Opinion: It's Time to Reform the Filibuster

There are serious issues our country needs to be resolving, yet our Senate has a paralyzing procedure that stands in the way of progress.

There are national debates we need to conduct, yet the Senate is held captive by a measure that, under the pretense of extending debate, actually prevents debates from ever taking place. Furthermore, there are times when a broad consensus exists across party aisles, yet secret steps allow individual Senators to scuttle this unity.

For all these reasons, the efforts of some Senate Democrats, led by Tom Udall (D-NM), Jeff Merkley (D-OR) and Tom Harkin (D-IA), to reform the rules of the Senate are critical to ensuring the Senate is a functional body in today’s government. The shorthand for their effort is “filibuster reform,” but it also includes reforms to “secret holds” and confirmation processes for uncontroversial nominees. This push is about more than the filibuster. It’s about making sure the Senate is doing the business of the American people.

As Solomon Kleinsmith recently wrote at It’s A Free Country, he may agree with many of these reforms — like eliminating the secret hold and the need for 60 votes to start a debate. He has two concerns though about filibuster reform itself, which is rightly getting the lion’s share of the attention. One, he worries this is a short-sighted move by a slim Democratic majority that will backfire when they end up in the minority again, maybe within two years. Two, he is concerned that only requiring a majority vote to change these rules is a heavy-handed move that sets bad precedent.

Unfortunately, precedent with regard to the filibuster has already been discarded, allowing a new set of obstructionist norms to stymie Senate productivity. It is better to make the right reforms now — reforms that will protect the rights of whomever is in the minority — than suffer a historic level of obstructionism now only to face radical restructuring of the rules when the right-wing takes the majority back.

By now, the argument about the filibuster is familiar. It’s not in the Constitution. It is a feature of Senate rules to ensure the minority has its voice heard. While made famous by the exhausting idealism of Jimmy Stewart’s protagonist in “Mr. Smith Goes to Washington,” the filibuster was more notorious in the Senate for being the chief obstacle against civil rights legislation.

The requirement used to be 67 votes to end a filibuster, and in the 1970s, that was changed to 60 votes. The filibuster is not a Platonic ideal of how to ensure all sides are heard; it’s one imperfect mechanism. It’s been fixed before, and it needs to be fixed again.

What’s more important than how it came about is the way it’s now abused. The filibuster was rarely used for most of American history. More recently, however, the Republican minority has used the filibuster to block debate and votes more frequently in four years than it had been used from the 1920s to 1980s combined, as Sen. Tom Udall likes to point out.

A minority needs to be heard. There needs to be suitable time to debate an issue. There must be safety measures to ensure amendments. But there should not be a method by which as few as 40 Senators disrupt the entire business of the Senate.

While Solomon makes a point that Democrats shouldn’t act rashly lest they reap what they sowed when they find themselves in the minority again, the current reform effort is far from vindictive and isn’t dismissive of minority rights. It doesn’t reduce every vote to a simple majority. There are proposals to lower the number of votes required to overcome a filibuster, as was done in the 1970s. Other proposals suggest that over time, the required number of votes diminishes, ensuring an appropriate time period for a minority view to make its case, without allowing for indefinite paralysis. There are also ideas for ensuring amendments by the minority party get heard. These are rules that would protect the Democrats in the minority as well.

Because after all, real reform shouldn’t work for a period as brief as two years or for just one party — it needs to work regardless of the fluctuation of political fortune.

However, if the Democrats don’t act, they face two problems: continued obstruction for the next two years, and the bigger threat of radical “reform” if the right-wing seizes the Senate. Given that the Republican Party has recently gone to unprecedented lengths to disrupt the democratic process with its extreme use of the filibuster, what guarantee is there that the same party will respect democratic goals if it takes back the majority? Democratic restraint now hardly ensures Republican restraint in two years. If a Tea Party-infused majority takes the Senate, the reforms may be far less balanced, and the protections for minority views far less secure.

Then there’s the argument that procedure reform would be a better process with larger bipartisan support than a simple majority. Bipartisanship always “looks” better, but we’ve seen the glee the Republican Party takes at being the “Party of No,” as their moderating members retire or shy away from cooperation when faced with Tea Party challenges. There is a chance to make smarter rules that would work regardless of who is in the majority and who is in the minority. If the effort can’t attract Republican support, then let the reforms speak for themselves. Pass them — and if they are wisely constructed, those reforms will look good to Senators on both sides of the aisle in two years, regardless of political fate.

More importantly, they’ll look good to the American people who will no longer wonder about all the work the Senate isn’t getting done.

Justin Krebs is a political organizer and writer based in New York City. He is the founder of Living Liberally, a nationwide network of 250 local clubs that create social events around progressive politics, and author of "538 Ways to Live, Work and Play Like a Liberal."