• The Heritage Network
    • Resize:
    • A
    • A
    • A
  • Donate
  • An Astute Perspective on Filibuster Reform

    Retiring Senator Chris Dodd (D–CT) gave his farewell speech on the Senate floor on Tuesday, and his speech was an excellent discussion of the pitfalls of so-called “filibuster reform.” Dodd is the longest serving Senator in Connecticut history and a veteran of the Senate Rules Committee. Other left-of-center Senators should read his speech and listen to his sage advice.

    There is bipartisan opposition to the idea that the Senate’s rules on the filibuster should be changed. I explained the filibuster rule in a Foundry post in January of this year, “All Out Attack by the Left on the Filibuster”:

    Rule 22 of the Senate’s rules governs the conduct of a filibuster and requires that a “Cloture Petition” be signed by 16 Senators to commence the process of shutting off debate on a nomination or legislation. The left wants to get rid of this rule because they don’t like the fact that the rule requires a vote of 60 members to shut off debate.

    In that post I explained why the filibuster rule is constitutional:

    The Constitution states in Article I, Section 5 that “each house may determine the rule of its proceedings.” The Senate has passed Rule 22 by a 2/3rds vote. In 2005, some Republicans flirted with the idea of abolishing the filibuster for judicial nominees and the left fought that idea with all they had within the Senate and in left-leaning think tanks. In 2005, the term used to describe abolishing the filibuster was the “Nuclear Option.” Basically, this was a means to use a simple majority of the Senate to ignore the rules of the Senate by claiming the filibuster was unconstitutional.

    Dodd explained the opposition to the filibuster much better than I ever could have in his farewell speech. Dodd argued that Senators should resist the urge to convert the Senate into a smaller version of the House of Representatives:

    I have heard some people suggest that the Senate as we know it simply can’t function in such a highly charged political environment, that we should change Senate rules to make it more efficient, more responsive to the public mood, more like the House of Representatives, where the majority can essentially bend the minority to its will.

    The legislative branch of the federal government would be disempowered if the Senate decided to chip away at the filibuster. Individual Senators would lose the power to assert the right of offering amendments and debating issues if these ideas are implemented. The Senate would cease to be the most deliberative body in the world if the passions of liberals were implemented to abolish or defang the filibuster rule.

    Then Dodd made the case to stick with the vision of the framers of the Constitution:

    We one hundred Senators are but temporary stewards of a unique American institution, founded upon universal principles. The Senate was designed to be different, not simply for the sake of variety, but because the framers believed the Senate could and should be the venue in which statesmen would lift America up to meet its unique challenges.

    A student of the history of the Senate, Dodd cited the role of Connecticut’s delegates in the framing of the Constitution:

    As a Senator from the State of Connecticut—and the longest serving one in its history—I take special pride in the role two Connecticut Yankees played in the establishment of this body. It was Roger Sherman and Oliver Ellsworth, delegates from Connecticut to the Constitutional Convention in 1787 who proposed the idea of a bicameral national legislature. The Connecticut Compromise, as it came to be known, was designed to ensure that no matter which way the political winds blew, or how hard the gusts, there would be a place for every voice to be heard. The history of this young democracy, the Framers decided, should not be written solely in the hand of the political majority. In a nation founded in revolution against tyrannical rule, which sought to crush dissent, there should be one institution that would always provide a space where dissent was valued and respected. E Pluribus Unum—out of many, one. And though we would act as one, the Framers believed that our political debate should always reflect, that in our beliefs and in our aspirations, we are, in fact, many. In short, our Founders were concerned not only with what was legislated, but, just as importantly, with how we legislated.

    The idea that the procedures used to legislate are as important as the substance of legislation is a point that has not been stressed by other experts in Senate procedure. Allowing all 100 Senators to participate in the process, from beginning to end, is part of the vision of our Founders. The idea that not merely a political majority but all Americans should participate in the legislative process is central to American republican democracy.

