Most Americans remain blissfully unaware of arcane Senate rules and procedures, and few are aware of how radically those rules have changed under current leadership. Senate Rule XXII, which was adopted in 1917 and revised in 1975, requires “three-fifths of the Senators duly chosen and sworn” to vote for cloture to end discussion on any subject. This constitutes a filibuster, which allows a minority of senators to slow or stop business on the Senate floor.
Not surprisingly, filibusters often prove frustrating to the majority. Yet that’s been true regardless of which party holds the most Senate seats.
In 2005, when the Democrats were in the minority during the administration of President George W. Bush, Democrats made use of this process to block a number of President Bush’s judicial nominees. Republicans seriously considered altering Senate rules to eliminate the minority’s power to filibuster. Cooler heads prevailed, as a bipartisan group of senators known as the “Gang of 14” hammered out a compromise that left the rules intact. Those in the GOP who fought to protect existing rules did so on the basis that the short-term partisan advantage they would enjoy was outweighed by the long-term damage that such a significant structural shift would cause.
At the time, one senator famously said: “I urge my colleagues not to go through with changing these rules. In the long run it is not a good result for either party. One day Democrats will be in the majority again and this rule change will be no fairer to a Republican minority than it is to a Democratic minority.” The senator? Barack Obama.
Now, with Republicans very bullish about their 2014 electoral prospects, it is entirely possible that the GOP will inherit the Senate majority with fewer restrictions on legislative action than when the party last controlled the chamber.
But Democratic leaders don’t seem to be seriously considering that possibility. A few weeks ago, Senate leaders raised the possibility that if the Democrats hold on to the Senate, there might be further changes to minority rights in the chamber. The changes being considered include further limiting time for debate before matters go to senators for a vote.
It can be easy for lawmakers to be frustrated by the difficulty of enacting changes to law under the republican institutions in our democracy. Yet the Senate has developed procedural rules for many important reasons. As the web site of the Senate itself explains: “[James] Madison explained that the Senate would be a ‘necessary fence’ against the ‘fickleness and passion’ that tended to influence the attitudes of the general public and members of the House of Representatives. George Washington is said to have told [Thomas] Jefferson that the framers had created the Senate to ‘cool’ House legislation just as a saucer was used to cool hot tea.”
Reinstituting and retaining the filibuster should be an important priority for whichever party controls the Senate following November’s election. Indeed, the filibuster may well be the best check that exists in Washington against the abuse of power.