Making democracy work

{mosads}In the U.S. Senate, there were no historic limits on unlimited debate. John Calhoun first used the power of extended debate to hold up legislative work in 1841, according to a study by the Alliance for Justice. In 1917, The Senate adopted Rule XXII, cloture, under which unlimited debate could be stopped by a two-thirds majority vote; in 1975, it was changed to require a three-fifths majority. But the cloture rule doesn’t require the delayer-legislator to stand and speak — a la James Stewart or Wendy Davis — nor to deal with important issues on the merit.

One of the reasons legislators do not eliminate the current filibuster practice is that the Senate majority worries about needing it when it becomes a minority. So the pernicious undemocratic power continues, most recently frustrating many of President Obama’s appointments and proposed laws. Some critical observers recommend modifying the cloture rule to require the filibustering legislator to be present (not now the case) and to be discussing the subject, not reading the phone book.

I believe the democratic process should require an up-or-down vote after reasonable debate, letting the political chips — red or blue — fall where they may. Since Barack Obama was elected and reelected, Republicans have abused the threat of filibuster power more than at any other time. 

Interestingly, in 1994, several national Republican figures including former Cabinet officials and senators like Elliot Richardson and Charles McC. Mathias, Arthur Flemming, Ray Marshall, and Robert Stafford criticized the filibuster. Richardson wrote that it “turns democracy on its head … At stake is our government’s ability to make decisions and take action.” He and others urged that the relatively modest gridlock of the time end, pointing out that between 1990-1994 there were more filibusters than the 140 years before. Recently the numbers have become worse.

Today, the majority doesn’t rule. The so-called tyranny of the minority is unconstitutional and unwise. Originalist or progressive, it is time for government to govern.

Ronald Goldfarb is an attorney, author and literary agent based in Washington, D.C., and Miami.