Filibuster lets minority rule in Senate, should be ended

Now is the time for the U.S. Senate to jettison the filibuster once and for all, dropping a crusty old practice that allows a Senate minority (often representing a tiny minority of voters) to block bills backed by large majorities of legislators and constituents.

The recent gains by Democrats in the Senate provide an opportunity to repeal the filibuster, and progressives in both parties need to seize that opportunity.

Last December, a bipartisan bill to help America’s ailing auto industry was filibustered by a handful of senators who threatened to talk continuously to prevent it from coming to a vote. Those senators didn’t actually have to talk nonstop – they just had to assert their right to do so under Senate rules. Because of that procedural maneuver, the Senate was forced to bring a “cloture” motion to halt debate, and the failure to gain a supermajority of 60 votes for cloture doomed the legislation.

The remarkable thing is that the senators voting for consideration of that bill represented 74 percent of the population of the United States. The filibustering no-votes came from senators representing a mere 16 percent of the voters. The senators representing the remaining 10 percent of Americans were absent or abstained.

The U.S. Constitution was intentionally written to give small states disproportional power in the Senate. That’s why every state, from Wyoming (population 532,668) to California (population 36,756,666), sends two senators to Washington, D.C. That gives a Wyoming voter 69 times more voting power in the Senate than a Californian. But once the senators arrive in the nation’s capital, there’s nothing in the Constitution to suggest that anything besides a majority Senate vote is required to move a bill along.

In other words, while the U.S. Senate is meant to be disproportional (some would say undemocratic), the Constitution did not intend the “double disproportionality” that results from a 60 percent supermajority cloture requirement piled on top of a mechanism that already provides small population states with extra voting power. The filibuster practice is extremely undemocratic, and it’s time to halt it once and for all.

The idea of unlimited debate derives from the ancient Roman Republic, where a senator was permitted to talk forever on any topic. America’s Senate adopted that concept, but it wasn’t until 1841 that the practice was used to stall legislation – in that instance a banking bill opposed by the minority Senate Democrats.

The rule allowing debate to be halted by a 60 percent cloture motion was a significant reform when it was adopted in 1917. But filibusters still continued, most notably when Southern senators tried to block civil rights legislation by nonstop talking. South Carolina Sen, Strom Thurmond won the filibustering prize by talking for more than 24 hours in an unsuccessful attempt to impede passage of the 1957 Civil Rights Act.

Senators are hesitant to repeal the filibuster because any senator sometime, someday, just might want to use the technique to stop legislation he or she views as particularly repulsive. But the practice is used most often by senators from small-population states to stop bills favored by those who represent the vast majority of Americans.

Today’s practice allows senators to stall legislation merely by threatening a filibuster rather than speaking round-the-clock. But under Senate rules, the majority leader may require that members actually speak continuously to block bills, rather than just warning that they might. Harry Reid could and should exercise that power, forcing would-be filibusterers to bring in cots and pizzas for an all-nighter if they want to bully their colleagues by continuous blabbering.

But the simple approach is to amend Senate rules to repeal the senatorial right to talk forever. There’s a lot to get done, and the U.S. Senate no longer has time for forever.

Hugh Spitzer is a public finance attorney in Seattle who teaches constitutional law at the University of Washington School of Law.