Time to Retire the Filibuster [NYT Editorial 1-1-95] (A must read)

The U.S. Senate likes to call itself the world's greatest deliberative body. The greatest obstructive body is more like it. In the last season of Congress, the Republican minority invoked an endless string of filibusters to frustrate the will of the majority. This relentless abuse of a time-honored Senate tradition so disgusted Senator Tom Harkin, a Democrat from Iowa, that he is now willing to forgo easy retribution and drastically limit the filibuster. Hooray for him.

For years Senate filibusters--when they weren't conjuring up romantic images of Jimmy Stewart as Mr. Smith, passing out from exhaustion on the Senate floor--consisted mainly of negative feats of endurance. Senator Sam Ervin once spoke for 22 hours straight. Outrage over these tactics and their ability to bring Senate business to a halt led to the current so-called two-track system, whereby a senator can hold up one piece of legislation while other business goes on as usual.

The two-track system has been nearly as obstructive as the old rules. Under those rules, if the Senate could not muster the 60 votes necessary to end debate and bring a bill to a vote, someone had to be willing to continue the debate, in person, on the floor. That is no longer required. Even if the 60 votes are not achieved, debate stops and the Senate proceeds with other business. The measure is simply put on hold until the next cloture vote. In this way a bill can be stymied at any number of points along its legislative journey.

One unpleasant and unforeseen consequence has been to make the filibuster easy to invoke and painless to pursue. Once a rarely used tactic reserved for issues on which senators held passionate convictions, the filibuster has become the tool of the sore loser, dooming any measure that cannot command the 60 required votes.

Mr. Harkin, along with Senator Joseph Lieberman, a Connecticut Democrat, now proposes to make such obstruction harder. Mr. Harkin says reasonably that there must come a point in the process where the majority rules. This may not sit well with some of his Democratic colleagues. They are now perfectly positioned to exact revenge by frustrating the Republican agenda as efficiently as Republicans frustrated Democrats in 1994.

Admirably, Mr. Harkin says he does not want to do that. He proposes to change the rules so that if a vote for cloture fails to attract the necessary 60 votes, the number of votes needed to close off debate would be reduced by three in each subsequent vote. By the time the measure came to a fourth vote--with votes occurring no more frequently than every second day--cloture could be invoked with only a simple majority. Under the Harkin plan, minority members who feel passionately about a given measure could still hold it up, but not indefinitely.

Another set of reforms, more incremental but also useful, is proposed by George Mitchell, who is retiring as the Democratic majority leader. He wants to eat away at some of the more annoying kinds of brakes that can be applied to a measure along its legislative journey.

One example is the procedure for sending a measure to a conference committee with the House. Under current rules, unless the Senate consents unanimously to send a measure to conference, three separate motions can be required to move it along. This gives one senator the power to hold up a measure almost indefinitely. Mr. Mitchell would like to reduce the number of motions to one.

He would also like to limit the debate on a motion to two hours and count the time consumed by quorum calls against the debate time of a senator, thus encouraging senators to save their time for debating the substance of a measure rather than in obstruction. All of his suggestions seem reasonable, but his reforms would leave the filibuster essentially intact.

The Harkin plan, along with some of Mr. Mitchell's proposals, would go a long way toward making the Senate a more productive place to conduct the nation's business. Republicans surely dread the kind of obstructionism they themselves practiced during the last Congress. Now is the perfect moment for them to unite with like-minded Democrats to get rid of an archaic rule that frustrates democracy and serves no useful purpose.

Here's the other editorials Harkin submitted........

HARKIN: Well, slaying the filibuster dinosaur--and that is what I call it, a dinosaur, a relic of the ancient past--slaying the filibuster dinosaur has also been endorsed by papers around the country, including the New York Times, which just editorialized on this last Sunday; the USA Today; the Washington Post; the Fort Worth Star-Telegram; in my own State, the Des Moines Register, the Cedar Gazette, the Quad-City Times, and the Council Bluffs Non-Pareil.

