The U.S. Senate should revise its rules on filibusters and consent for judicial nominations in order to stop the growing trend of gridlock and indecision, argues a new report from the Council on Foreign Relations.
According to the report, over the past two decades, “[r]egular order has been breaking down in the Senate.” The document’s author, Kay King, a former congressional staffer and now vice president of Washington Initiatives at CFR, pointed to legislative devices used to limit debate.
King specifically highlighted the abuse of the filibuster to shut down progress on legislation in the Senate. “A growing number of filibuster threats have led the leadership in both parties, when in the majority, to limit opportunities for debate and amendment of legislation that could be filibustered,” she wrote.
Senate rules require either “unanimous consent” or at least a supermajority of 60 votes for “cloture,” or an end to debate, so a bill may proceed to a vote. Filibuster rules allow a single Senator to block or delay Senate business under cover of extending debate.
This procedure came into practice only in the 1970s, when Senate rules were changed to accommodate objections by the minority party. Between 1985 and 2006, King reported, the number of filibusters grew from 40 to 68. After the Democrats took control of Congress in 2006, however, Republicans used the filibuster a record 139 times.
In the past two years, that number grew to 250, according to ThinkProgress.org, grinding action in the Senate to a snail’s pace. This means that a disproportionate influence by a minority of U.S. Senators – representing an even smaller minority of the U.S. population. In the 111th Congress, 41 Republicans represented only about one third of Americans, and those who usually supported wasteful and harmful filibusters even fewer.
This abuse of the filibuster has resulted in stagnation on meaningful legislation. Filibuster threats meant that the economic stimulus package was smaller and more indirect than it could have been. The filibuster effectively killed the most cost-efficient and least-expensive portion of President Obama’s plan for health reform, the public option. It blocked meaningful labor law reform that would have increased democracy in the workplace.
It has stalled progress on civil rights legislation, such as passage of the repeal of anti-gay “don’t ask, don’t tell” rules for the military and passage of the DREAM Act, which would provide a path to legal status for tens of thousands of undocumented immigrant youth through public service. It has stalled climate change legislation that would reduce pollution that causes global warming and creates important new investments in clean energy jobs. It has forced a delay on the Paycheck Fairness Act, which would close the gender wage cap, as well as prevented passage of the Employment Non-discrimination Act, which would eliminate job discrimination based on sexual orientation and gender identity.
In addition, Republican abuse of filibusters weakened or blocked financial aid to small businesses and states. It delayed funds to extend unemployment benefits to the country’s 15 million officially unemployed workers. It stopped stronger regulations on big polluters like BP and Wall Street con artists.
The U.S. Senate was created as an inherently conservative institution to slow down real change by checking the will of the majority. The reason why it has been referred to as the “upper” house of Congress is that historically it has represented the class politics of the richest Americans. Because the filibuster isn’t a Constitutional issue, the Senate itself can vote to change its own rules and decide on the procedures it will use to pass laws. It is time for a change, and Democrats in the Senate need to take the lead on making that change as the new session of Congress opens in January.