Lawsuit challenges Senate filibusters, but prospects for change appear dim
WASHINGTON – Caught in the gridlock on Capitol Hill, students are still waiting to find out their new interest rates for college loans. Young people whose parents brought them to this country illegally want to know under what terms they can stay.
And the number of filibusters that block Senate action on such issues has continued to rise to record levels, with lots of talk – but precious little action – to change those rules.
This week, the Common Cause watchdog group – arguing that filibusters discourage compromise and allow a minority to block needed reforms – asked a federal court to overturn the Senate rules that allow such delaying tactics.
“Congress is mired in gridlock as partisan factions put political advantage over the national interest,” said Bob Edgar, a former Democratic congressman who leads Common Cause. He said that requiring a supermajority of 60 votes to overcome threatened filibusters is “a big part of the problem. It creates a disincentive to compromise and allows powerful special interests to call the shots behind closed doors.”
While views on filibuster rules are mixed in the Senate, both Republicans and Democrats say they are unhappy with the lack of progress on important legislation in this Congress.
“What we found in the last several years is that we have lapsed into a new Senate . . . that is overrun with filibusters,” said U.S. Sen. Dick Durbin, D-Ill., the second-ranking Senate Democrat. “While filibusters used to be a rare tactic,” he now sees them “virtually every single week…. It has been abused, overused and, frankly, has really denigrated the reputation” of the Senate.
But the chances of changing the filibuster rule seem slim in this Congress, given that the GOP minority in the Senate, including fifth-ranking Senate Republican, Sen. Roy Blunt, R-Mo., could easily block a rule change. On Tuesday, Senate Minority Leader Mitch McConnell, R-Ky., blamed Democrats for stalemates on many key bills.
For example, McConnell said, Republicans had threatened to block a Senate vote on reauthorizing the Export-Import Bank, which passed the House in a bipartisan vote last week because Democrats had refused to allow Senate GOP amendments.
When Senate Majority Leader Harry Reid, D-Nev., caved in and agreed to allow votes on the amendments, the Senate voted 78-20 on Tuesday to approve the export-import bill. Durbin and both of Missouri’s senators – Blunt and Sen. Claire McCaskill, D-Mo. – voted for the legislation.
"There's a lesson here: When both sides have a chance to debate and amend, legislation tends to move," McConnell said before Tuesday’s vote. “But when the majority refuses any ideas that they didn't come up with, things slow down.”
Responding to McConnell, Durbin said, “There has to be a happy medium” between the Senate majority’s efforts to “move an agenda” and the minority’s need “to have a voice on the floor of the Senate and to express a point of view” different from the majority.
But, increasingly, that happy medium has not been found in the Senate. Both parties made use of the filibuster when they were in the minority from the early 1980s until 2006. But since Democrats gained control of the Senate late in 2006, Republicans have used the filibuster far more frequently. An average of about 140 “cloture” motions – requiring 60 votes to end GOP filibusters – have been filed in both Congresses since then.
When the current Congress convened in January 2011, Democratic Sens. Jeff Merkley of Oregon and Tom Udall of New Mexico proposed new rules that would, in effect, weaken the filibuster. But the proposals were voted down, in part with the support of more senior Democratic senators who had used the filibuster when they were in the minority.
Reid, who had generally supported filibusters to protect minority rights, signaled late last week that he might consider changes. “With Republicans willing to use every obstructionist tactic in the book, even on bills they support, it’s a wonder the Senate gets anything done at all,” Reid said. But he clarified Monday that such a rule change would not be attempted in this Congress, which ends in 2012.
Start of update: Blunt has opposed watering down the filibuster but shares McConnell's view that the best way to end gridlock is for the Senate's Democratic majority to allow more Republican input.
"I share the same sentiment as the people of Missouri and across the
country who are frustrated with the lack of progress in the Senate,"
Blunt said Wednesday. "The country deserves for the government to
work, and getting things done in the Senate doesn't require changing
hundreds of years of Senate precedent protecting the rights of the
minority. When both sides have a chance to debate and amend, we can
actually accomplish bipartisan solutions." End update.
McCaskill does not favor abolishing the fililbuster entirely but has supported a change to require senators taking part in one to be physically present on the Senate floor, a la “Mr. Smith Goes to Washington.”
In a statement to the Beacon on Tuesday, McCaskill said, “Some common-sense changes to the Senate rules would be a good idea, but the best way to tackle gridlock is for leaders to be willing to reach across the aisle and compromise.”
McCaskill added: “Nine times out of 10, you can find common ground with folks if you're open-minded and willing to put in the effort. I've found success doing so, and we need more senators willing to do the same.”
Should courts enter filibuster fray?
The lawsuit filed by Common Cause is based partly on the reasoning of one of its board members, attorney Emmet Bondurant, who argued in an article published last year in Harvard Law School’s “Journal on Legislation” that the filibuster was “an unforeseen and unintended consequence” of an 1806 Senate rule change.
While Bondurant is a respected lawyer, his logic on whether courts should take up the constitutionality of the filibuster will be challenged, legal experts say. That is partly because Article I, Section 5 of the Constitution states that “each house [of Congress] may determine the rule of its proceedings.” Filibusters and cloture are part of Senate Rule 22, which the Common Cause lawsuit says may conflict with other provisions of the Constitution related to Congress.
Washington University professor Steven Smith, an expert on the history of the filibuster and other issues related to the federal government, said in an interview Tuesday that he agrees that the Senate filibuster rules are flawed and should be changed, but he thinks that should be done by senators – not by a court ruling.
While he had not yet read the Common Cause lawsuit, Smith said, “The constitutional argument against the supermajority cloture rule is a strong argument.” However, he said the problem is who should decide this matter. And he added Article I, Section 5 of the Constitution “leaves procedural matters to the Congress itself.”
The plaintiffs in the Common Cause lawsuit included three students who would be affected by the DREAM Act – of which Durbin has been the leading Senate champion -- as well as four U.S. House Democrats, who argue that their House votes on the DREAM Act and a campaign finance bill had been “diluted” by the filibuster rule because those measures had been passed by the House and got a majority of Senate votes but failed to reach the 60 votes needed to stop a filibuster.
The students, who had been brought to this country illegally by their parents, claim they were denied a path to citizenship because the DREAM Act had been passed by the House and won 55 Senate votes in December 2010 but failed to reach the 60-vote threshold.
In a series of lectures last fall on “The Dysfunctional Senate," Smith argued that the Senate needed to make procedural changes if the chamber is to regain its previous power and relevancy.
"The Senate is now so bound by formal rules, the freedom of action has substantially disappeared," said Smith. "The majority can be obstructed by the minority quite easily."