James S. Robbins
The push by Democrats to eliminate the Senate filibuster is exactly the wrong move at the wrong time. In these days of strident partisanship, cloture should be mended, not ended.
Senators may still fancy themselves part of the world’s greatest deliberative body, but that expression was more suited to a time when they actually deliberated. Now it seems that the work of Senators is to out-bid each other in making angry statements, hold sensationalized hearings, craft legislation in partisan cells behind closed doors and show up for the occasional rushed vote on massive bills they probably haven’t read.
The cloture rule is one of the only remaining vestiges of a way of doing the people’s business that was rooted in the norm of compromise. Getting rid of it will be finally to admit that the system is broken beyond repair.
Senate was built on compromise
The Senate was built on compromise, owing its very existence to the Great Compromise of 1787. Under the original rules of the body small groups of Senators could grind debate to a halt, and 19th Century members were skilled in exploiting rules of order to create endless debates, force votes to adjourn or recess, or other such time-wasting techniques. This “filibustering” – a 19th century term for piracy — was an accepted part of the process, and something that forced compromise. When it was clear that a minority of Senators would mount such an effort, the majority had to take heed or legislation would not move forward. Often it was easier just to make a deal.
The old Senate didn’t have a cloture rule to end debate because it didn’t need it. This changed on the eve of World War I when a group of 11 Senators led by Progressive Republican Robert LaFollette of Wisconsin sank the Armed Ship Bill promoted by President Woodrow Wilson, which would have allowed neutral American merchant ships to defend themselves against German submarines. This “little group of willful men,” as Wilson called them, spurred the Senate to adopt the cloture rule, which at the time required a two-thirds vote to end debate. Yet even with the rule in place the old collegial norms of compromise persisted, and cloture was invoked only 8 times up to 1970.
Things changed in 1975 when Democrats exploited a rare 61-seat Senate majority to opportunistically lower the cloture bar to sixty votes. But instead of making filibustering less common, it exploded. From 1991 to 2000 cloture was invoked 92 times, in the next decade 204 times, then 715 times from 2011-2020. There have been more than 20 cloture votes just since the new Senate convened in January.
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These numbers are symptomatic of the deep divisions in the country, the loss of bipartisanship and death of moderation. They accurately map the descent of the Senate from a formerly august legislative body to a grubby winner-take-all cage match.
The short-sightedness of ending cloture
Short-sighted Democrats seem to think that doing away with the filibust will not blow back on them, but they clearly have not been paying attention to recent history. In November 2013 then-Senate majority leader Harry Reid, frustrated by Republican delaying tactics in the confirmation process, pushed through a rule change known as the “nuclear option,” under which presidential nominees could move to confirmation by a simple majority vote. Reid was trying to “get the Senate working again” by eliminating Republican voices. This came back to haunt Democrats during the Trump years when record numbers of judicial nominees were passed through the Senate with little recourse from the minority party. Expanding the nuclear option to all Senate business is likely to work just as well, which is to say not at all.
Democrats have no electoral mandate for this radical change, and an equally divided Senate should be looking for ways to enhance bipartisanship, not wreck it. Rather than empowering simple majority rule, the Senate should raise the cloture bar back up to two-thirds to make minority parties so powerful that compromise becomes absolutely necessary. This would force Senators to do what they seem unable to do on their own, namely come together in a bipartisan spirit to pass legislation for the good of all, not just for their narrow special interests.
Mitch McConnell:The Senate’s filibuster is Kentucky’s veto. It stops radical agendas.
Forcing the Senate to return to its bipartisan traditions would also be in keeping with the design of the Constitution for the upper chamber to more reliably serve as a check on the excesses of the House. As things stand this is no way to run a government. Senators seem to have lost their respect for their institution as well as themselves. At some point one must ask, why have a Senate at all if its members won’t act like Senators?
James S. Robbins, a member of USA TODAY’s Board of Contributors and author of “This Time We Win: Revisiting the Tet Offensive,” has taught at the National Defense University and the Marine Corps University and served as a special assistant in the office of the secretary of Defense in the George W. Bush administration. Follow him on Twitter: @James_Robbins