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Reforming the Senate: Efforts to limit filibusters may be talked to death

This article first appeared in the St. Louis Beacon, Dec. 23, 2010 - WASHINGTON - In the classic film "Mr. Smith Goes to Washington," a tired but ultimately triumphant U.S. senator played by Jimmy Stewart uses the power of the filibuster to postpone a vote on a rigged bill and prove his innocence on trumped-up charges engineered by a corrupt political machine.

All but the most jaded viewers pull for Stewart -- playing young Sen. Jefferson Smith, the idealistic head of his state's "Boy Rangers" -- as he talks non-stop for hours, reading books aloud and finally collapsing in exhaustion on the floor of the Senate. In the end, he is vindicated and his long-winded tactic wins the hearts of voters and journalists.

But imagine a Senate in which there are no sleepless theatrics, but the mere threat of a Stewartesque filibuster -- backed up by a mere 41 votes in a 100-member chamber -- is enough to block and kill a perfectly legitimate piece of legislation supported by a clear majority of senators and their constituents back home.

That's the reality of today's Senate, in which the number of threatened filibusters and "cloture" votes -- requiring the support of 60 senators to cut off debate -- has risen dramatically in recent years, and the chorus of complaints about such tactics has intensified in about the same proportion.

Filibuster threats become routine

The filibuster threats -- which blocked many pieces of legislation in the just-ended 111th Congress, including last weekend's demise of the DREAM Act immigration bill -- sparked a congressional hearing this year on potential ways to dilute their impact. And, with Democrats facing a slimmer majority in the new Congress that convenes on Jan. 5, there is a movement to change Senate rules in to make lawmaking more efficient and more responsive to the majority.

"We had almost 100 filibusters again this year," said U.S. Sen. Dick Durbin, D-Ill., who as the Senate's second-ranking Democrat plays a key role in counting votes and assembling coalitions on major bills. "It has become commonplace in the Senate and cannot be constructive. We cannot move forward when [the minority] are using this tactic nearly every day."

In an interview the day before Democrats fell five votes short of the 60 needed to advance the Dream Act, which Durbin had first introduced nine years ago, the Illinois senator told the Beacon that the filibuster threats were "frustrating to [senators] on both side of the aisle. It is an abuse of a system that has served our nation well for 200 years. And it's time for us to take an honest look at changing these rules."

Last week, Durbin and U.S. Sen. Claire McCaskill, D-Mo., joined every other returning Senate Democrat in signing a letter to Majority Leader Harry Reid, D-Nv., complaining that "the process of threatening a filibuster and requiring a cloture vote on just about every matter is now routine. ... We believe the current abuse of the rules by the minority threatens the ability of the Senate to do the necessary work of the nation, and we urge you to take steps to bring these abuses of our rules to an end."

But what can Reid and Senate Democrats do to stop it? Not a great deal, if the 47 Republicans in the 112th Congress unite to filibuster any effort to stop or limit the filibuster.

"There's a variety of things [Senate Democrats] can do to improve the efficiency of the Senate and make minority obstructionism somewhat less effective," said Steven S. Smith, a political science professor at Washington University  who has written a book about Senate filibusters. "But they probably cannot go all the way to simple-majority cloture" -- under which 51 votes could cut off debate.

When he testified to a Senate panel in September about proposals to alter filibuster rules, Smith argued for changing Senate rules to limit debate on certain motions -- such as the motion to take up a bill and the motion to send an approved bill to a joint Senate-House conference -- and, in situations in which debate is not otherwise limited, to allow a simple majority eventually to close debate.

Another idea was to require the minority to come up with the 41 votes to continue a filibuster, rather than requiring the majority to 60 votes to stop it -- a daunting task when some senators are absent. "That would shift the burden of proof, so to speak, from the majority to the minority," he told the Beacon in a phone interview this week, when he was in Washington to advise Senate staffers on how such rules might be changed.

When the new Congress convenes next month, U.S. Sen. Tom Udall, D-N.M., has said he intends to seek Senate rules changes -- some similar to Smith's suggestions -- that aim to weaken the minority's power to delay important bills. To lay the groundwork, he and others will argue that a simple majority of senators, rather than two-thirds of them, should be sufficient to change Senate rules at the start of the Congress.

Contending that the Senate rules need to be reformed, Udall told a conference at American University earlier this year: "With the rules we have, we have given the minority the power over the will of the majority. The world's greatest deliberative body is turning into a graveyard of good ideas."

Congressional Experts Call for Changes

Smith joins several other scholars of the Senate in suggesting that the trend toward filibusters has reached the point at which it threatens the chamber's ability to act on important issues. In May, congressional expert Norm Ornstein of the conservative American Enterprise Institute told the Senate Rules Committee that "the sharp increase in cloture motions reflects the 'routinization' of the filibuster -- its use not as a tool of last resort for a minority that feels intensely about a major issue, but as a weapon to delay and obstruct on nearly all matters, including routine and widely supported ones."

Ornstein and Thomas Mann of the Brookings Institution, who wrote a book with Ornstein about filibusters and other problems with Congress, says that the number of cloture motions required to get a Senate vote has more than doubled since 2006. According to U.S. Senate records, there were 91 cloture votes in the Congress that adjourned this week, and 112 such votes in the previous Congress. That contrasts with 54 and 49 cloture votes in the two Congresses before that.

