Fixing the Broken Senate

By Rob Schwarzwalder Published on May 21, 2017

When I served on the staff of Senator Dan Coats in the 1990s, I found that the U.S. Senate can be almost like a family. Friendships often cross party lines. Harry Reid and Rand Paul were buddies. Orin Hatch and Ted Kennedy were close friends.

Yet, while friendships are valuable, they can’t bridge the deep political divide in today’s Senate. That’s where the rules the Senate has made for itself come in. Under those rules, 60 votes are needed to bring any legislation to the full chamber for a vote. This is called the “legislative filibuster.”

What Ever Happened to Bipartisanship?

As the New York Times explains, “In recent years, as partisanship has escalated, the Senate has required a 60-vote majority for almost any controversial legislation to overcome a filibuster. Gone, for the most part, are bipartisan quorums that used to pass large and complex laws with simple majorities.”

This is about more than party loyalty, or men and women on opposite “teams” who refuse to work together because one wants to “outscore” the other. It is about differing views of the Constitution, the role of government, and the kind of country America is and should be. It is about a clash of values and beliefs and the political decisions that flow from them. That’s why, from abortion to taxes, the Senate looks like a logjam.

In modern politics, the intention of the legislative filibuster — forcing members to work things out — has been lost.

Is it time to get rid of the legislative filibuster? Is it time to allow the passage of key bills with a simple majority of “50 percent plus one”?

Such a change would follow Harry Reid’s end to the filibuster rule on lower federal court appointments in 2013 and Mitch McConnell’s end of the Supreme Court nominee filibuster rule earlier this year.

The Senate Used to be a Place for Calm Debate

Ending the legislative filibuster would, as former Senator Byron Dorgan, D-N.D., said recently, “change the character of the politics of America. The filibuster is a set of brake pads of the speed of the passion of the moment. The Senate is the place where cooler heads prevail and you need a larger group of people to find common ground.”

He is correct about what the Senate should be. “Common ground” is a nice idea. But that ground seems to be shrinking by the day.

The Senate was intended by the Founders to be a place for calm debate. The 60-vote rule has required people with competing convictions to find the compromises needed to keep our government up and running.

Now, though, the intention of the legislative filibuster — forcing members to work things out — has been lost. Instead, the 60-vote rule has become a political club used by one party against the other. It means that much of the time, the minority rules.

Is It Time for the Filibuster to Retire?

The danger in ending the legislative filibuster is great. To again quote the New York Times, “both parties … understand the profound and lasting effect that a party with power unchecked by the minority could have when it comes to lawmaking.”

In recent years, the minority is “checking” way too much. It is true that if the legislative filibuster was ended, public policy could resemble a game of ping-pong. A majority enacts a bill in one session; following the next election, a new party in power undoes it. This would create economic chaos, political instability and an increasingly angry citizenry.

The Senate, a chamber whose whole purpose has been to slow down popular passion, would become like the House of Representatives — only with longer terms for its members. As Senator John McCain has asked, if this happens, “Why have a bicameral system?”

I offer no knot-cutting political solution to resolve this dilemma. But it must be resolved. Time is not on the side of America’s future.

He makes a troubling point. But as historian Kevin Gutzman of Western Connecticut University argues, “Abolishing the (legislative) filibuster would clear up confusion about responsibility for Congress’s policy decisions. The duty to govern would fall upon the majority, as it should.”

Conservative pundit Erick Erickson counters,

the filibuster is often the last tool available for conservatives to stop the worst excesses of their own party. The filibuster is how (conservatives) can force their own party to rein in spending and liberal legislation. If you gut the legislative filibuster, you are stopping conservatives from being able to fight for limited government.

That’s just one danger. But our country has multiple pressing needs. Ending the legislative filibuster isn’t just about ending inefficiency but, far more importantly, solving looming problems.

Here’s one example: Most Americans like Social Security. Want it to continue? It must be modernized, soon, or else it will collapse under a growing burden of debt that it can’t sustain.

We cannot wait forever for America’s needs to be met. The road down which the can has long been kicked ends somewhere, and probably sooner than later.

I offer no knot-cutting political solution to resolve this dilemma. But it must be resolved. Time is not on the side of America’s future.

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