In a recent CNN blog post, Princeton professor Julian E. Zelizer contends that a complete overhaul of the filibuster in the U.S. Senate would be an appropriate Congressional response to the gridlock and perceived obstructionism of recent years. Citing the 60-vote cloture threshold as immune from the crosshairs of Senate Democrats when they push for filibuster reform this week, Professor Zelizer claims that the “reforms are rather mild” in that they focus only on increasing the cost of launching a filibuster. As the U.S. Senate is in the midst of the debate over filibuster reform, public discourse over such reform must be viewed through a balanced lens with an eye on historical context.
Thorough historical analysis of the consequences of some of the reforms being proposed demonstrates the inherent dangers in making the United States Senate more majoritarian by toying with the nature of the filibuster itself. This becomes readily apparent when examined point-by-point:
Five specific filibuster-related reform points that Mr. Zelizer lays out in his article are 1) senators “would actually have to stand of the floor, Mr. Smith style, and the Senate would be unable to work on other business while a filibuster is taking place”; 2) reforms should “end secretive practices such as the ‘hold,’ which enables senators to anonymously block legislation from being debated”; 3) “narrowing the scope of votes that can be filibustered”; 4) “reducing the length of debate after senators have successfully voted for cloture”; and, perhaps most worrisome, 5) “consider lowering the number of senators required to end the filibuster to 50.”
First, forcing senators to become Mr. Smiths in order to filibuster is a good idea. Aside from Frank Capra’s classic 1939 film Mr. Smith Goes to Washington standing as one of the most entertaining and timeless political films of the 20th century, this idea may indeed be beneficial for the nation in that senators would have to justify to their constituents watching on C-SPAN why they are standing up against a motion or a specific piece of legislation. Transparency to this degree is a good thing; our political leaders should be proud of their convictions. If public opposition would be shameful to a senator, then perhaps it is unwarranted. The same logic applies to the second point of analysis, regarding the end of secretive practices such as the anonymous hold, which enables senators to block legislation from reaching the floor for debate.
When we consider the consequences Mr. Zelizer’s ideal Senate would face if the third point of analysis were to be implemented, however, the water becomes murkier. What exactly would “narrowing the scope of votes that can be filibustered” entail? Much of the Senate’s business is done by unanimous consent – a process that is enabled only through the collegial nature of legislators and the enormous institutional pressure toward decorum, camaraderie, and politeness. Even the worst of political enemies in the Senate are pressured by the ghosts of Senators past to refer to each other as “my esteemed colleague from South Dakota” or “the eloquent senior Senator from Kentucky” when on the floor of the greatest deliberative body in the world. If the Senate takes action to limit the scope of votes on motions or legislation from filibuster, it would begin to infringe upon minority rights to an inappropriate extent.
The fourth and fifth points of contention in Zelizer’s article move to the realm of categorical unacceptability. Reducing the length of debate after senators have successfully voted for cloture is another move toward restricting the voice of the minority. Many senators vote for cloture of debate without necessarily voting for the final passage of the bill. Silencing opinions even further in the name of efficiency cannot be done in this instance – after a cloture motion has been passed, it is virtually inevitable that the bill is coming to a vote on final passage anyway. The least an objective, balanced majority can do is offer the minority a chance to get the word out to the American people to call their senators and voice their opinion for or against a specific action upon which the Senate is voting. The checks against the tyranny of the majority in the Senate exist for valid reasons, and today’s Senate should not move to undermine them.
In the context of Professor Zelizer’s final proposal, however, the consequences of all of these flawed arguments become exponentially magnified. Lowering the number of senators required to end the filibuster to merely a simple majority is preposterous. This would effectively eliminate the filibuster altogether, enabling a simple majority of senators to pass any legislation over and above the objections of a substantial minority. That’s not what the U.S. Senate stands for; that is not what it has ever stood for. Late legends of the Senate such as Ted Kennedy and Robert C. Byrd would be appalled at the extent of filibuster reform Mr. Zelizer is proposing, and for good reason. Advancing arguments for the death of the filibuster is spitting in the face of history.
We citizens cannot forget that the Founding Fathers, during that long, hot Philadelphia summer of 1787, made concessions regarding the nature of our bicameral legislature for specific, directed reasons. In particular, the U.S. Senate was the be the body in which small and large states alike were to be equally represented. The Senate was envisioned as the “saucer” that would cool the boiling-hot tea of popular sentiment – the potentially erratic, unpredictable, swiftly shifting behavior of the House of Representatives.
Forcing senators to become Mr. Smiths in order to filibuster carries little harm, and may indeed be beneficial for the nation; however, disrespecting the sanctity of minority rights in the Senate is utterly unacceptable. The United States Senate must defend the 60-vote cloture threshold, for lowering this margin to 51 votes would give undue power to a simple majority. As Saint Bernard of Clairvaux cautioned, the road to hell is paved with good intentions. To our Senate: do not allow the upcoming filibuster reform to serve as a classic embodiment of this warning for generations to come. To fellow citizens, Democrats and Republicans alike: reject Professor Zelizer’s overly majoritarian call to arms. Well known public intellectuals such as Mr. Zelizer should not be advocating for proposals which carry such potentially disastrous consequences for our national legislature. For the sake of the nation, in the name of tradition, today’s filibuster as an institution must continue to endure.
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