Thursday, April 29, 2010

Senate Committee Hearing - The History of the Filibuster

On April 22nd, the Senate Rules Committee held its first of a projected series of hearings on the filibuster.  The hearing focused on the filibuster's history and evolution as a rule and practice.  Witnesses included Professor Professor Sarah Binder (George Washington University), Robert Dove (former Senate Parliamentarian), Stanley Bach (former Library of Congress specialist on Senate procedures) and professor Greg Wawro (Columbia).

Chairman Charles Schumer (D-New York) opened by calling the current practice a "strait jacket" that is increasingly making the Senate a body where 60 votes is needed to accomplish more and more rather than the traditional majority of members present and voting.  He made clear that this had occurred under both parties and that the purpose was to determine whether changes were necessary rather than assigning blame (noting that he had likely made many anti-reform statements when Democrats were in the minority).

His Republican counterpart, Senator Robert Bennett (R-Utah), however, committed himself to defending the filibuster, noting that it gave the minority a "voice" and served as a check against one party rule even when that party held the presidency and majorities in both houses of Congress.  He was joined in this sentiment by Senators Robert Byrd (D-West Virginia), Republican Leader Mitch McConnell (R-Kentucky) and Pat Roberts (R-Kansas).

Only Senator Tom Udall (D-New Mexico), a leading advocate of reforming the rules, called for reforming not only the filibuster, but other related rules as well.

The statement of members and witnesses can be viewed here as well as some video of the hearing.

Just a  few highlights:
Dove: the filibuster is very characteristic of the Senate's role in our government, which is to slow consideration of measures and ensure thorough deliberation before enacting laws.
Bach: until 1917 the Senate never provided means to limit debate.  The trend towards increased filibusters is part of a larger trend of other devices employed by members to wring concessions such as the "hold" (blocking nominations from being voted on), more contested "motions to procced," etc.  In the past, a filibuster required members to stay on or near the floor and precluded anything else from being done.  Today, a Senator just files a notice with the appropriate leadership offices and the Senate agrees not to move forward.
Wawro: today's filibuster is a different animal than the one historically employed by the Senate.  In the past a determined majority could wear down a filibustering minority.  Modern practice does not allow for this, making the filibuster less a tool of delay as in years past rather than the 60 vote super-majority requirement it is today.

 A few things we might conclude then:

* The filibuster is neither a constitutional mandate nor a deliberately designed provision to protect the minority as some would have us believe.  Rather, it seems to have developed organically under the Senate's rules, which provided no means to terminate debate.  Further, today's filibuster is different not only in quantity, but quality as well, and something past generations of Senators wouldn't have recognized.  Because its operations imposes less of an imposition on the Senate and its members, which means it may be used less sparingly.

* Even so, the 60 vote super-majority requirement of today's Senate may simply be the contemporary manifestation of the founder's intent and design that the Senate would ensure full consideration of measures and guard against hastily conceived laws.

* Given the other procedural trends, perhaps the filibuster problem is actually a symptom rather than a cause of the Senate's ills - one implication is that these hearings should be expanded to look at a broader range of Senate procedural issues.

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