Busted filibuster: A needed change
On my last day as an intern for the United States Senate I was asked, “If there is one you would change about the Senate, what would it be?”
I replied, “Get rid of the filibuster.”
On April 4, Senate Republicans invoked the “nuclear option” to clear a democrat filibuster on the Supreme Court Nominee Neil Gorsuch. A filibuster is when there aren’t 60 votes to pass cloture. Cloture is part of the Senate rules requiring 60 votes to end debate and finally vote on an issue.
Essentially, a filibuster is voting not to vote: an infinite delay of game. The “nuclear” option is, as a Senate staffer told me, breaking the rules to changes the rules so that only 51 votes are required instead of 60.
And for the first time this nuclear option was used on a Supreme Court nominee. Some have claimed that this move in unprecedented and dangerous. I say otherwise.
To begin, it’s not entirely unprecedented. Under the Obama administration, Harry Reid and the democratic Senate trigged the nuclear option to allow Obama’s lower judicial nominees to pass by without the threat of a filibuster. The catch is that this change didn’t apply to the Supreme Court. So using the nuclear option to clear judicial nominees isn’t unheard of. But onto the more fundamental problem with cloture: the tradition.
The claim that the nuclear option is dangerous rests upon the idea that cloture helps to build consensus between the parties. But this wasn’t even the original intention of cloture. Cloture was to ensure that senators had a voice in the debate, not to infinitely delay legislation or nominees.
There already is minimal “debating.” Watch the Senate floor on C-SPAN for five minutes and the silence may very well put you to sleep. Cloture was meant to encourage more debate. But now, if cloture fails, the “debate” ends. There’s no more discussion, no more debate. Why should there be? The filibuster is meant to kill legislation. Cloture was once meant to foster debate. Now it kills it.
What used to happen is that a Senator would vote for cloture, then vote against the nominee. Senators could have their say, but the final vote would still take place. That has changed in recent history. According to Senate.gov, back in the ’90s, there were no more than three or four filibusters a year. Now there are upwards of 140 filibusters a year.
Senators use it to stop legislation they oppose. That’s why the Iran Nuclear Deal was allowed to continue and why Obamacare was never repealed after Republicans took control in 2014. But beyond basic governance, there’s a democratic principle at stake.
Senators are meant to represent us, as outlined by the 17th Amendment. It only takes 41 Senators to filibuster a piece of legislation or nominee. If we take the 41 Senators from the least populous states, they represent about 12 percent of the population, which means 12 percent can stop anything in Congress from becoming law.
The Senate was designed to keep some minority power, but not that much. A system where 12 percent can stop the other 88 percent from doing what they believe is right is no way for a republic to function, even in ours where minorities hold a special place.
I believe that it was a good decision to get rid of the filibuster. It has been abused by both parties in ways that damage our republic. It once served a purpose, but that purpose is no longer a concern since very little debating happens anyway.
Instead of being a way for Senators to ensure their voice is heard, the filibuster (cloture) is used to block unwanted legislation and nominees. This move will probably bite Republicans someday. But it was a needed move.
The filibuster is a partisan weapon. It doesn’t build consensus, it doesn’t foster debate and it certainly doesn’t get anything done. Good riddance.
Gerberding is a member of College Republicans and Honors Association.
