As Senate Republican leaders scramble to find the votes to pass a health care bill, their fidelity to a warped understanding of the filibuster rules is deeply impacting the content of the legislation and the odds of passing anything in a deeply divided chamber.
The filibuster is a powerful tool by which the minority in the Senate can delay or kill legislation simply by preventing the 60 votes necessary to open or close debate on a bill.
However, a top official at the conservative Hillsdale College believes that embracing the original understanding and implementation of the procedure would provide for much more robust debate and a stronger legislative branch.
Matthew Spalding is the dean of educational programs at Hillsdale and also runs the school’s Allan P. Kirby, Jr. Center in Constitutional Studies and Citizenship in Washington. He says the filibuster is diluting the purpose of Congress.
“The underlying problem here is that Congress doesn’t really legislate in the way it was supposed to. It gave up on that, in many ways, decades ago, as it delegated its powers away,” said Spalding, who says the filibuster was never intended to give the minority that much power.
“The filibuster was not intended to stop legislation. It was intended to delay it. It was intended to slow walk it. It was intended to allow the minority to say whatever they wanted to say in objection in a public forum, in a deliberate legislative way,” said Spalding.
Instead of the traditional filibuster, which required exhausting speeches that lasted hours on the Senate floor, Spalding says the tool has become the lazy way to stop what members don’t like.
“A filibuster (now) becomes a silent veto. They no longer have to debate and keep the floor open. It doesn’t force deliberation the way the filibuster is supposed to. It’s essentially this silent killing mechanism that stops legislation in its tracks,” said Spalding.
As a result, he says the American people glaze over while the Senate plays parliamentary games instead of publicly debating the best course for the nation.
“I think Congress too often hides behind processes, whether it’s the filibuster or reconciliation or omnibus legislation rather than doing the hard work of legislating. That’s the Madisonian answer here, and in the long run, that’s the best thing to solve our problems,” said Spalding.
He says that problem is front and center right now as GOP efforts to address Obamacare are complicated by the inability to get to 60 votes to do anything. As a result, Republicans are trying to shoehorn changes through the Senate by way of the budget tactic known as reconciliation, which only requires a simple majority of votes to begin or end debate but also restricts what can be considered in such circumstances.
“The Senate is forced to try to go around the filibusters so they use things like reconciliation, an obscure budget process rather than regular legislation to get policy matters done,” said Spalding, who also says the GOP should have been crafting and debating the bill in public rather than writing it behind closed doors like the Democrats did with Obamacare in 2009 and 2010.
Spalding says two simple changes in approach to the filibuster would maker a world of difference. First, he wants the Senate to return to the policy where all other business is halted until a filibuster is resolved. He also encourages Senate leaders to embrace the “two-speech” rule, which would allow each member two opportunities to speak as long as they want in opposition to a bill.
However, once all the opportunities for speeches are done, the bill would proceed to a simple up-or-down vote.
Spalding says this would be very simple to accomplish.
“One of the reasons I point to these two reforms is that neither one of them requires a rules change. All they actually require is for the majority leader to agree to do this. This is merely a procedural move,” said Spalding, noting that those policies used to be in place before getting changed by leaders back in 1970’s when Democrats ran the chamber.
Such moves would still allow for filibusters, but would require real filibusters where lawmakers are forced to stand for hours on end to demonstrate how fiercely they oppose a bill.
“So I’m in favor of legislating but also keeping the filibuster so you can object. But if you’re going to object, you’ve got to get up, you’ve got to debate and you’ve got to really filibuster,” said Spalding.
“You force the opposition to a piece of legislation to each get up there, and they can speak twice at whatever length they want, but it does come to an end at some point. The political point is made. Everything stops. The Senate shuts down and you get a filibuster. You have the effect but it does not stop the legislative branch from fulfilling its constitutional duties,” said Spalding.
The instant concern for those in the minority now or in the future is that Spalding’s approach all but guarantees the majority gets its way and that the minority’s ability to scuttle bad legislation is limited.
He acknowledges that’s true but says there is a remedy for that too.
“We shouldn’t hide behind it to stop bad things. We should argue to stop bad things and have more politics better elections and get better people in there,” said Spalding.
Left to the status quo, Spalding says the legislative branch of the U.S. government will only get weaker and weaker.
“Congress is the weakest branch. It doesn’t legislate. It doesn’t budget. Its muscles are so atrophied (that) we should think about the underlying reforms needed to revive it as an institution, which is good for constitutional government,” said Spalding.