Why can 41 senators crush popular will to temper money in politics?

Yesterday the threat of filibuster in the Senate killed — at least for the moment — a transparency bill the country both needs and wants. This is another example of how the continual threat — and use — of the filibuster is bringing our democracy to a halt. Tuesday’s victim? Americans who might want to know who is funding political ads in our elections.

The Constitution set up two different houses of Congress, and each governed by different rules. The House is designed for speed. The Senate, by contrast, has a different design which by its very nature slows down the pace of legislation and encourages deliberation — that’s why its member are older, serve longer, staggered terms, and why power is dispersed among committee chairs instead of being concentrated in the majority leader. As a former Senate staffer, I have seen firsthand how the Senate counters the impulsiveness of the House.

But, while debate and compromise make our country’s laws better, an overused minority veto makes progression impossible. The filibuster was never intended to be a tool for permanently derailing every piece of legislation. In recent years, the filibuster — and even the threat of a filibuster — has morphed from the exception to the rule, preventing the Senate from addressing critical policies, even those that the voters demand.

The latest causality of the Senate filibuster was the DISCLOSE Act, which would have ensured that corporate and union political spending on future federal elections (including this fall’s upcoming election) was fully disclosed to voters. The act also would have banned foreign-owned companies from spending in U.S. elections and kept TARP recipients and large federal contractors from running campaign ads. Now, thanks to the threat of filibuster, all of these doors are wide open to abuse.

After the Supreme Court granted corporations and unions the constitutional ability to spend their treasury funds on elections in the Citizens United case last winter, polls of likely voters showed that approximately 80 percent the American public vehemently disagreed with the decision and wanted Congress to enact legislative remedies. What did the voters want? According to the polling, significant majorities from across the political spectrum wanted foreign corporate dollars to stay out of U.S. elections, shareholders to have a say on how their investments were used in politics, pay-to-play politics to stop, and real transparency of where political money was coming from. The same polls showed majorities also support the Fair Elections model of funding campaigns to empower voters and small donors over big special interest money. Happily, even in the wake of the defeat of the DISCLOSE Act, other reform options — such as the Shareholder Protection Act and the Fair Elections Now Act — remain alive for Congress to embrace as responses to Citizens United.

On an up or down vote, the DISCLOSE Act would have passed. But before the Senate could consider — and hopefully pass — the act, 60 votes were needed to withstand the threat of a filibuster. On Tuesday, it didn’t have them. In a few short moments, 41 Senators thwarted the will of 80 percent of We the People. In a functioning democracy, one-third of the Senate should not be able to hold the legislative process permanently hostage, preventing consideration and passage of laws that the American people want enacted. Yesterday was another dark day for our broken democracy.

Ciara Torres-Spelliscy is an attorney at the Brennan Center for Justice at NYU School of Law.