Mr. President, I ask unanimous consent that those editorials that I just mentioned be printed at this point in the Record.

There being no objection, the material was ordered to be printed in the Record, as follows:

[Page: S33]

Down With the Filibuster
One of the mandates voters gave to Republicans on Nov. 8 was to reform the way Congress operates. There's no better place to begin than with the Senate filibuster.

The filibuster allows a minority to block passage of any bill unless a supermajority of 60 votes in the 100-member Senate can be mustered to overcome it. Republicans used the filibuster liberally in the last few years to tie the majority Democrats in knots.

Next year, with Republicans in the majority, Democrats will be in a position to return the favor. Nevertheless, Iowa Democratic Senator Tom Harkin is right in saying that the Democrats should resist the temptation to `do unto the Republicans what they did unto us.'

Instead, Harkin is urging that the filibuster be tempered. Reform-minded members of both parties should join Harkin's effort. There may have been some justification for the filibuster in its quaint original form, but the modern version of the filibuster has become nothing more than a cost-free device that lets a willful minority thwart the will of the majority, or hold legislation hostage to extort concessions.

The filibuster evolved from the Senate's tradition of unlimited debate. To carry out a filibuster, opponents of a bill had to try, literally, to talk it to death. Those engaged in a filibuster had to be prepared to keep talking around the clock. It required determination and stamina, and the filibustering senators risked arousing the public's anger at their obstructionism. As a result, filibusters were rare.

In recent years, the Senate adopted rules intended to curb filibusters. They ended up having precisely the opposite effect. Filibusters became an everyday tactic. By one count, there were twice as many filibusters in the last two years of Congress than during the entire 19th century.

The new rules established a `two-track' procedure that allows the Senate to continue with other business while a filibuster is under way. All action does not grind to a halt, as it did previously.

The two-track rule made filibusters much easier to use. Stamina is no longer required. Now, all the minority need do is declare its intention to filibuster, and the Senate switches to other businesses. In most cases, the mere threat of a filibuster does the trick. The bill is sidetracked until the majority finds 60 votes.

The modern filibuster gives the minority an absolute veto. It is, quite simply, undemocratic.

Defenders of the filibuster have argued that it is useful in preventing precipitous action. Harkin's proposal addresses that argument by allowing filibusters to delay action, but not stop it completely. Under his plan, the number of votes required to end a filibuster would gradually decline over a period of weeks until, eventually, only 51 votes would be needed.

A truer reform would be to abolish the undemocratic anachronism outright. Harkin's proposal is quite modest. There should be no reasonable objection to it.

--

--

From the Fort Worth Star-Telegram, June 30, 1994

[FROM THE FORT WORTH STAR-TELEGRAM, JUNE 30, 1994]
If you started out to formulate the rules for a legislative body in a new democracy, the last example you would follow would be that of the U.S. Senate.

Things have gotten so bad in the Senate that there is a growing movement to change the rules about unlimited debate--the filibusters that prevent action on legislation.

If extended debate were really used to examine issues and change senators' minds by force of powerful reason, there would be a case for keeping the present rules. But in truth, the Senate's rules are being used to thwart the principle of majority rule and to further individual or partisan political interests to the detriment of the legislative process.

To be sure, changing the cloture rule (which requires 60 votes to end debate and means that a 41-senator minority can effectively shut down the Senate) would not be a cure-all. Republicans this year have perfected the tactic of offering endless amendments to unrelated bills as a means of delaying legislative progress. But tempering the effect of the filibuster would help.

The fate of the western grazing lands fee change was an example of the filibuster at work. In the Congress as a whole, 373 votes out of 535 (70 percent) were in favor, but the majority lost because 44 senators prevented cloture.

