Except for rare occasions, the Senate is ruled by the minority. With 60 votes needed to end a filibuster that can essentially be “called-in” by the minority, the American public is being deprived both of a truly deliberative body and seeing the consequences of their voting behavior.
There is no transparency or accountability under today’s Senate filibuster rules. Consequently we have had an abusive and undemocratic use of filibusters in recent years at every step in the legislative process. The Senate has become frozen in its ability to address the nation’s problems, especially when it comes to promoting a healthy economy. That is why many business organizations like the American Sustainable Business Council, a national coalition of business organizations that together represent over 150,000 small and medium businesses, strongly supports filibuster reform.
With the new 113th Congress there is an effort underway in the Senate to put filibuster reform on the agenda for January 22 in an effort to create a more functional chamber. Two competing proposals are being offered but only one does the job.
Democratic Senators led by Jeff Merkley and Tom Udall have proposed a filibuster reform package that does not eliminate the filibuster or even decrease the number of votes needed for cloture. But it would require “talking filibusters”. No more simply phoning in an objection to a bill thus requiring an almost unattainable 60-vote supermajority of Senators to end debate, a debate that actually never takes place.
This “lazy filibuster” would end with a “talking filibuster” rule in which the Senators objecting must hold the floor and actually debate continuously as the definition of a filibuster indicates. If no filibuster supporter is talking, a majority of Senators present can vote to end the debate and move forward on the bill.
Recently Senator Udall indicated that Senate Majority Leader Harry Reid had 51 votes to make this change using the “Constitutional option”. Requiring only a majority of Senators to change rules at the beginning of a new session has been both upheld by the Supreme Court and used by previous Senates.
However, the “Constitutional option” raises a concern with some Senators who believe that it would make bi-partisanship even worse and that it doesn’t protect the minority’s ability to impact legislation. Thus a counter proposal has been offered by Senators John McCain and Carl Levin, who suggest using a temporary “Standing Order” to make slight changes to filibuster rules. Unfortunately, the changes offered do virtually nothing to stop filibusters on bills when the minority leader determines that a dysfunctional Senate better suits the minority’s cause.
Today’s Senate filibuster rules must be changed. Instead of creating a more toxic atmosphere in the Senate, a “talking filibuster” might encourage more bi-partisan cooperation on bills and improve the productivity of the chamber. Such a rules change will create a more functioning and efficient Senate that will return it to its rightful position of influence in the legislative process.
The “talking filibuster” will still protect the minority’s opinion. And legislative dissenters will still be able to voice their opinion to House, president and Supreme Court. And if all this fails the minority, there will be the next election. This is actually how our democratic system was meant to be.
Elections do have consequences. But when those consequential actions are hidden from voters and the public is denied the right to see their elected leaders in action in order to hold them accountable, then we perpetuate the public’s voting decisions that feed dysfunctional elected bodies.
Knapp is vice chairman of the American Sustainable Business Council Action Fund.