Remove the Filibuster from the Senate Rules

Trying to squeeze any sort of peace on earth out of our government
in Washington has been a steep uphill climb for years. For the most
part we no longer have representatives in Congress, because of the
corruption of money, the weakness of the media, and the strength of
parties. There are not 535 opinions on Capitol Hill on truly important
matters, but 2. Our supposed representatives work for their party
leaders, not for us. Luckily, one of the two parties claims to want to
work for us.

When the Democrats were in the minority and out of the White House,
they told us they wanted to work for us but needed to be in the
majority. So, in 2006, we put them there. Then they told us that they
really wished they could work for us but they needed bigger majorities
and the White House. So, in 2008/2009, we gave them those things, and
deprived them of two key excuses for inaction. We took away the veto
excuse and the filibuster excuse.

This is not to say that either excuse was ever sensible. The two
most important things the 110th Congress refused to do (ceasing to fund
illegal wars, and impeaching war criminals) did not require passing
legislation, so filibusters and vetoes were not relevant -- in fact,
the Senate and the president were not relevant. But the Democrats in
Congress, and the Republicans, and the media, and the White House all
pretended that wars could only be ended by legislation, so the excuses
for not passing legislation loomed large. The veto excuse disappeared
on January 20th. The filibuster excuse could have been gone by January
6th if Senator Harry Reid had wanted it gone. But it's gone now.

The filibuster excuse works like this. Any 41 senators can vote No
on "cloture", that is on bringing a bill to a vote, and that bill will
never come to a vote, and anything the House of Representatives has
done won't matter. Any of the other 59 senators, the 435 House members,
the president, the vice president, television pundits, and newspaper
reporters can blame the threat of filibuster for anything they fail to
do.

Now, the Senate itself is and always has been and was intended to be
an anti-democratic institution. It serves no purpose that is not or
could not be more democratically accomplished by the House alone. The
Senate should simply be eliminated by Constitutional Amendment. But the
filibuster is the most anti-democratic tool of the Senate, and can be
eliminated without touching the Constitution, which does not mention
it. If you take 41 senators from the 21 smallest states, you can block
any legislation with a group of multi-millionaires elected by 11.2
percent of the American public. That fact is a national disgrace that
should be remedied as quickly as possible.

The filibuster was created by accident when the Senate eliminated a
seemingly redundant practice of voting on whether to vote. Senators
then discovered, after a half-century of surviving just fine without
the filibuster, that they could block votes by talking forever. In 1917
the Senate created a rule allowing a vote by two-thirds of those
voting, to end a filibuster. In 1949 they changed the rule to require
two-thirds of the entire Senate membership. In 1959 they changed it
back. And in 1975 they changed the rule to allow three-fifths of the
Senators sworn into office to end a filibuster and force a vote.
Filibustering no longer requires giving long speeches. It only requires
threatening to do so. The use of such threats has exploded over the
past 10 years, dominating the decision-making process of our government
and effectively eliminating the possibility of truly populist or
progressive legislation emerging from Congress. This has happened at
the same time that the forces of money, media, and party have led the
Democrats in both houses to view the filibuster excuse as highly
desirable, rather than as an impediment.

Now the Democrats have 60 senators (58 Democrats plus 2 independents
caucusing with them -- one leading the way, the other bringing up the
rear). Perhaps this moment when a filibuster could be overcome by
partisan power would be an opportune time to permanently overcome it
for whatever forces dominate the Senate in the future by changing the
rules to get rid of the thing. The Democrats have lost the excuse now.
Every policy they enact that strays from majority opinion in the
country has to be blamed on something other than the filibuster. So,
with nothing to lose, why not rid us all of this cancer on our
democracy?

Were the Democrats serious about eliminating the filibuster excuse,
they would have taken steps over the past six months to do so. The
President could have appointed Republican senators from states with
Democratic governors to key jobs without cutting deals to ensure
replacement by Republicans. Congress could have given Washington, D.C.,
representation in both houses of Congress or at least tried harder to
do so. Or the Senate could have done what it could still do and should
seize the current moment to make happen. It should simply change Senate
Rule 22, which reads in part:

"'Is it the sense of the Senate that the debate shall be
brought to a close?' And if that question shall be decided in the
affirmative by three-fifths of the Senators duly chosen and sworn --
except on a measure or motion to amend the Senate rules, in which case
the necessary affirmative vote shall be two-thirds of the Senators
present and voting -- then said measure, motion, or other matter
pending before the Senate, or the unfinished business, shall be the
unfinished business to the exclusion of all other business until
disposed of."

This would seem to suggest that it takes 60 senators to block a
filibuster and 66 senators (if 100 are present, otherwise fewer) to end
the power of 60 senators to block filibusters. But that's not the whole
story. William Greider recently explained:

"In 1975 the filibuster issue was revived by
post-Watergate Democrats frustrated in their efforts to enact popular
reform legislation like campaign finance laws. Senator James Allen of
Alabama, the most conservative Democrat in the Senate and a skillful
parliamentary player, blocked them with a series of filibusters.
Liberals were fed up with his delaying tactics. Senator Walter Mondale
pushed a campaign to reduce the threshold from sixty-seven votes to a
simple majority of fifty-one. In a parliamentary sleight of hand, the
liberals broke Allen's filibuster by a majority vote, thus evading the
sixty-seven-vote rule. (Senate rules say you can't change the rules
without a cloture vote, but the Constitution says the Senate sets its
own rules. As a practical matter, that means the majority can prevail
whenever it decides to force the issue.) In 1975 the presiding officer
during the debate, Vice President Rockefeller, first ruled with the
liberals on a motion to declare Senator Allen out of order. When Allen
appealed the "ruling of the chair" to the full Senate, the majority
voted him down. Nervous Senate leaders, aware they were losing the
precedent, offered a compromise. Henceforth, the cloture rule would
require only sixty votes to stop a filibuster."

Greider proposes reducing to 55 percent of the Senate the number of
senators needed for cloture. I propose reducing it to 50 percent plus
one. Either way, nobody is proposing that a minority be empowered to
decide anything, only that a majority finally be permitted to (even to
the extent allowed by an anti-democratic body like the U.S. Senate in
which both Wyoming and California have the same number of senators).

As long as the filibuster remains on the books, the Democrats will
claim that they cannot control all 60 of their senators. Never mind
that we were told for years to shut up about peace and justice and work
and contribute to the election of 60 Democrats after which joy and
harmony would flow out of the Capitol. We will now be told that
renegades cannot be controlled. And I don't want to fight that, because
I don't want parties to be able to control their members. I don't want
their members straying in order to support minority interests, like
pulic funding of private health insurance companies. But I do want
members straying in order to support majority interests, like defunding
wars.

Party dominance is as corrupting a force in our legislature as the
filibuster itself, and therefore offers not only a weak solution for it
but an undesirable one. Senator Bernie Sanders has asked the other 59
senators to commit to stopping any filibusters. And so he should. But
he should also ask Senator Reid to put to a vote for decision by 51
senators (or 50 and the Vice President) a simple rule change to empower
majority rule in a body that cannot without taking this step make any
plausible case for the desirability of its continued existence.

This article has been updated from a version I published in December.