Is it the filibuster or a failure of enforcement?

How many stories do you hear today of senators pulling all
nighters to filibuster a bill or amendment? The answer is very few. Instead,
senators can merely raise the threat of objecting to a bill to signal that they
might actually talk long enough to delay it and their demands are considered by
their colleagues. Given that the filibuster has now been reduced to a mere
sentence or two voicing an objection to a motion, it is no wonder that we have
come to believe it is at the heart of all legislative delay. In fact, the abuse
of the power to filibuster stems from the failure of the Senate as a whole, and
the majority party leadership specifically, to enforce the basic requirement
that a filibuster consists of extended speech.

The U.S. Senate today has a legislative workload that is
unparalleled in history and in addition to their legislative responsibilities,
senators are expected to meet with government officials and key constituents,
as well as fundraise for their next reelection campaign. They literally no longer
have the time to stand on the Senate floor and talk, much less listen.

If the only way a senator could filibuster a motion was to
come to the Senate floor, stand up, get recognized to speak by the presiding
officer, and start talking without stopping, we would most certainly see a
drastic drop in the number of supposed filibusters. Senators would only engage
in filibustering when it was vitally important to his or her constituents, or
if the issue was one that he or she cared deeply about on principle. Opponents
of the filibuster argue that trying to enforce the extended speech aspect of
the filibuster is an unrealistic solution. They argue that the majority leader
is elected by the senators from his or her party, and no majority leader would be
willing to risk the wrath of his fellow senators by forcing them to stand up
and talk indefinitely. But that answer does not hold up well in light of
history; plenty of majority leaders have enforced the filibuster and kept their
jobs. If a senator’s cost of filibustering increased, then he or she would be
less likely to use this tactic to delay the Senate’s business, and that would
most certainly make the job of majority leader easier and increase the
productivity of the U.S. Senate.

Therefore, I recommend that the right to filibuster a
bill, amendment, or nomination be preserved in the United States Senate under
one condition: any senator who claims to have an objection be forced to come to
the floor and speak openly and publicly to his or her colleagues. In the case
of a bill or judicial nomination, any senator shall have 2 legislative days
from the time that the majority leader makes a motion to proceed to come to the
floor; that window is reduced to 1 legislative day in the case of an amendment.
These windows of time are necessary to allow senators who are traveling to
return to the Senate to make their case. If the senator does come in person to
filibuster, the standing 60 vote threshold (three-fifths of the Senate) to
invoke cloture and shut off debate shall remain in effect. If he or she fails
to show up on the Senate floor to voice his or her objection in person, the
Senate majority leader can move forward, without requiring unanimous consent or
a Senate vote to do so.

The Senate was designed to be a bulwark against hasty and
rash decision making by the federal government. The framers of the Constitution
knew that they were taking a risk by giving a centralized government ultimate
power over each state; they split the legislative branch in order to maximize
the venues where citizens could have their voices heard and their interests
addressed. In the House, it is the voice of the majority that rules the day,
but in the Senate each senator has an equal power to voice dissent.

If it were not for the power to filibuster, how could an
ordinary citizen, company, or even state stand up for its own interests in a
majority structured system of government? In the House of Representatives, the
majority party only grants the minority the permission to present its
alternative legislation on the House floor if they are positive they have the
votes to defeat it. In the Senate, the majority party has the power to bring up
the bills it wants to pass on the Senate floor, but any senator from the
majority or minority party can offer an amendment to that bill or, in the
extreme, filibuster it. The filibuster in the Senate provides a crucial
opportunity for senators in the minority party to offer their views, or force
the majority party to consider their alternatives. While some have argued that
the minority party has abused this fundamental procedural privilege, the
filibuster still provides an essential incentive for Congress to achieve
compromise among the competing interests, opinions, and ideologies that
characterize the American democracy.

Wendy J. Schiller is an associate professor of political
science at Brown University. This column is adapted from a longer essay by the
author in “Debating Reform”, Eds Richard J. Ellis and Michael Nelson, CQ Press,
2011.