Is it time to repeal, replace and reform the filibuster?
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Poor Mitch McConnellAddison (Mitch) Mitchell McConnellMcConnell: Battle for Senate 'a 50-50 proposition' 'Packing' federal courts is already a serious problem What a Biden administration should look like MORE. Weeks of closed-door efforts to draft legislation to repeal and replace ObamaCare have only been met with open criticism. Some think the replacement is too hard, while others that the repeal doesn’t go far enough. Everyone balks at the secret process, limited debate and rushed vote. So much for the greatest deliberative body in the world.

Senators find themselves in this pickle for a number of reasons, not the least of which are divisions in their caucus. But the underlying problem is a 1917 Senate rule that extends debate unless three-fifths of Senators bring the debate to a close.

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Intended to ensure debate and prevent railroading, the filibuster has become an impassable roadblock that precludes debate and guarantees obstruction. All legislation is subject to the filibuster’s unrelenting grip. The result (ask any member of the House of Representatives) is that a mere rule prevents Congress from exercising its basic constitutional power to legislate.

 

That’s why ObamaCare repeal is being done through an obscure budget process known as reconciliation, which requires a majority, in order to get around the cloture rule, which requires three-fifths. But that process restricts what can be done — so there is no full regulatory repeal and other needed policy reforms of healthcare outside of spending and revenue. And now they can’t even get a majority.

The release of the Senate bill last week set off a flurry of maneuvers. Sens. Ted CruzRafael (Ted) Edward CruzHillicon Valley: Big Tech hearing the most partisan yet | Rubio warns about foreign election interference | Trump campaign site briefly hacked Tech CEOs clash with lawmakers in contentious hearing Trump announces intention to nominate two individuals to serve as FEC members MORE (R-Texas), Ron JohnsonRonald (Ron) Harold JohnsonOvernight Defense: Trump campaign's use of military helicopter raises ethics concerns | Air Force jets intercept aircraft over Trump rally | Senators introduce bill to expand visa screenings Senators introduce bipartisan bill to expand screening of foreign visitors Democrat announces 2022 bid for Ron Johnson's seat MORE (R-Wisc.), Mike LeeMichael (Mike) Shumway LeeTrump says ex-staffer who penned 'Anonymous' op-ed should be 'prosecuted' White House to host swearing-in event for Barrett on Monday night Pence adviser Marty Obst tests positive for COVID-19 MORE (R-Utah), and Rand PaulRandal (Rand) Howard PaulTrump says ex-staffer who penned 'Anonymous' op-ed should be 'prosecuted' CIA impeachment whistleblower forced to live under surveillance due to threats: report Rand Paul rips 'leftwing media' for focusing on COVID-19 cases: 'Mortality rates are plummeting' MORE (R-Ky.) immediately issued a joint statement announcing they do not support the current plan “but are open to negotiation.” Therein lies an opportunity.

What if a few undecided senators use their voting leverage not only to improve the healthcare legislation but also to reform the filibuster so that it actually fosters legislative deliberation and debate? Two simple procedural moves that require no changes in the Senate’s rules would do just that. It would make immediate compromise on this healthcare legislation all the more palatable to these senators and their colleagues if they knew that future conditions favored deliberative lawmaking.

A “two-track” system introduced in 1970 exploded the use of the filibuster. Prior to this, a filibuster meant that no other business could be discussed until a vote was called on the bill under consideration, hence talking to prolong the end of the floor debate. This made the filibuster a powerful weapon but hard to sustain, and therefore rare (an average of one a year).

Under the “two-track” system, a call for a filibuster stops the bill in question while the Senate moves on to other business, making the filibuster more deadly by making it easy and cost-free: there have been 1,700 filibusters since 1970. No new rule would be needed to fix this — just a decision by the Senate majority leader that the bill at hand will be the only business until it is completed, and then maintain the old procedure.

The second move would be to enforce the existing Rule XIX, which stipulates that “no Senator shall speak more than twice upon any one question in debate on the same legislative day without leave of the Senate, which shall be determined without debate.”

As a legislative day is not necessarily the same as a calendar day (in 1980, one legislative day lasted 162 calendar days), enforcing this rule along with ending two-tracking would oblige real, talking filibusters that are deliberative and effective as well as infrequent and constrained — taking away the minority’s effortless pocket veto that compels the majority to try to push legislation through processes like budget reconciliation.

The key to prudence is to relate current circumstances to the long-term good. Reforming the filibuster by restoring its muscle and its limits will strengthen the Senate’s legislative role and the authority of the legislative branch as a whole, and a revived Congress — able to deliberate wisely and legislate in accord with popular consent — will strengthen our constitutional republic.

Matthew Spalding, Ph.D., is associate vice president and dean of educational programs for Hillsdale College, where he oversees the Allan P. Kirby Jr. Center in Constitutional Studies and Citizenship.


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