This week, a 13-year effort to change product liability laws failed because of a filibuster, just as it had in 1986 and 1992. The 41 senators voting against cloture included archconservatives (Alan Simpson, R-Wyo., Thad Cochran, R-Miss., and Strom Thurmond, R-S.C.) and archliberals (Paul Wellstone, D-Minn., Harris Wofford, D-Pa., and Ben Nighthorse Campbell, D-Colo.) and some in between (such as Bill Bradley, D-N.J., and John Breaux, D-La.). It was a good bill, one that would mean more jobs without sacrificing legitimate consumer interests. Much of the opposition came from trial lawyers. In the end, 57 senators voted for it. Forty-one opponents were enough to kill it. Is that democracy?

The Senate has reached the point where the mere threat of a filibuster can bring the body's work to a screeching halt.

Sen. Tom Harkin, D-Iowa, has suggested a four-vote process that would break this impasses. On the first cloture vote, 60 votes would be needed to end debate, as now. On the next vote, 57 would be required; on the third, 54, and on the fourth, only a 51-vote majority. This would preserve Senate tradition and give the minority plenty of time to plead its case, without allowing a majority to be forever thwarted. Sounds good to us.

Now into the fray comes Action, Not Gridlock!, an anti-filibuster group dedicated to changing the Senate rules. It is led by a bipartisan group of former senators, representatives and other government officials. What they share is believe in majority rule. We wish them godspeed.

--

--

From USA Today, Nov. 25, 1994

[FROM USA TODAY, NOV. 25, 1994]

Rein in the Power to Shut Down the Senate
In 1908, Sen. Robert M. La Follette Sr. of Wisconsin was in the middle of a filibuster when he discovered the eggnog he was drinking for energy had been poisoned. La Follette survived. So did the filibuster.

Indeed, the filibuster today is more poisonous than La Follette ever could have imagined. Instead of providing a dramatic final forum for individuals against a stampeding majority, it has become a pedestrian tool of partisans and gridlock-meisters.

Since 1990, the Senate has averaged at least 15 filibusters a year, more than in all the 140 years before. In 1994 alone, filibusters were used to weaken or kill legislation ranging from lobbying and campaign finance reform to clean water.

You need not be a bow-tied parliamentarian to see the problem. The filibuster allows single lawmakers to derail the Senate's majority--easily, arbitrarily. If the Senate is to honor its deliberative tradition, it must restrain the filibuster.

The modern filibuster vexes Congress two ways. First, opponents must find 60 votes to break it. That's called cloture, and it's almost impossible to achieve. In 1987, only one of 15 votes succeeded--on a proposal for a $12,000 congressional pay raise.

Second, the mere threat of a filibuster is enough to sidetrack a bill. Instead of requiring filibusters to take the floor, Senate leaders just move on to the next issue.

The 60-vote requirement means, in effect, that all legislation must have a supermajority to pass. Yet the Constitution requires supermajorities in only five areas: treaty ratification, presidential veto overrides, impeachment votes, constitutional amendments, and to expel a member of Congress. The framers, who never foresaw the filibuster's abuse, considered supermajorities for other matters and rejected them.

They protected against tyrannical majorities in other ways: by dividing government power among three branches, by splitting Congress into two parts, by guaranteeing basic rights in the Constitution.

Those are ample safeguards. The filibuster, on the other hand, lets a lone lawmaker impose his will, not just amplify his voice.

Solutions? Several.

First, make a filibusterer put his body where his mouth is. Sen. Strom Thurmond prepared for his record-setting 24-hour, 18-minute speech against the 1957 Civil Rights Act by visiting a steam room, hoping to diminish the call of nature once on the floor. Sen. Estes Kefauver strapped on a motorman's friend for his 1950 filibuster. The device was misaligned, though, and only a timely quorum call prevented him from making the wrong kind of splash.

The point is that old-time filibusterers had to have the courage of their convictions. The rigors of floor debate were not undertaken lightly.

