Ending an Era of Minority-Rule

Guest Post: By Chris Cassidy, Assistant Director of Communications, American Constitution Society for Law and Policy. The views expressed here are solely attributable to Cassidy.

Intra-party struggles, the Bush recession, sharp departures from our commitments to international and domestic law -- none of these developments even competes with the impact of the modern filibuster on American politics.

After winning the White House and amassing super-majorities in both houses of Congress, reforms are creeping through legislative channels at a perilously slow pace. With the bipartisan support of her home state's senators, Dawn Johnsen's nomination remains stalled over a year since being announced. Meanwhile the majority party seems on the verge of panicking over mid-term elections which may leave them with only 54 seats in the Senate.

Yes, 54 seats in the Senate would still be a majority. Yes, 54 seats used to be enough to move nominations and legislation. No, this is not a joke.

These are the very serious consequences of a parliamentary procedure run amok. In the 1950s, filibusters were invoked just once per Congress, on average. In the last Congress, there were 139.

With Republicans feverishly invoking the filibuster at every turn, there has been no shortage of suggestions for how to reform Senate rules to empower legislators to legislate. I do not jump onto the bandwagon calling for reform without hesitation, however. Let's not leave recent Democratic filibusters unacknowledged.

There is something to be said for a system that permits the minority party to moderate judicial nominations. For instance, though used considerably less then, the filibuster proved useful in blocking extremists nominated to the federal bench by President George W. Bush.

But blocking extremists doesn't seem to be the prerogative of today's Republican Senators.

President Obama's nomination of Judge David Hamilton for the Seventh Circuit Court of Appeals was almost universally welcomed as a gesture towards bipartisanship. Hamilton's moderate credentials earned him the support of Republican Senator Richard Lugar as well as the head of the Federalist Society's Indianapolis chapter. With Senator Jeff Sessions leading the way, however, Senate Republicans launched an effort to block Hamilton's nomination, citing one month that he worked with ACORN in 1979 and shamelessly distorting his distinguished judicial record.

The question remains: How do we eliminate knee-jerk filibusters of every legislation and nominee, while preserving the legitimate, counter-majoritarian purpose that the filibuster once served.

A solution may be on the way to the Senate floor as we speak. Sen. Tom Harkin has indicated that, in the coming weeks, he will re-introduce a bill that would change Senate rules to end the minority party's veto power, while preserving their ability to delay Senate action and inform the public debate.

Harkin's bill would permit a filibuster for a fixed period of time until it could be overcome by 57 votes. Should this be insufficient, debate would continue until the time limit is again reached, and cloture could be invoked by 54 senators. Eventually, 51 senators could pass legislation or advance nominations.

Senator Harkin initially proposed the bill in 1995, when he and his fellow Democrats were in the minority. This time, though, he hopes that the devastating gridlock on Capitol Hill will move his fellow senators to action.

While the chances for Harkin's bill remain unclear -- it would require 67 votes to change Senate rules -- the public interest would clearly be best served by bringing an end to the era of minority rule in which we find ourselves. The alternative is that each administration, whether Democrat or Republican, risks becoming a placeholder incapable of legislating or filling judicial and executive vacancies. The American people deserve better, but we will not be extended change without demanding it.