Senate Majority Leader Harry Reid has it in for the filibuster. “I think the rules have been abused, and we are going to work to change them,” he told reporters soon after the election. The Nevada Democrat is worked up because Republicans have used it to hold up legislation 389 times since 2007. “We will not do away with the filibuster,” Reid said, but “we are going to make it so we can get things done.” He’d change the rules so filibustering senators would have to go back to doing it the old-fashioned way—talking on the Senate floor nonstop, Jimmy Stewart-style—instead of merely declaring a filibuster and going home, which is the way it’s often done now. He’d also make it so senators could only filibuster final votes and not use it to block every procedural step along the way. Even these modest reforms won’t be easy to pass: To change Senate rules Democrats need 67 votes, 12 of them Republican.
A federal lawsuit now in the U.S. District Court in Washington could do Reid one better. It seeks to outlaw the filibuster as unconstitutional. Common Cause, the left-leaning advocacy group, filed the case on behalf of eight plaintiffs, among them three children of undocumented immigrants who say they would have been naturalized under President Obama’s proposed Dream Act if a GOP filibuster hadn’t blocked it. Lawyers for the plaintiffs argue that unlimited debate isn’t a vital Senate tradition that protects the rights of the minority party, but an historical accident that’s led to the equivalent of minority rule.
Blame it on Aaron Burr. In his famed farewell address to the Senate in 1805, the vice president urged his colleagues to simplify the body’s rules. They did the next year, eliminating among other things a parliamentary motion that required a simple majority to force an end to debate and move to a vote. Burr thought it unnecessary, since it had only been invoked once in four years. Yet without it, there was no longer a way to stop a determined talker from stalling a vote on a bill he opposed. The Senate didn’t set out to create the filibuster; it was an unintended consequence.
In Washington no opportunity goes unexploited, and by the mid-19th century the filibuster had become a weapon. There have been periodic attempts to weaken it. A rule change in 1917 allowed a two-thirds majority to cut off an obstinate senator, and in 1975 the threshold was lowered further to a three-fifths majority, or 60 votes.
According to Emmet Bondurant, lead counsel for the plaintiffs in the federal suit, the Senate’s power to set its own procedures has come into conflict with another constitutional imperative: majority rule. Bondurant notes that the framers of the Constitution created a supermajority requirement in the Senate for six specific circumstances, among them approving a treaty or impeaching a president. From this, the Common Cause suit infers that the Constitution intends the Senate to decide other matters by majority vote.
In the Federalist Papers, James Madison wrote that requiring a supermajority in Congress would reverse “the fundamental principle of free government,” and that a minority might use it to “extort unreasonable indulgences.” It could be used to “embarrass the administration” and “destroy the energy of the government,” wrote Alexander Hamilton. Says Bondurant: “You take those Federalist Papers and publish them today, and people would think you’re talking about the current dysfunctional Senate.”
At a Dec. 10 hearing, lawyers for the Senate asked the judge in the case, Emmett Sullivan, to dismiss the suit, arguing that the plaintiffs can’t plausibly claim to have been injured by a law that wasn’t enacted. The question of the filibuster, they say, is a political one, not for the courts to decide. Judge Sullivan hasn’t indicated when he’ll rule on letting the case proceed.
Common Cause is stretching to make its point, says Michael Gerhardt, the director of the Center for Law and Government at the University of North Carolina School of Law. Gerhardt, a friend of Bondurant, agreed as a favor to look for weaknesses in the suit before it was filed. Gerhardt points to the 1917 and 1975 changes that made it easier to defeat a filibuster. Reid’s current push for further changes, he says, shows the system is capable of correcting itself.
Bondurant doesn’t buy his friend’s argument. The Senate, he says, has been grappling with the implications of the filibuster for the better part of two centuries. Only the courts can extricate it from its own mess. Reid’s proposals are “a great deal of talk,” says Bondurant. “But he doesn’t have the capacity to deliver.”