In addition, progress has been clogged by many "stealth filibusters," in which the minority -- whether Republicans or, earlier, Democrats -- had prevented action on bills by simply threatening to initiate a filibuster.

The Common Cause public-interest group, which supports reforming Senate rules, contends that the sharp rise in the frequency of filibusters is "responsible for much of the widespread public anger at the gridlock in Congress and the belief among much of the general public that the 'government no longer works' for average Americans. This widespread anger has generated a loss of public confidence in government, and particularly in Congress."

Judging from responses to questions through the Beacon's Public Insight Network in November, the filibuster rule represents one of the major obstacles to progress in the minds of Missouri and Illinois readers. Six of the 15 respondents who listed needed reforms specifically cited the filibuster and called for new rules to allow a simple majority to approve legislation.

"The filibuster and 'secret hold' rules are counterproductive. They allow obstructionism and delays of important legislation," said William Fogarty, a retired physician from Webster Groves who volunteers at a local health clinic. He said has been "badly disappointed" by Congress' lack of action on key issues.

McCaskill agreed with Fogarty's criticism of the Senate's "secret hold" practice, under which individuals senators -- if they choose, unnamed -- are allowed to hold up Senate consideration of a presidential nomination or a bill. While a single senator is limited to six days of a hold, he or she can "tag team" with other like-minded senators to extend the hold for weeks or months.

"We've been sent to the Senate to do the people's business -- so the American people deserve to know if a senator is holding up a piece of legislation and why," McCaskill said earlier this year when she helped sponsor a bill, which has not yet come to a vote, to eliminate the practice. "We should not be doing our business in secret," she said, calling on senators to "stand up for transparency and accountability in Washington."

Other views on filibusters

But McCaskill's position on filibusters is not quite as clear. This week, the National Journal quoted her as saying that "there need to be changes to the rules to allow filibusters to be conducted by people who actually want to block legislation instead of people being able to quietly say 'I object' and go home."

However, a spokeswoman for McCaskill clarified Thursday that the Missouri senator only wants to change certain aspects of the filibuster rules to make the legislative process more efficient. She said McCaskill  "supports maintaining the filibuster because she believes it helps ensure that the Senate remains a deliberative body that fosters debate and compromise. She does recognize, however, that some compromise may be necessary to ensure that the Senate can move to debate legislation within a reasonable timeframe."

Missouri's outgoing Republican U.S. senator, Christopher "Kit" Bond, expressed a somewhat different view of filibusters and secret holds, but he agreed with his Democratic colleague on one thing: It is very difficult to change Senate rules, which have not been altered in a major way since the 1970s.

"It's very tough" to change the Senate's core rules and traditions, Bond told the Beacon in an interview this month. "You can just nibble around the edges."

Bond and former U.S. Sen. John C. Danforth, a Republican who now runs a foundation based in St. Louis, cautioned that removing the filibuster might change the nature of the Senate as conceived by the Founding Fathers. "That's the nature of our system," Danforth told the Beacon. "It's built to be slow moving. It's built not to gyrate wildly from one thing to the next. It's called checks and balances; that's the way it is."

While he thinks it is "a pretty good system," Danforth said that he understands the public frustration about inaction on major problems, such as the federal deficit. "Somehow, you've got to get something passed," he said. "If all we do is stay on the current course -- the status quo -- it means massive debt and a real change in what our country is going to be like. So somehow you've got to get people who do more than say, 'I object.'"

The new U.S. senator-elect from Missouri, Republican Roy Blunt -- a former acting House majority leader -- did not address the filibuster issue directly but told the Beacon in a recent interview that "the Senate's a very different place than the House. The majority does run the House. And the Senate ultimately runs on an extraordinary level of consensus or things don't get done. Sometimes things not getting done is a good thing."

For his part, Bond -- citing the Democrats' approval of the controversial health-care overhaul last spring as an example of the negative results -- defends the filibuster rule as an important check to the power of a majority. "When they [Senate Democrats] had 60 votes, we didn't have any rights. We were totally steamrolled," Bond said. "That's one of the reasons so much bad stuff came out, without being vetted, without being fully considered."

However, Bond conceded that the majority has to find ways to cut off some delaying tactics. "You don't want to have filibusters by amendment, so at some point you'll have to say, 'OK, we're going to file for cloture with an agreement that we have four more votes on each side, so we don't have someone offering 30 or 40 amendments that are hogwash."

As for the secret holds condemned by McCaskill and others, Bond says the hold is a time-honored practice that helps senators to make a point or get into the discussion. "When I hold up somebody, I'm proud to do it. I've done it to get attention in both Republican and Democratic administrations," Bond said.

Danforth said reforming the rules and traditions of Congress is a complex task and says legislators should hold the national interest above partisan disputes. "One of the challenges of government is to function, he said. "If you want to go to Washington and say, 'I'm going to try to block as much as I can.' That's an easier game to play than trying to get things done ... It's much easier to stop things than to get them going.

"It only takes once person to stand up and say the words, 'I object.' ... You not only don't contribute to a solution. You make it very difficult for anyone to find a solution."

Rob Koenig is an award-winning journalist and author. He worked at the STL Beacon until 2013.

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