Popular notions of the U.S. Senate filibuster, the practice of talking bills to death or delaying their passage, tend to come from film, such as "Mr. Smith Goes to Washington," or from legendary past examples.
Sen. Huey Long of Louisiana was one. Speaking for 15 hours and 30 minutes in 1935 to oppose a New Deal bill, Long read the U.S. Constitution, and regaled his Senate colleagues with recipes for fried oysters and "potlikker," a soup made from liquid left in the pot after cooking turnip greens. He lost the floor when he needed a restroom break, and the legislation passed.
In the past, senators actually had to stand on the floor and talk all day and all night to keep debate going. That naturally limited filibusters.
In the last decade, however, filibusters haven't worked that way. The Senate allows "silent" filibusters the mere threat of a filibuster to force the majority to assemble 60 votes to cut off debate and move legislation. These "pseudo-filibusters," or "obstructionism on the cheap," have turned the filibuster from a tool of last resort to a regular part of Senate procedure.
Filibusters have become a way for a minority of senators to obstruct any legislation, and judicial and executive branch nominations.
Replacement of majority rule by minority rule is unacceptable in a constitutional republic. Senators ought to put a stop to it by changing Senate Rule XXII.
Under Article I, Section 5 of the U.S. Constitution, "Each House may determine its rules of proceeding" by a simple majority vote. The first Senate in 1789 approved 19 rules by a majority vote. Those rules have been changed from time to time and it is time to change them again.
On Jan. 23, the first day of the new congressional session, senators should reform the filibuster, and restore it as a measure of last resort.
Until 1970, the Senate averaged fewer than two filibusters a year. Since 2007, however, the minority has used the filibuster 385 times.
No longer do senators attempt to put together a majority coalition to carry the day. They threaten filibusters and the business of the Senate grinds to a halt.
This is not a hallowed tradition, but a clear abuse. Senate Majority Leader Harry Reid, D-Nev., used to oppose changes, but now supports reform.
"I think the rules have been abused, and we are going to work to change them," Reid said recently. "We will not do away with the filibuster, but we will make the Senate a more meaningful place. We are going to make it so we can get things done."
That's the right stance. Reforms should include:
Ending "silent" filibusters by requiring senators to hold the floor and debate.
Ending use of filibusters to prevent bills from reaching the floor for debate. Supported by California Sens. Dianne Feinstein and Barbara Boxer, this would allow debate to proceed. A minority could only filibuster a vote on the actual bill.
Requiring 60 votes to end debate on a bill initially, but lowering the requirement by three votes in each subsequent vote until reaching a simple majority of 51 votes. Championed by Sen. Tom Harkin of Iowa, this would allow time for passions to cool before a majority vote.
In our constitutional republic, the majority is supposed to rule, with checks and balances to prevent rash decisions. As Alexander Hamilton wrote in Federalist No. 22, "the fundamental maxim of republican government requires that the sense of the majority should prevail."
By adopting changes to its rules, the Senate would assure that the minority could use the filibuster, but the will of the majority would prevail after a reasonable period of public deliberation restoring the principle of majority rule.