The Bygone Days of Majority Rule in the U.S. Senate

The days when a bill could be passed by a vote of less than 60 senators is becoming a relic of a saner past. It is not just controversial matters but virtually all matters that now require a three-fifths vote in the U.S. Senate.

The ways for a minority to defeat a detested bill are so far-reaching that it is a virtual miracle for a bill to traverse the gauntlet of obstacles to achieve final passage. Two days are needed to vote on the motion to end the filibuster. If the vote is successful, the minority is still guaranteed thirty hours of further “debate;” however, a single bill can be filibustered several more times. The motion to proceed to a filibuster can be filibustered, as can the effort to amend the bill. Then the vote on the amendment can be filibustered. The vote to go to conference with the U.S. House can be filibustered, as can the motion to disagree with the conference action. The vote on the post-conference action can be filibustered and then every further step can be filibustered. [1]

Thomas Jefferson wrote in his Manual of Parliamentary Practice that “where not expressly provided,” the “voice of the majority decides.” The Constitution expressly specifies the occasions in which majority rule is considered to be insufficient: removing the President, expelling members, overruling a Presidential veto of a bill or a resolution, ratifying treaties and amending the Constitution. Later amendments have added a few specific exceptions. [2]

The first filibustewr — not called so at the time — took place in 1841 over the awarding of a printing contract. Until the First World War, as Gregory Wawro and Eric Schickler contend in “Filibuster: Obstruction and Lawmaking in the U.S. Senate,” filibusters were not “pushed to the extreme of killing priority bills favored by a clear floor majority.”

From 1841 to 1917, the majority sought cloture of a filibuster 58 times; however, since the start of President Obama’s first term, it has sought cloture more than 250 times. This is likely an undercount, as it misses all of the times a majority just gave up before a vote. [3]

Senate Republicans love of the filibuster is a recently consummated affair. In 2005, the Republican Senate Majority Leader, Mitch McConnell (R-Kentucky), threatened to use the “nuclear option” and exempt all judicial nominees from filibusters. Both of George W. Bush’s major tax cuts were passed by simple majority vote.

At the center of the filibuster controversy is Rule XXII, which originally established a two-thirds vote to end a filibuster — later changed to three-fifths. There is, however, an out on Rule XXII, because if the Vice-President, acting as presiding officer of the Senate, has the agreement of 51 senators, he can override Rule XXII and permit changes to be made in Senate rules by a simple majority. This can be done on the first day a new Congress meets or any day thereafter.

The latest effort to change filibuster rules ended with a whimper, not a bang, according to many progressives outside the U.S. Senate. Senate Majority Leader Harry Reid (D-Nev.) reached an agreement with Mitch McConnell that permits the minority party to present at least two amendments to a bill, allow lower-level judicial appointments to pass through without a filibuster and make some other procedural changes. Even fervent supporters of a major lowering of the bar to end a filibuster, such as Elizabeth Warren (D-Mass.) and Jeff Merkley (D-OR), the leader of the anti-filibuster effort, tried to find some good in Reid’s compromise by calling it a step forward. Senator Bernie Sanders (I-VT) was the only member of the Democratic caucus to vote against the filibuster compromise but even he called it a step forward.

Bill Press, host of the Bill Press Show, was a prominent voice in calling Reid’s efforts a sellout. Virtually all the callers and twitterers to the show agreed with Press.

Footnotes

[1] Ezra Klein, “Let’s Talk,” The New Yorker, January 28, 2013.

[2] Ibid.

[3] Ibid.

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