Time to use the nuclear option

The real story is that using the threat of filibuster for noncontroversial Senate business has become so common it is no longer newsworthy. The filibuster has gone from being a rarely used institutional check to a daily delay, with cloture votes for this year outstripping the total number of cloture votes in the 1950s and 1960s combined.

Most would not even recognize the modern filibuster. Many wrongly hold a romanticized image of Senators talking and debating for hours, a la “Mr. Smith Goes to Washington.” Rule changes in the 1970s ended the concept of the filibuster as a feat of endurance. Because the onus is on the majority to break a filibuster with 60 votes, rather than on the minority to maintain it, the Senate has come to run on the constant assumption of filibuster. Before his death, Sen. Robert Byrd was forced from the hospital to break a filibuster over the health care bill. Such actions would have been unthinkable during the passage of Medicare. Congressional memos show that Lyndon Johnson expected victory “by a vote of 55 to 45.” Not until now has the filibuster become a supermajority requirement for regular legislation.

In today’s Senate, individual members regularly block legislation and appointments anonymously, and Senate culture and norms that used to keep mindless obstructionism at bay have degraded. In February, Sen. Richard Shelby, R-Ala., tried to put an anonymous hold on the confirmation of 70 of President Barack Obama’s appointees until Democrats supported earmarks for his state. Sen. Mary Landrieu, D-La., blocked Obama’s nominee to head the Office of Management and Budget in response to Obama’s moratorium on offshore drilling.

The problem of holds is rampant: A report from The American Prospect titled “The Vacancy Crisis” noted that there are more than 100 vacancies in the lower federal courts, with 20 empty seats on the U.S. circuit courts of appeal. Vital judgeships and executive positions in the Federal Reserve have been left vacant for longer than 18 months. When the report was filed, the Senate had only confirmed 42.8 percent of Obama’s judicial nominees, compared to 79.3 percent for George H.W. Bush, 84 percent for Bill Clinton, and 86.8 percent for George W. Bush at that point in their respective presidencies. With single senators placing anonymous holds on any nominee, the everyday and noncontroversial business of the Senate comes to a halt.

The Senate’s structure has always held the risk of collapse. When Alexis de Tocqueville visited the Senate in 1832, he warned, “A minority of the nation dominating the Senate could completely paralyze the will of the majority represented in the other house, and that is contrary to the spirit of constitutional government.” Indeed, this is exactly what has come to pass. The Senate has slowed to such a crawl that it failed to even consider more than 420 bills which had passed the House last session — simply running out of time to discuss proposals for immigration reform, pilot’s training, veteran’s care and wildfire management, among scores of other essential issues.

Few realize how little deliberation actually occurs in the modern Senate. More often than not, senators read statements prepared by staff to an empty room — listened to only by stenographers and C-SPAN cameras. Sen. Jeff Merkley GS ’82, D-Ore., has said that only once has he seen actual debate on the floor of the senate. “The memory I took with me,” he said, “was: ‘Wow, that’s unusual — there’s a conversation occurring in which they’re making point and counterpoint and challenging each other.’ And yet nobody else was in the chamber.”

In an interview, Sen. Lamar Alexander, R-Tenn., suggested that “the Senate wasn’t created to be efficient; it was created to be inefficient.” But this is an opinion that should be up to a vote, not written in the rulebook. With a bicameral legislature, judicial review and the veto pen, do we really need the filibuster? No other democracy has an equivalent supermajority requirement for regular legislation. Small states are not a “minority” that needs protection — in fact, the filibuster has more often been used to oppress actual minorities, such as during the passage of the Civil Rights Act. Indeed, few realize that because of unequal representation in the Senate, 41 senators that represent only 12 percent of the U.S. population can bring any Senate business to a standstill. The founding fathers did not envision rule by supermajority, and in the Constitution isolate only several instances when a simple majority would not suffice.

Yet there is hope. Today marks the first day of the 112th Congress — the only day of the congressional session when a simple majority of senators can vote to change Senate rules, and a letter indicating support for that option signed by every Democratic senator was recently delivered to Harry Reid, the majority leader. Though Republicans came close to using the so-called “nuclear option” in 2005, the last time it was actually done was in 1975 when the Senate voted to lower the threshold for cloture from 67 votes to the current 60. Current proposals range from another downgrade in the voting threshold — perhaps to 55 or 56 — to more moderate reforms such as ending the practice of anonymous holds on executive appointees. Yet this much is clear: The Senate must take action, and it must do so now.

Allen Paltrow is a freshman from New York, N.Y. He can be reached at apaltrow@princeton.edu.

Correction

The original version of this article incorrectly stated that the 111th Congress began on Jan. 5, but Jan. 5 was actually the first day of the 112th Congress. The Daily Princetonian regrets the error.