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Executive Summary
Frank Wright, Ph.D., President/CEO
March 12, 2010 The latest but rather quiet battle du jour on Capitol Hill is the idea of changing the Senate filibuster rules. The term “filibuster,” which derives from a Dutch word meaning “pirate” or “plunderer,” has a long and interesting history. In our nation’s early years, both House and Senate Members could filibuster, a procedural method used to prevent a vote on a piece of legislation. As more states were added to the Union and the House of Representatives grew in size, it became unwieldy in that chamber and so the House rules were re-written to eliminate the option. The Senate, however, continued to be relatively small, and had already distinguished itself, per the Founders’ intentions, as the “more deliberative” body. As such, the theory was that any Senator should be allowed to speak for as long as they wanted to speak, on any given issue. This ability to "talk a bill to death", as it has often been called, became the filibuster as we know it.
As far back as the mid-Nineteenth Century, Senators have decried the use of the filibuster when it did not suit their own political aims. Yet the concept of being able to stop a filibuster remained in the consciousness of some Senators, and in 1917, the system of “cloture” was first created at the apparent urging of President Woodrow Wilson. Adopting Rule 22, the U.S. Senate was allowed to end all Floor debate on a legislative matter by taking a two-thirds majority vote – a cloture vote. Though this modification of the filibuster was made in 1917, it was not first used until 1919 when the Senate used it to stop a filibuster against the Treaty of Versailles. Despite the Senate’s newfound power, cloture votes were not frequently won because the two-thirds majority was very difficult to obtain. So in 1975, after decades of effort at “cloture reform,” the Senate once again changed its own rules to require a three-fifths vote for cloture. Instead of needing 67 votes, the party hoping to end a filibuster only needed 60 votes. That is the same rule still being applied today. This seemingly arcane bit of history is extremely significant for several reasons. Senators have the legislative power to filibuster almost anything – a Supreme Court nominee, a federal judicial appointee, a military appropriations bill, social policy legislation – most things can be stopped by a Senate filibuster. Having the ability to end a filibuster is therefore the most powerful weapon a party leader could wield. It goes beyond the collegial system and far beyond the desires of constituents. If you can stop a filibuster and force a vote on a nominee or piece of legislation, you have the ultimate power in the U.S. Senate, especially since a powerful Senate can stop legislation from the House of Representatives or undermine the will of a popular President. Now apply this information to today’s political landscape. Both chambers of Congress are currently controlled by the Democrat Party, and the House of Representatives is, in general, more aligned with that party’s stated agenda. Yet the Senate is much more difficult for party bosses, or the Executive Branch, to control. Such control would be much easier if the filibuster was changed, so it’s little surprise that reports this week demonstrate that the idea is alive and well. In fact, two days ago, Senate Majority Leader Harry Reid (D-NV) pledged “filibuster reform” during a speech given at the Progressive Media Summit on Capitol Hill. “…[W]e’re going to take a look at the filibuster,” said the Majority Leader. “Next Congress, we’re going to take a look at it. We are likely to have to make some changes in it, because the Republicans have abused that just like the spitball was abused in baseball and the four-corner offense was abused in basketball.” Sen. Chuck Schumer (D-NY), who chairs the Senate Rules Committee, spoke right after Leader Reid, adding: “The Rules Committee is going to start holding hearings on how to undo the filibuster rule.” After their speeches, Chairman Schumer reportedly told The Huffington Post that the hearings would begin in two or three weeks. Since the real changes to the filibuster will probably not take place during this Congress, legislation that is critical to the President or the Democrat Party, for example, may still be subject to an organized filibuster through the end of this year. In January of 2011, however, everything may change. Since 1917, the theory of a “Constitutional Option” has been debated now and again in the Senate. This theory claims that the Senate is not a “continuing body,” but rather, per Article I Section 5 of the Constitution, a legislative body that may re-write its rules at the beginning of each new session. Following that logic, and assuming that the Democrat party retains its majority through the 2010 elections, Vice-President Joe Biden will preside over the new Senate in January 2011, and as President of the Senate he will declare that the new session of Congress (112th) is in order. He may then attempt to declare that new Senate rules should be drafted, rules that would no doubt include a complete change in the filibuster process, as already prepared following Sen. Schumer’s committee hearings this year. Here’s the critical part: if this parliamentary maneuver succeeds, Senators would be able to appeal the decision for a rules change, but their appeal would most likely be subject to a simple majority vote – a point argued by Sen. Ted Kennedy in 1975 during debate in the 94th Congress. Thus a simple majority (51 Senators) may be able to use a parliamentary procedure, available at the beginning of a new Congress, to force rules revisions that would end the real filibuster forever. The theory itself has been debated for almost one hundred years; it may soon become reality. It is not difficult to forecast the usefulness of such “filibuster reform.” For example, if health care legislation does not pass in this Congress, a filibuster-less 112th Congress provides two additional years (and the last two years of President Obama’s first term) in which to pass the legislation with muted minority dissent. Judicial appointees would pass more easily, as would any Supreme Court Justices that the President might nominate. In a system where the President and Congress hail from the same political party, power would flow toward the Executive and away from Congress. One would hope that any honest political scientist or student of history, regardless of his or her own political affiliation, would forecast danger in this paradigm shift. Our country remains the most free nation in the world because of the particular genius our Founders infused into the system: tripartite governance. If the system of checks and balances is seriously eroded, then the very fabric of our nation is at risk. Senators absolutely must retain their ability to slow the fast engines of populist change that often sweep through the House of Representatives, or the Executive branch, or both. To completely adjust the throttle of the current system could spell disaster. [“Filibuster and Cloture,” Senate Historical Office, senate.gov; Sam Stein, “Harry Reid Pledges Filibuster Reform,” The Huffington Post, March 10, 2010, 1:20 p.m.; Max Fisher, “Can Reid Kill the Filibuster?” The Atlantic Wire, March 11, 2010, 9:08 a.m.; Christina Bellantoni, “Reid: Time To Change the Filibuster,” Talking Points Memo, TPM.com, March 10, 2010, 1:19 p.m.; Martin B. Gold & Dimple Gupta, “Constitutional Option To Change Senate Rules And Procedures: Majoritarian Means To Over Come The Filibuster,” Harvard Journal of Law & Public Policy, Vol. 28 Number 1, Winter 2005.] The President’s Column was prepared with the valuable research and writing assistance of Laurel A. MacLeod. Washington Next Week
FCC Broadband Plan Released The FCC’s long awaited National Broadband Plan will be publicly released on March 17, 2010, after a one-month delay. Congressional staff, however, will receive an early preview and briefing by Blair Levin and other broadband staff from the Commission on March 12th. Broadcasting and Cable reported on Wednesday that a briefing by the FCC’s broadband team “will give an overview of working recommendations on topics including spectrum, adoption, affordability, USF and Public Safety and take questions about the upcoming plan release…" The FCC will also hold an Open Commission meeting on the subject, Tuesday, March 16th at 10:30 a.m. It is titled, “A National Broadband Plan for Our Future.” The agenda states that the Commission will consider a Broadband Mission Statement containing goals for U.S. broadband policy. For more information, log on to www.fcc.gov. [John Eggerton, “Hill Getting Broadband Plan Pre-Briefing March 12, FCC to update staffers ahead of March 16 public meeting,” Broadcasting & Cable, March 10, 2010, 9:56 p.m.] |
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