The reason, according to noted attorney Emmet Bondurant writing in a Harvard Law School publication, is that “[t]he exceptions were designed to address a limited number of unusual situations deemed by the Framers to be of such gravity and importance that they should not be left to the vote of a simple majority.” In other words, a supermajority requirement was reserved for occasions that are both rare and weighty.
With the increased use of filibusters that must be broken by the votes of 60 or more lawmakers, the Senate has moved far from the notion of rarity and significance. Over the last 60 years of the 19th century, the Senate endured 16 filibusters, the stalling technique intended to put the brakes on legislation or other action. Over 2009 and 2010, the Senate witnessed 8 times more filibusters, on matters ranging less important than putting a president on trial or entering into an international agreement.
The bar is far lower when it comes to modern filibusters. It can be over nothing more than a bill or that a presidential nominee rubs a single senator the wrong way.
And let’s dispense with the Hollywood version of the filibuster seen in Mr. Smith Goes to Washington that it is required to keep standing and talking in order to hold up proceedings. These days, a filibuster is nothing more than a senator saying he or she intends to hold the floor of the Senate by talking nonstop. All that chattering could really cut into a senator’s fundraising, don’t you know.
Of late, the filibuster has become a tool in the minority party in the Senate. Out of power, Republicans and Democrats have found it a handy method to check the power of the majority. In power, Republicans and Democrats loudly complain of the tyranny of a minority of senators. Thus far, however, no majority party has been willing to rewrite the Senate rules in a way that would curb the use of the filibuster. That’s because majorities understand that they are only an election cycle away from being in the minority and desperately in need of a loose filibuster rule.
On Monday, good government advocates at Common Cause filed suit in U.S. District Court in Washington over the Senate’s filibuster rule.
“America can’t wait any longer for Congress to tackle our nation’s problems,” Common Cause CEO Bob Edgar said in a press release. “We can’t afford to let a minority of U.S. senators block action. It’s wrong, and it’s unconstitutional. It’s time to restore majority rule in Washington and get the country moving again.”
Now the matter heads into the courts, one more sign that the machine of American democracy isn’t working properly. The gridlock produced by filibuster mania didn’t just crop up. A Senate stocked with statesmen would have realized the folly of anti-democratic filibusters and taken steps to step back from the brink. They didn’t, and now a court may do it for them.