that comport with the public will.
Of historic moments like these, Shakespeare’s Brutus said, “There is a tide in the affairs of men, which, taken at the flood, leads on to fortune; Omitted, all the voyage of their life is bound in shallows and in miseries. On such a full sea are we now afloat, and we must take the current when it serves or lose our ventures.”
Voters elected Republican majorities in both houses of Congress and they expect action. They’ll get it from the President and from the House. But in order for the Senate to rise to this occasion, it must reform its rules.
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.