If President Obama wants to get anything done in his second term, Democrats in the Senate will have to overcome one major obstacle: the filibuster.
In the last four years, Republicans have used the filibuster to prevent landmark pieces of legislation--such as the DREAM Act, the Paycheck Fairness Act and additional measures to stimulate the economy--from even reaching the floor for debate, let alone a vote. Republicans have shattered previous records for filibuster use, and the share of bills introduced in the Senate that have been passed has reached an all-time low.
"Mitch McConnell has orchestrated a strategy of killing bills in the middle of the night," Sen. Jeff Merkley, D-Ore., a leading advocate of filibuster reform, said in an interview Saturday on Up w/ Chris Hayes. Merkley said the abuse of the filibuster had warped the Senate, making it a far less productive place than it has been for most of its history. "The Senate is completely different today. It's paralyzed and broken today in a way no one could have envisioned a couple of decades ago."
The filibuster has mutated over the years from a quirk of the Senate rules and an obscure procedural instrument--known mostly for so-called "lone wolf" filibusters like the one from the iconic film Mr. Smith Goes to Washington--to a routine impediment to legislative progress, a bludgeon used by the Republican minority to quash virtually any attempt by Democrats to govern.
Merkley and his colleagues have proposed changes to the rules of the Senate that would allow bills to at least the reach the floor for debate before being filibustered. The proposed changes would also bar filibusters of bills once they've been passed by the Senate and are ready to move to a joint conference committee with the House. And, perhaps most notably, the rules changes would require senators to take to the floor and address their colleagues in order to block action on a piece of legislation. Right now, senators can simply obstruct bills silently, without even having to explain themselves.
"We no longer have the culture, the social contract that, if you’re going to object to a simple majority, you’re going to come to the floor and you’re going to make your views known to your colleagues and the United States," Merkley said. "All we’re saying here is that, if you don’t have the courage of your convictions to come and debate the issue," Merkley added, "then we should get on with a simple majority vote."
The proposed changes, which have the strong backing of Senate Majority Leader Harry Reid and nearly 51 Democratic senators, are also broadly endorsed by a wide range of Constitutional scholars and the public at large. A new Huffington Post/YouGov poll released Friday found that 65% of Americans favor tweaking the rules to require senators to debate a bill on the floor if they wish to block it from proceeding.
Even the man responsible for enforcing and administering the rules of the Senate endorsed some of the changes. In an interview on Up w/ Chris Hayes Saturday, Alan Frumin, who served as the parliamentarian of the Senate for nearly two decades until he retired last year, said he supported changes that would forbid senators from filibustering bills before they reach the floor for debate. Frumin also said he favored changes that would bar senators from blocking bills once those bills have passed the Senate and are ready to move to a conference committee with the House.
"We're with Senator Merkley on this," Frumin said. For most of its history the filibuster remained an effective way of protecting minority rights and fostering debate--until recently, he said. "The minority has gone about doing this over the years, whether it’s a Democratic or Republican minority, with some sense of restraint and some sense of comity," Frumin said.
Merkley and Frumin seem not only to have most of the Democratic caucus and public opinion on their side, but history as well. The filibuster is nowhere mentioned in the Constitution, and many of the Founders argued forcefully against proposals that would have required more than 51 votes to pass legislation in the Senate. In 1788, for example, James Madison, known as the 'Father of the Constitution," wrote in Federalist No. 58 that requiring a supermajority in the Senate would "reverse" the "fundamental principle of free government." Such a policy would empower special interests and make government "oligarchic," Madison said.
"An interested minority might take advantage of it to screen themselves from equitable sacrifices," Madison wrote, rather prophetically. "Or, in particular emergencies, to extort unreasonable indulgences."