By Mark S. Mellman - 02/24/10 12:34 AM EST
Ever since Cato the Younger first used the maneuver in an attempt to frustrate Julius Caesar’s ambitions, the filibuster has been controversial — beloved by minorities battling to stave off the “tyranny of the majority,” but derided by majorities seeking to enact the platforms on which they were elected.
In the House, the filibuster was available until 1842, while Senate rules created the opportunity for filibusters in 1806, though it lay unused until 1837.
Until recently, the Senate often acted, even in the face of controversy, because filibusters were deployed only in rare circumstances. Despite divisive issues like civil rights, Vietnam and the Great Society, no Senate term in the ’60s produced more than seven filibusters. Today, in a version of “GOP Senators Gone Wild,” filibustering has become the norm. Last term alone saw 52 — more than during the entire decade of the ’60s.
Voters appear importantly ignorant about the tactic. A Pew poll found that just 26 percent knew 60 votes were required to end a filibuster, while a nearly equivalent 26 percent thought a simple majority of 51 would suffice.
Nonetheless, voters seem conflicted. Some polls show large margins in favor of the filibuster. Others find substantial margins opposed.
Generating a coherent portrait of public opinion from the conflicting evidence is difficult. While the contradictory results may merely bespeak voters’ ignorance or inconsistency — there may be a deeper principle at work.
It appears that questions emphasizing the need to achieve the broad consensus symbolized by 60 votes produce support for the filibuster, while those focusing on the fact that 41 senators can thwart the will of the majority yield opposition to the maneuver.
Americans value consensus, believing in the wisdom of crowds. Voters also recognize the need to get things done and celebrate the principle of majority rule.
Is there a way to prevent filibuster abuse that preserves the minority’s ability to compel consensus on matters it considers truly fundamental, while not precluding progress on every front? Is there an approach that enables minorities to block bills and nominees that violate their most cherished values while also enabling majorities to get things done? Probably not.
Nevertheless, consider this proposal: Grant the minority leader a maximum number of filibusters — say, five — that can be used in each Congress. Thus, in a few particular instances during each term, Senate minorities can choose to block progress, unless the majority musters 60 votes, but minorities cannot block progress on everything.
Minorities would be forced to set priorities — to separate bills or appointments that violate their fundamental principles from those they merely dislike. Majorities could not ride roughshod over the minority, nor could the minority block the majority at every turn.
This approach should sit well with honest Republicans whose policy committee argued, “Supermajority votes are reserved for matters of special importance.” The definition of “special importance” now appears infinitely elastic, covering almost every item of Senate business. The proposed reform would require a more rigorous, and more reasonable, definition of “matters of special importance.”
Ending filibuster abuse this way would allow both parties to protect their core principles in the minority, while giving majorities the opportunity to govern — and it might even help restore some of the fabled comity that enabled the Senate to pass controversial legislation for decades without 60 votes, under the traditional American principle of majority rule.
Mellman is president of The Mellman Group and has worked for Democratic candidates and causes since 1982. Current clients include the majority leaders of both the House and Senate.