November 25, 2013, 05:11 pm
THE HILL PUNDITS BLOG
End the 60-vote fake filibuster
By Peter Fenn
Jimmy Stewart in “Mr. Smith Goes to Washington,” this isn’t. The days of bringing in the cots for all-night filibusters that happened when I was a Senate page are long gone. Holding the floor for days and weeks to fight for a cause are not remotely in the cards under current rules.
What we have is a radical change where a supermajority, 60 votes, is needed to pass any piece of serious legislation and even some not-so serious. If there is any opposition, all you have to do is breathe the word filibuster and the Senate is brought to its knees.
This is not the way the Senate operated until just very recently. Since the filibuster rule was established in 1917, it was used only 35 times in the first 50 years. In the last few years, the Senate averaged a motion for cloture once a day when it was in session.We have the rise of the fake filibuster that came about as a result of a 1975 change in the rules that set the threshold at 60 votes, from the previous two-thirds of those present and voting. The new rules didn’t require actually holding the floor and allowed other Senate business to continue. Thus, we now have a filibuster that is not a filibuster.
Think back to the real filibuster. Sen. Strom Thurmond (R-S.C.) holds the record of 24 hours, 18 minutes trying to stop the civil rights bill of 1957. The Senate filibuster lasted 57 days that year.
The filibuster was used by the minority only in extraordinary circumstances.
It was never conceived by our Founding Fathers to justify a supermajority to pass legislation or approve nominees as part of the advice and consent process.
According to the Constitution, there is a very limited place for a supermajority: impeachment, eviction of members, veto overrides, and votes on treaties and constitutional amendments. That is it. It’s not needed to rename a post office, as many of us joke.
For two centuries, the Senate abided by majority rule. The acceptance of the 60 vote supermajority is a very new phenomenon and very dangerous. It has nearly paralyzed the institution and for some strange reason been treated as acceptable by the press.
Sen. Harry Reid (D-Nev.) was right to say “enough.” This has gotten out of hand, especially for presidential appointments.
But it is time now to institute real reform. End the fake filibuster. If you want to keep the 60-vote threshold, then make it a real filibuster where the minority has to keep the floor, shut down the Senate, because they believe their cause is so great.
The political party that chooses such action will pay the price if voters don’t believe their actions are justifiable.
Now, there is no price to pay because there is no filibuster. There is only the tyranny of the minority.
Bottom line: Consider re-instituting the real filibuster or changing how it is enforced, along the lines of legislation by Sen. Tom Udall (D-N.M.) and others. But, please do something to help end the gridlock.