The
United States Senate has one of the most powerful tools known in a democracy;
the use of the filibuster. The filibuster is a way to simply extend debate,
primarily used by the minority party in the Senate, to limit or halt the
procession of a bill sponsored by the majority. It is seen as a protection, and
it distinguishes the Senate from the House. The use of the filibuster arises by
the Senate’s authority to determine its own procedures and rules outlined by
the U.S. Constitution, Article I, Section 5. However, since the 70s, the use of
invoking a filibuster has more than increased bringing into question the
constitutionality of it and the gridlock in getting anything done that seems to
go with it. However, this problem was addressed early in the 20th
Century with the adoption of Rule 22, which introduces the motion of cloture,
where the Senate by a 60 member vote can overstep the filibuster and proceed
with the bill. The articles by Gerhardt, Koger, and Binder tackle the problems
of the filibuster, the history, and the needed reforms to either do away with
tradition, or to introduce a limit of the uses of it. They are able to make the
case that a reform is needed badly. In this 112th Congress, the
Democrats (the current majority) are about to enter into talks of reforming the
use of the filibuster, while the Republicans (the minority party) voice their
discontent; just as in 2005 when the Republicans who were in control, threatened
a similar reform with the nuclear option that ended up going nowhere.
In
the article by Chaftez/Gerhardt, a discussion is talked about whether or not
the filibuster is constitutional, particularly paying attention to the
super-majority needed to invoke cloture. Josh Chafetz makes the point that “cloture
has now effectively become a requirement for passage of any significant
measure.”[1] He
goes on to a specific paragraph that shows the history of the increase of the
rise of filibusters and how successful the Senate has been in invoking cloture.
He notes that the increase in filibusters has increased dramatically since the
1970s, and that the filibuster is diverting from its original purpose of halting
controversial bills, to anything that a Senator feels doesn’t need to be passed
for no reason whatsoever.[2] He
introduces an opposing view of his analysis of the current use of the
filibuster, by saying that supporters may cite history and the longevity of the
filibuster, but he argues that the association that comes with the term
“filibuster” is simply a pseudo notion, seeing as no debate is taken place and
that it is simply a “permanent minority obstruction”[3]
that has evolved into an unconstitutional procedure. Michael Gerhardt refutes Chaftez’s
attack on the super-majority needed to end a filibuster, by agreeing that there
is a problem with the increase uses of the filibuster, but withholds calling
the institution of the filibuster and the needed majority as deciphered by the Senate,
unconstitutional.[4]
He sees the problem as “the Senate [lacking] a majority genuinely committed to
challenging abuses of Senate procedures”[5]
and that just because it has become tedious for the American public, does not
mean it is by any chance unconstitutional. He urges and ends his argument, that
the Senate has the authority vested by the Constitution to continue with the
use of the filibuster, as long as they are able to carry out the implied powers
they have been assigned. If it continues, to where nothing is able to be achieved,
he closes his rebuttal by saying that the solution to clear the gridlock is
through the electoral process.[6]
It
may seem that that super-majority through the 60 member vote is the degree to
which a bill can be passed, however, it was much harder prior to 1975, in which
the cloture was only able to be invoked by two-thirds of the Senate, or 67
votes.[7] The
reform of cloture through the Senate’s history from 1918, the year the rule was
adopted, to around the 1980s is methodically analyzed by Gregory Koger in the
relationship between the majority in control and the likelihood of a reform. He
notes through his research that “although a united majority could impose new
limits on obstruction, it is difficult for senators to form coalitions that
have a strong common interest in cloture reform, particularly majority
cloture.”[8]
Getting this fixed is a matter of bipartisanship, and it is very difficult when
the Senate is highly polarized as it has become. A prime example of this is
analyzed by Binder, in which she cites the pivotal cry of the Republicans
during their domination of the Senate in 2005, before they lost control in
2007, with the nuclear option they threatened at the Democrats who kept Bush’s
nominations to the federal courts at bay.[9]
The nominations were not getting anywhere, so they wanted to do away with the
filibuster, but to do that, as Koger mentioned, coalitions needed to be
established before any reform could take place, seeing as a reform for a Senate
procedure/rule requires a super-majority, and the Democrats were not willing to
give up without a fight.
The
articles are able to convey the diminishing effect of the filibuster, and the proposed
reforms that seem to veer off into obscurity, seeing as the procedure is
something that both parties want to use if they should ever find themselves in
the minority, but when they are on the majority side, they want a way to bypass
the obstructions to get their agenda passed. If they want to retain tradition,
and make the Senate work again, the public needs to be swayed by each party to
use their vote to change this gridlock, for the majority to have more than the
required 60 votes, as Gerhardt argued. However, the point that Chaftez makes on
the term and original purpose of the filibuster is important, because he
provides a clear solution to limit the uses of it, by proposing that if a
Senator wishes to filibuster a bill, they should talk the bill to death as long
as they are able to. This could in fact, limit the filibuster to bills that are
controversial, and see the Senate pass legislations that are not as
controversial. Limiting the reform to only the cloture is not enough, without
taking into account the main underlying problem that has caused the gridlock,
the filibuster itself.
Gerhardt,
Michael J. and Chafetz, Josh, Is the Filibuster Constitutional? (September 18,
2011). University of Pennsylvania Law Review, Vol. 158, pp. 245-267, 201.
Koger,
Greg. “Cloture Reform and Party Government in the Senate, 1918-1921.” Journal of Politics 68:3 (2006):
708-719.
Sarah
A. Binder, Anthony J. Madonna and Steven S. Smith (2007). Going Nuclear, Senate
Style. Perspectives on Politics, 5, pp 729-740.
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