    Dodd continued to discuss the unique role the Senate plays in the legislative process:

    Now in my years here, I have learned that the appreciation of the Senate’s role in our national debate, is an acquired taste. Therefore, to my fellow Senators who have never served a day in the minority, I urge you to pause in your enthusiasm to change Senate rules.

    Dodd admonished members of the minority who obstruct:

    And to those in the minority who routinely abuse the rules of the Senate to delay or defeat almost any Senate decision, know that you will be equally responsible for undermining the unique value of the United States Senate, a value greater than that which you might assign to the political motivations driving your obstruction.

    It is important to note that although both Republicans and Democrats have arguably abused the filibuster rule, the solution may not be to change the rules. Maybe the solution is to restore comity in the Senate. It is important to note that one reason why Republicans have engaged in a series of filibusters over the past two years is in response to Senate Majority Harry Reid’s (D–NV) own abuse of Rule 22.

    As I wrote in a September piece titled “Obstructionism in the Senate,” Reid has abused his authority as Majority Leader to block the rights of individual Senators to offer amendments. He did this on the defense authorization bill before Election Day and has continued his strong arm tactics in the lame duck session:

    Many students of the U.S. Senate see a disturbing trend by Senate Majority Leader Harry Reid (D–NV) to abuse the rules of the Senate by using a procedural tactic to stifle debate and amendment. Reid is expected to use a procedure called “filling the amendment tree” to block any opportunity for Senators to offer amendments unless they get the consent of the Majority Leader. Reid will use the tradition of priority recognition for the Majority Leader to offer a series of amendments to the defense authorization bill. Reid will fill up all of the possible amendments to the bill with technical corrections as a means to prevent Senators from offering substantive amendments. This will block out amendments from the other 99 Senators. A Senator will then have to get the consent of Reid to offer an amendment. This is not a good faith application of the Senate’s rules.

    It is clear that both Republicans and Democrats can be blamed for the legislative impasse over the past two years, yet attacking the filibuster is no solution.

    If filibuster reform is implemented, the Senate will operate like the House, with pure majority rule and no significant participation by Senators from the minority party, both Republicans (now) and potentially Democrats (in the future). Dodd argued for Senators to consider deliberation and compromise as an alternative to transforming the Senate into a smaller version of the House:

    But in the end, this isn’t about the filibuster. What will determine whether this institution works or not, what has always determined whether we will fulfill the Framers’ highest hopes or justify the cynics’ worst fears, is not the Senate rules, the calendar, or the media. It is whether each of the one hundred Senators can work together—living up to the incredible honor that comes with the title, and the awesome responsibility that comes with the office. Politics today seemingly rewards only passion and independence, not deliberation and compromise as well.

    Dodd argued that our founding lead to a long partisan debate, yet this shows the strength of America, not weakness:

    From the moment of our founding, America has been engaged in an eternal and often pitched partisan debate. That’s no weakness. In fact, it is at the core of our strength as a democracy, and success as a nation. Political bipartisanship is a goal, not a process. You don’t begin the debate with bipartisanship—you arrive there. And you can do so only when determined partisans create consensus—and thus bipartisanship. In the end, the difference between a partisan brawl and a passionate, but ultimately productive, debate rests on the personal relationships between Senators.

    Dodd argued that debate, and an often personal and high pitched debate, is good for America, not bad. Bipartisanship may not be common, yet it is not dead. Socialist Senator Bernie Sanders (I–VT) and retiring Senator Jim Bunning (R–KY) can find common ground on opposing Ben Bernanke to be Chairman of the Federal Reserve. Senators Tom Coburn (R–OK) and Claire McCaskill (D–MO) can offer bipartisan legislation to rid the Senate of earmarks. It can be done:

    No matter how obnoxious you find a colleague’s rhetoric or how odious you find their beliefs, you will need them. And despite what some may insist, you do no injustice to your ideological principles when you seek out common ground. You do no injustice to your political beliefs when you take the time to get to know those who don’t share them. I’ve served with several hundred Senators under every partisan configuration imaginable: Republican presidents and Democratic presidents, divided government and one party control. And as odd as it may sound in the present political environment, in my three decades here, I cannot recall a single Senate colleague with whom I could not work. Sometimes those relationships take time, but then, that is why the Framers gave us six-year terms: so that members could build the social capital necessary to make the Senate function.

