How and Why the Senate Must Reform the Filibuster 4

The following [How and Why the Senate Must Reform the Filibuster, by Tom McClintock] is adapted from a speech delivered on January 11, 2017, at Hillsdale College’s Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship in Washington, D.C., as part of the AWC Family Foundation Lecture Series.

Many argue that the current 60-vote cloture threshold is necessary to prevent one party from running amok; that the requirement for an extraordinary majority assures bipartisanship and compromise. They rightly warn that if legislation is to stand the test of time, it must have a certain degree of bi-partisan consensus that the cloture rule facilitates. Yet when one looks at the Senate today, it’s hard to find much collegiality or compromise, both of which require the give-and-take of good-faith deliberation. Nor is compromise possible if the matter to be compromised can’t be considered. If the minority can block an initiative by a mere threat to filibuster, it has no incentive to pursue compromise.

Republican defenders of the modern filibuster note that the greatest growth of government occurs when Democrats hold both the White House and Congress. The current rules, they argue, are an essential brake for the minority to use at such times. But unfortunately, these rules have proven even more effective at blocking legislation that shrinks government. The result is a ratcheting effect that locks in every government expansion, even those that prove disastrous.

One obvious solution to the filibuster is to require a simple majority to close debate, as the House has done for centuries. But this defeats one of the chief purposes of the Senate: a significant minority ought to be heard over the objections of a majority. So how can this purpose be preserved, while restoring the Senate’s ability to legislate?

First, the Senate should get rid of the two-track system that allows it to bypass a filibustered bill and reinstitute the pre-1970 requirement that filibusterers hold the floor. The fact that the number of filibusters exploded after the two-track system was introduced speaks for itself. Once the Senate removed all the fuss and bother of the filibuster, filibusters became common. Yes, this means the Senate would have to deal with a filibuster before moving on to other matters—but it is precisely this inconvenience that made it such a rare event and built pressure on both sides to resolve an impasse.

Second, the Senate should restore the parliamentary principle that debate must be germane to the pending piece of legislation. The Senate may pride itself on colorful tales of Huey Long reading Cajun recipes on the Senate floor. But how does this practice fulfill the role of the Senate as a deliberative body? Time on the Senate floor is a critical and limited public resource. Tolerating irrelevant speeches squanders that resource and makes a mockery of the Senate. Senate rules already require germane debate during the first three hours of a legislative day—but not after that! Go figure.

Third, make the “motion to proceed” undebatable, or at least subject to a maj­ority vote. This incidental motion is itself now subject to filibuster, which prevents the Senate from even getting to actual bills. Great debates should be had on great matters—but not great debates on whether to debate.

Fourth, limit senators to two speeches on a question. Under current Senate rules, a single senator can make two speeches on every motion every legislative day.

Fifth, after a certain period of debate has elapsed—during which filibustering can occur—allow a majority to set a limit for individual speeches on a pending question to something like two hours. A senator who can’t get to the heart of a matter in two hours isn’t trying very hard.

This is Part Four of a multi-part series. Keep watch for the next installment!

Tom McClintock has served as the U.S. Representative for California’s 4th congressional district since 2009. He received his B.A. from UCLA. He is a senior member of the House Natural Resources Committee, where he chairs the Subcommittee on Federal Lands, and serves on the House Budget Committee. Prior to his election to Congress, he served for 22 years in the California legislature and ran for governor in California’s recall election in 2003.