Back when Republicans controlled the U.S. Senate, minority Democrats employed and defended their use of the filibuster, blocking votes on President George W. Bush’s nominees by refusing to yield the floor in the absence of a super-majority of 60 out of 100 senators. Now that Democrats control the U.S. Senate, it’s the minority Republicans who employ and defend their use of the filibuster to prevent votes on President Obama’s nominees and proposed laws without a super-majority of 60 out of 100 senators.
I opposed the filibuster when used by Democrats. (See my op-ed commentary in the Wilmington (Delaware) News Journal of May 17, 2005.) And I oppose the filibuster used by Republicans today, for the same reasons.
It is wrong to suggest, as the defenders of the filibuster always do, that the filibuster has any legal or moral foundation beyond the hoary traditions of the U.S. Senate. The Constitution requires a super-majority in the U.S. Senate only in specified instances, such as the ratification of a treaty or an amendment to the Constitution itself.
Article I of the Constitution provides that in the event of a tie vote in the U.S. Senate, the vice president of the United States should cast the deciding vote. Why would the vice president have to decide ties if a super-majority was required, as it effectively is now? It could be argued that Senate rules requiring a super-majority are in fact unconstitutional except as required by the Constitution.
The custom of the filibuster, allowing unlimited debate as long as any member wishes to talk, reflected the courtesies of gentlemen in the 18th century, and was the practice in both houses of Congress at the founding of the American republic. But as the House of Representatives increased the number of its members, its rules were changed to limit debate and insure a vote despite minority opposition.
The Senate retained the custom of unlimited debate in its rules until 1917 when the Senate amended its rules to allow the cut-off of debate, or “cloture”, by a two-thirds vote. Cloture was invoked for the first time in 1919 to stop a filibuster against the Treaty of Versailles formally ending World War I, though the treaty was not in the end ratified.
Despite the change in Senate rules, Southern opponents of civil rights legislation effectively used filibusters to prevent votes. Senator Strom Thurmond of South Carolina set the record for individual filibustering when he held the floor for more than 24 hours to prevent a vote on the 1957 Civil Rights Act. Cloture was invoked on the 1964 Civil Rights Act after a 57-day filibuster.
As recently as 1975, the U.S. Senate again changed its rules to reduce the number of votes required to cut-off debate from two-thirds to three-fifths, or 60 out of the current 100 senators. That demonstrated both the consistent direction of Senate rule changes in favor of allowing votes and limiting filibusters, and that such rule changes are normal and hardly the “nuclear option” portrayed by the opponents of change.
I urge the U.S. Senate to again amend its rules to adopt the democratic principle of majority rule to decide when to cut-off debate and allow a vote, not only on presidential appointments to the executive branch of the federal government, but also on judicial appointments and on legislation. That’s not the nuclear option at all. I’d call it the constitutional option.