Such was the case even when filibusterers formed talking tag teams. In 1960, 18 Southern lawmakers formed two-man partnerships to hold the floor against civil rights legislation. After 157 hours--the Senate's longest continuous session--they prevailed. That was not a proud moment in national lawmaking, but at least the racists were accountable, something today's fiddle-footed rules make unnecessary.

More recently, the government this year had to sell billions of dollars' worth of American gold to a Canadian firm for just $10,000 because filibusterers prevented reform of an 1872 mining law.

Sen. Tom Harkin this week has revived another idea: Gradually lower the number of votes needed for cloture. The first vote would still require 60 `ayes.' But subsequent votes would require 57, then 54, then 51. This could preserve both the dramatic effect of a filibuster and majority rule.

The filibuster is a supervirus in the Senate. It causes massive hemorrhaging of majority rule and the orderly process of legislating. If Senate leaders don't cure themselves soon, they might as well ask La Follett's ghost to, please, pass the eggnog.

From the Washington Post, Nov. 23, 1994

[FROM THE WASHINGTON POST, NOV. 23, 1994]

The Gored Oxen
One of the most comical aspects of politics concerns how high principles about procedural fairness can evaporate when circumstances change. There could be much such comedy in the new Congress as Democrats and Republicans change roles.

In the House, Newt Gingrich's Republicans have assembled a series of reform measures that grew from their experience as frustrated members of what seemed a permanent opposition. They rightly criticized Democratic House leaders for closing off Republican amendments to important bills. Now Mr. Gingrich pledges to change that, even though doing so would let the now-minority Democrats challenge the most unpopular of the Republican majority's proposals. Republicans have also long been in favor of the line-item veto, which would let the president excise particular parts of spending bills he found offensive. Republicans liked this when the Democrats in Congress were responsible for writing the spending bills, since they presumed that Republican presidents would cut out what Republicans saw as `pork.' Now the line-item veto would empower a Democratic president facing a Republican Congress.

In the Senate, the problem is different. Senate rules permit essentially unlimited debate. It takes 60 votes to shut the talking down. That means 41 senators can block a bill and frustrate the will of even an overwhelming majority. In the last Congress, the Democrats were critical of Republican abuse of the filibuster. But now the procedural shoe is on the other foot. It's the Democratic minority that is likely to want to block many Republican measures. Will Democrats keep saying the filibuster is a bad thing? To his credit, one Democrat, Sen. Tom Harkin of Iowa, has done so. He proposes that the two parties agree to new rules. Mr. Harkin would still let the minority slow down consideration of controversial measures, but he doesn't think the minority should ultimately frustrate the majority's will.

It is not even necessary to get to the question of whether the filibuster rule itself should be eliminated to believe that there has been too much abuse of the filibuster in the Senate. The same can be said of the closed rule in the House. We hope Mr. Gingrich sticks to his promise of opening up the House, even if that might sometimes inconvenience his party. Similarly in the Senate, we hope both parties can find a more reasonable accommodation between minority rights and majority rule. Going to the brink every time, on every issue, is not the way a democracy is supposed to work.

--

--

Harkin Earns Bouquet, Brickbat
We have a bouquet and a brickbat for Iowa's Democratic Sen. Tom Harkin.

The bouquet is for advocating limits on the filibuster, a technique used by the minority party in the U.S. Senate to thwart the will of the majority.

The brickbat is for his lukewarm support for the General Agreement on Tariffs and Trade.

Harkin is calling for revision of the filibuster rules that would provide a means for the minority to slow down legislation and allow fuller debate, but at the same time it places limits on the delaying tactic.

Under Harkin's plan, 60 votes would be necessary in the first attempt to halt a filibuster debate.

The second attempt would require only 57 votes. The number would continue to drop on each successive vote until only a simple majority was needed.

Currently, a single senator can tie up legislation endlessly, which Harkin says adds to the deadlock.

Harkin's plan would limit the delay to a maximum of about three weeks.

As American politics becomes more contentious, the filibuster is being used increasingly. But Harkin says there is less need for it.

