A filibuster for our time

Now that Senate Democrats once again have beaten the dead horse of ending the filibuster, perhaps the entire Senate can consider new ideas for what a modern filibuster might look like.

Despite the black-and-white arguments regarding filibuster reform, it is possible to balance the objectives of both sides of the debate. You can retain the ability of the minority to filibuster legislation while also allowing the majority to move ahead with legislation, eventually. 

The Senate filibuster is a historic, legitimate, important tool in the governing process. But, as currently designed and used, it has become a hindrance to governing — some would say even anti-democratic.

This is important since the Senate once again failed to end debate on voting rights legislation. However, what last week’s vote does not tell the public is whether Republicans are against voting rights reform as proposed by the Democrats, and would like to seek changes — a legitimate position — or whether their objection relates to the idea of making any change to voting rights law. All we know is that, at this time, Republicans don’t want to eliminate the filibuster. They want it to remain as is — and Democrats apparently want to end the filibuster, or at least for this specific legislation. Both parties have done this before: Democrats, for presidential appointments, and Republicans, for Supreme Court justices.

Regardless, this is no way to run a railroad — or the U.S. Senate. 

The filibuster is not an instrument established by the Constitution. But it is an old and traditional tool of the Senate. Since their first official session, senators have used the filibuster to stop or slow down legislation. Over the decades, until the present, it has evolved from an informal practice of talking bills to death to one with clear rules and greater use that does not require control of the Senate floor. 

The rationale for the filibuster is similar to the argument used by those who demanded a Bill of Rights be included in the Constitution — to protect individual Americans against the power of the majority government. However, protecting the rights of the minority in the Senate is not the same as allowing them to prevent legislation from passing, since we also have the norm and established practice of majority rule. 

Allowing the minority to truly stop a proposal from advancing — especially something that has majority public support — is not a fundamental element of the American tradition. However, allowing the minority party to slow down, make changes to a proposal, or to change the public’s mind is part of the American tradition.

So, in our current political environment of a nearly evenly divided body politic, what changes can the Senate make to the filibuster that would protect tradition, protect minority rights and not violate the majority-rule norm? 

Subject filibusters to time, vote and debate parameters.

When the use of a filibuster is first invoked, like the current rule, proceeding to a final consideration of the bill would require 60 votes. If this vote threshold is not met, then a second cloture vote could be held, no sooner than three months after the original vote, but it would require only 55 votes to move ahead. If this fails, the majority would have to wait another three months for another cloture vote, but the vote threshold would shrink to 52 votes. Finally, if the 52-vote threshold could not be met, the bill could be subject to a final vote to cut off debate that requires only 50 votes (with the Senate president casting the tie-breaker, if necessary), which could occur no sooner than nine months after the initial vote. Other rules could include a requirement that each vote would get at least 12 hours of debate beforehand. 

Make these changes, or similar ones — there is nothing magical about the timing, vote requirements and debate time, except that any rules would have to guarantee opportunity for the minority to ensure its point of view is heard, give them the time to hold or change votes in the Senate and to sway public opinion in their favor, while also creating a pathway to a majority-vote opportunity.

This proposal would continue to protect the minority party while allowing the majority to proceed with its agenda, and would preserve the majority-rule norm of U.S. politics and elections. The question is, do senators want to solve a problem facing our democracy or do they want to preserve a political issue on which they can campaign?

William A. Pierce, senior director of APCO Worldwide, is a 30-year veteran of working in Washington for two members of Congress, as a political appointee in the executive branch, and as a public affairs executive. He is an adjunct professor at the Johns Hopkins University Advanced Academic Program, where he teaches classes in media relations and crisis communications. Follow him on Twitter @WilliamAPierce.