Congress and Session: 111-2

The United States Senate has been often been proudly referred to as the world’s greatest deliberative body. Many great and historic debates led by some of history’s finest orators have taken place on the floor of the U.S. Senate. Unfortunately, in the recent decade the so called world’s greatest deliberative body has become the world’s most legislatively dysfunctional body.

The ability for Senators to engage in unlimited debate has now become a vicious partisan tool of obstruction in order to prevent any business to be conducted by the Senate as the use of the filibuster has become routine. Instead of an effort of “last resort”, the filibuster has become the “first effort” by the current Republican minority and it has become increasingly rare for the Senate to pass any legislation, approve nominations and pass annual appropriations bills. The Senate’s dysfunction and the continued abuse of this arcane and rare procedure by the current Republican minority has led to paralysis all throughout the federal government.

But it has also led to the complete inability for progress on any major legislation to address major concerns. CWA and the rest of Labor have been unable to pass the Employee Free Choice Act, despite strong support because of the filibuster. Important energy legislation that would address climate change and wean us off our dependence on foreign oil has been bottled up due to the failure to get 60 Senators to agree to stop the endless debate. During the greatest economic crisis since the Great Depression, popular and much needed jobs programs have failed to become law because of the filibuster.

When most Americans hear of the filibuster, they think of the old classic Jimmy Stewart movie “Mr. Smith Goes to Washington”. That is of one Senator standing on the floor of the Senate talking for hours upon hours and possibly days on end with no breaks or rest. That is no longer the case as the system has now been manipulated so that any one Senator can hold up legislation without being required to stand on the Senate floor and talk and talk and talk. They instead object to the legislation which then requires 60 Senators to vote to “cut-off” debate. If 60 Senators do not agree to the motion to end debate and move to the final question (the up or down majority vote on the legislation) then technically the debate continues and the bill cannot move forward to passage. It is in effect in a legislative limbo and technically dead – EVEN IF A MAJORITY OF SENATORS SUPPORT THE BILL.

The filibuster, contrary to conventional wisdom, is not something that has existed since the early days of America. The ability to filibuster has evolved and changed over the history of the U.S. Senate. In fact, the original Senate Rules allowed for agreeing to end debate with a simple majority vote. It wasn’t until the acrimonious and highly partisan environment in the period leading up to the Civil War that prolonged debate in order to obstruct the passage of legislation was first practiced in 1841. It was during this period prior to the Civil War that use of the filibuster became routine as the Senate became less and less able to address major issues.

From the Civil War until World War I, various efforts to allow for limitations on debate were attempted but failed. In 1917, the Senate adopted Rule XXII which allowed a limit and end to debate if two-thirds of the Senators present and voting agreed. For example, if only 90 Senators were actually present in the Senate chamber for a vote, it would require 60 votes to end the debate and have a final vote on passage of the legislation.

In 1975, in an effort to lower the burden required for ending debate, the two-thirds requirement was changed. It was replaced with a requirement that three-fifths, or 60 percent of the total membership of the Senate, was required in order to end debate. That means that even if some Senators are absent for a vote due to illness, family emergencies, or even simply stuck in traffic, the threshold required to end debate still stands at 60 votes, unlike the previous rule which required two-thirds of those present and voting.

Unfortunately, the use of the filibuster by the Republican minority has skyrocketed exponentially since the Democrats took majority control of the Senate. This chart (insert) demonstrates the dramatic abuse of the filibuster to tie the Senate repeatedly into procedural knots in an effort to kill legislation.

This routine use of the filibuster has only resulted in the inability not only of the Senate itself to conduct important business, but the federal government in its entirety. With the routine use of the filibuster, we have seen the disappearance of crucial “authorizing legislation”. This is the legislation that “authorizes” the federal government and specific agencies the authority to carry out their functions and to provide Congressional direction on priorities. In the last several decades, as the filibuster has been repeatedly used, these important pieces of legislation have been in decline. The Congressional Budget Office reported that in fiscal year 2010, about half of the money provided for nondefense programs had to be appropriated without legal authority because of the inability of the Senate to pass authorization legislation. Shamefully, 250 laws that authorize various programs and parts of the federal government had expired and Congress had not done the work to enact the appropriate “reauthorization” legislation.

Besides authorizing these programs, Congress must also fund these programs and the federal government as a whole through the annual appropriations legislation. Congress has not enacted all of the required annual appropriations bills on time in the last 15 years. During the last fiscal year, the House passed 4 of the 12 required appropriations bills in June and the rest in July. The Senate passed 3 in July, 1 in August, 2 in September, 1 in October, 2 in November (after the new fiscal year had already started) and the remaining three bills never made it to the Senate floor at all.

Besides the delay in approving legislation, the Senate rules have been routinely abused to prevent the placement of highly qualified individuals into the jobs that the President nominated them to. The Senate is required to confirm or deny presidential appointments to vital positions in the government. A delay tactic similar to the filibuster, referred to as a hold, has once again become common. An individual Senator, often anonymously, can place a “hold” on a nominee, which will prevent action on their nomination. Use of holds has grown routine to prevent the filling of crucial personnel throughout the federal government, which jeopardizes important functions and work. The most recent and egregious example of this was earlier this year, when Senator Richard Shelby, Republican of Alabama, single-handily held up 80 individual nominations made by the President and cleared by the relevant Senate committees all because he felt that his home state of Alabama was not receiving enough grants and contracts from the federal government.

In order for our legislative branch to once again become part of a functioning democracy, Senate rules must be updated. The filibuster must be eliminated and the use of holds to deny the appointment of qualified individuals must come to an end.