In the last century when communication was slower, senators felt the need to stall for long periods to allow their objections to reach constituents.

In these days of almost instant communication, voters and others can be alerted to problems in a matter of hours.

We believe the senator is on track and should pursue his efforts. Continuing the current processes is simply obstructionism, whether by Republicans or Democrats.

We are less enthusiastic about the senator's doubts concerning GATT.

Unfortunately, these seem to be based on some vague concerns about ill-defined political horse trading that may be under way by supporters to ensure passage of the measure through the Senate.

Passage in the House seems a surer bet with the strong support voiced by Speaker-designate Newt Gingrich. Gingrich seems to understand the obvious advantages for the U.S. economy and the need for a workable free trade mechanism.

We get the feeling that Harkin may not be sure which direction the political winds are blowing in Iowa, and wants more time to determine the level of support for GATT.

He admits that he will likely face stiff competition for his Senate seat in two years. Given the Republican landslide in Iowa, political caution may become increasingly important for Harkin.

However, we do not believe this is a Republican vs. Democrat issue. Passage of GATT is needed to make sure the United States is a major player in the world.

The death of GATT, which a delay very seriously threatens, could throw orderly world trade into chaos and possibly lead to the emergence of regional trading blocks with barriers against U.S. products.

The impact on the future of the U.S. economy could be disastrous and possibly irreversible.

The argument that senators have not had time to study the GATT document is not compelling. The agreement has been hammered out by representatives of 123 nations over the past eight years.

For a document of such magnitude and importance for open world trade, we wonder why more attention has not been paid by Harkin and others until the last weeks before the vote.

There may be flaws. No document requiring the assent of 123 countries can be perfect. Every nation had to give up some special interest.

But those flaws do not appear sufficient to warrant opposition to congressional passage.

--

--

[Page: S35]

From Quad-City Times, Nov. 22, 1994

[FROM QUAD-CITY TIMES, NOV. 22, 1994]

Harkin Keeps His Promise
Two months ago, Sen. Tom Harkin of Iowa expressed dismay at the way Republicans had repeatedly blocked legislation that was supported by a majority of the Senate.

`I've been in Congress 20 years,' he said, `and this has been the worst year I've seen. The constant use of the filibuster, the gridlock . . . And there's a meanness, a mean spiritedness, I have never seen before.' Harkin said he intended to introduce a bill next year that would greatly curtail the filibustering powers of the minority party.

But in the two months since making those comments, Harkin and other Democrats have become the minority party. With the Republicans now in control of the Senate, Democrats will need every weapon in the arsenal to fight the GOP agenda. So does he still see a need to revise the filibuster rule?

Yes--and his position now carries more weight because of his new status as a member of the Senate's minority party.

Today, Harkin is expected to formally announce his plans to introduce a bill that would allow the filibuster to slow, but not kill, legislation. The bill mirrors legislation once proposed by Bob Dole, and it deserves passage.

And Tom Harkin deserves credit for continuing to advocate this long-overdue change.

--

--

Harkin's Good Idea: Deflating Filibuster
Iowa Sen. Tom Harkin is putting his money where his mouth is.

He is no fan of the filibuster, a device used almost exclusively by minority senators to impede distasteful legislation. So he has offered legislation to create an alternative parliamentary tool.

As it stands, if 41 senators (out of the 100-member chamber) are able to stand firm, they can prevent action on an issue by applying Senate rules allowing them to filibuster. Halting the filibuster requires 60 votes. Tough to get.

Harkin and Sen. Joe Lieberman, a Connecticut Democrat, have co-sponsored a measure that still enables a minority to have its voice, but not in perpetuity.

It is a noteworthy position for minority lawmakers who potentially could lose their only real tool against a dominating majority. (It wouldn't be surprising if both are confident that their upcoming minorityhood is merely an aberration that voters will correct in 1996.) Their plan would give the minority the 60-vote cushion on the first call for cloture, dropping to 57 votes on a second call, 54 on a third and, finally, to a simple majority of 51 on a fourth cloture vote.