    Dodd lamented that the Senate may have problems, but dismantling the filibuster is not the answer. Our Framers envisioned difficult times for the Republic.

    I share the confidence that Roger Sherman, Oliver Ellsworth, and the Framers placed in this body and in its members. But I am not blind. The Senate today, in my view, is not functioning as it can and should. But look around you. This moment is difficult, not only for this body, but for the nation it serves. And, in the end, what matters most in America is not what only happens within the walls of this chamber, but rather the consequences of our decisions across the nation and around the globe.

    Members have the rights enshrined in the Constitution and the explicit rules of the Senate for a purpose. Dodd celebrated the power that all Members of the Senate are granted under the rules and traditions, not merely the power of the Majority Leader and Minority Leader:

    After all, no other legislative body grants so much power to each member, nor does any other legislative body ask so much of each member. Just as the Senate’s rules empower each member to act like a statesman, they also require statesmanship from each member. But these rules are merely requiring from us the kind of leadership that our constituents need from us, that history calls on us to provide in difficult times such as these. Maturity in a time of pettiness, calm in a time of anger, and leadership in a time of uncertainty—that is what the nation asks of the Senate, and that is what this office demands of us. Over the past two centuries, some 1900 men and women have shared the privilege of serving in the Senate. Each of us has been granted a temporary, fleeting moment in which to indulge either our political ambition and ideological agenda, or, alternatively, to rise to the challenge and make a constructive mark on our history.

    Senators would be ignorant of the will of our Founding Fathers if they embarked down the road of filibuster reform. Yes, there have been reforms in the past, but every chipping away at the rules that allow all 100 Senators to participate in the process is a chipping away at the unique system of governance we have established in the United States of America. Senator Chris Dodd has given an important speech, and all Senators should print out a copy of it and keep it close so they can make sure not to take actions, like filibuster reform, that would lessen the important role of the United States Senate in the long and rich history of American governance.

    Posted in First Principles [slideshow_deploy]

    3 Responses to An Astute Perspective on Filibuster Reform

    1. LibertyAtStake says:

      Good article and nice conclusion. The filibuster rule is in perfect concert with the Founders' design of the Senate as a deliberative firewall against political winds. And going back to 2005 – as far as I'm concerned, the reform we should be considering to bring judicial nominations back in line with original intent is – requiring a 2/3 super majority on the floor for confirmation – because the judicial branch appointments have become politicized in ways the Founders could never have imagined.

      http://libertyatstake.blogspot.com
      "Because the Only Good Progressive is a Failed Progressive"

    2. nancy b says:

      Then sir, a filabuster should have to stand and stay and pee in a bucket. Watch Mr. Smith Goes to Washington. That's what we need.

    3. Pingback: U.S. Senate to Consider Filibuster Reform | Pax Americana Institute

    Comments are subject to approval and moderation. We remind everyone that The Heritage Foundation promotes a civil society where ideas and debate flourish. Please be respectful of each other and the subjects of any criticism. While we may not always agree on policy, we should all agree that being appropriately informed is everyone's intention visiting this site. Profanity, lewdness, personal attacks, and other forms of incivility will not be tolerated. Please keep your thoughts brief and avoid ALL CAPS. While we respect your first amendment rights, we are obligated to our readers to maintain these standards. Thanks for joining the conversation.

    Big Government Is NOT the Answer

    Your tax dollars are being spent on programs that we really don't need.

    I Agree I Disagree ×

    Get Heritage In Your Inbox — FREE!

    Heritage Foundation e-mails keep you updated on the ongoing policy battles in Washington and around the country.

    ×