Our sense of the filibuster has been that it can be the only way a congressional minority might have a voice in formation of public policy. Majority parties don't have a patent on perfection, but frequently choose to ignore even reasonable suggestions from minority lawmakers. There's often not even a hint of the compromise we should expect in government.

Conceding that the process can be abused, however, perhaps the Harkin-Lieberman approach deserves a thorough hearing. Filibustering is not a constitutional right. It exists only at the pleasure of Congress. Any substitute would have a similarly tenuous existence.

Gridlock has become a buzzword characterizing Congress. Any mechanism to prevent that condition and restore the job description originally given members of Congress would be most welcome.

The anti-gridlock, anti-filibuster concept shouldn't be scrapped without closer scrutiny.

AMENDING PARAGRAPH 2 OF RULE XXV (Senate - January 04, 1995)

Mr. HARKIN. Mr. President, for the benefit of the Senators who are here and watching on the monitors, we now have before us an amendment by myself, Senator Lieberman, Senator Pell, and Senator Robb that would amend rule XXII, the so-called filibuster rule of the U.S. Senate. This is an amendment that was agreed upon--at least the procedure was agreed upon for this amendment--between Senator Dole and myself earlier today under a unanimous consent agreement.

This amendment would change the way this Senate operates more fundamentally than anything that has been proposed thus far this year. It would fundamentally change the way we do business by changing the filibuster rule as it currently stands.

Mr. President, the last Congress showed us the destructive impact filibusters can have on the legislative process, provoking gridlock after gridlock, frustration, anger, and despondency among the American people, wondering whether we can get anything done at all here in Washington. The pattern of filibusters and delays that we saw in the last Congress is part of the rising tide of filibusters that have overwhelmed our legislative process.

While some may gloat and glory in the frustration and anger that the American people felt toward our institution which resulted in the tidal wave of dissatisfaction that struck the majority in Congress, I believe in the long run that it will harm the Senate and our Nation for this pattern to continue. As this chart shows, Mr. President, there has indeed been a rising tide in the use of the filibuster. In the last two Congresses, in 1987 to 1990, and 1991 to 1994, there have been twice as many filibusters per year as there were the last time the Republicans controlled the Senate, from 1981 to 1986, and 10 times as many as occurred between 1917 and 1960. Between 1917 and 1960, there were an average of 1.3 per session. However, in the last Congress, there were 10 times that many. This is not healthy for our legislative process and it is not healthy for our country.

The second chart I have here compares filibusters in the entire 19th century and in the last Congress. We had twice as many filibusters in the 103d Congress as we had in the entire 100 years of the 19th century.

Clearly, this is a process that is out of control. We need to change the rules. We need to change the rules, however, without harming the longstanding Senate tradition of extended debate and deliberation, and slowing things down.

[snip]

It is used, Mr. President, as blackmail for one Senator to get his or her way on something that they could not rightfully win through the normal processes. I am not accusing any one party of this. It happens on both sides of the aisle.

Mr. President, I believe each Senator needs to give up a little of our pride, a little of our prerogatives, and a little of our power for the good of this Senate and for the good of this country. Let me repeat that: Each Senator, I believe, has to give up a little of our pride, a little of our prerogatives, and a little of our power for the better functioning of this body and for the good of our country.

I think the voters of this country were turned off by the constant bickering, the arguing back and forth that goes on in this Senate Chamber, the gridlock that ensued here, and the pointing of fingers of blame.

Sometimes, in the fog of debate, like the fog of war, it is hard to determine who is responsible for slowing something down. It is like the shifting sand. People hide behind the filibuster. I think it is time to let the voters know that we heard their message in the last election. They did not send us here to bicker and to argue, to point fingers. They want us to get things done to address the concerns facing this country. They want us to reform this place. They want this place to operate a little better, a little more openly, and a little more decisively.

[snip]

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.