by Michael Serota
“[I]f we’re going to frame these debates in ways that allow us to solve them, then we can’t start off by figuring out, A, who’s to blame; B, how can we make the American people afraid of the other side . . . that’s how a lot of our discussion works.”1
In the past year, America has watched as the partisan gridlock in Washington, D.C., has caused the passage of legislation in the Senate to grind to a halt on major issues, such as health care reform,2 climate change,3 and financial reform.4 While it is disconcerting that many of America’s leaders have been unable to set aside their political differences to work for the common good, the effects of this paralysis reach far beyond Capitol Hill. The failure of Democrats and Republicans to compromise means America’s problems are not fixed. And since many of the problems the nation faces are so big, they affect every American in some way.
In many instances, there is much on which both parties can agree, but because of the lack of compromise on other issues, acknowledged problems that have clear solutions go without remedy.5 For example, in the current health care debate, many Republicans and Democrats think that health care reform should increase access to health insurance for those with preexisting conditions, increase emphasis on preventative care, and institute payment reform for doctors.6 Yet these problems remain unchanged, leaving Americans to suffer unnecessarily because of political differences on how to fix the rest of the health care system.
While there is much that can be blamed for this paralysis, such as campaign contributions and special interest groups, there is one procedural problem that stands in the way of duly elected majorities passing legislation: the filibuster. This procedure allows any Senator to require that debate on a piece of legislation continue until the required sixty-vote “supermajority” ends the debate.7 The filibuster thus alters the general requirement that a simple majority of both houses vote in favor of a given piece of legislation before presenting it to the President, and makes it much harder to pass legislation in a partisan climate.8
During this period of extreme polarization, the problem with the filibuster is both its existence, because it thwarts the ability of the majority to achieve its policy ends, and that it is difficult to eliminate, because sixty-seven votes are required to change Senate rules.9 Even in a Senate with a majority of 59 Senators, this means that enacting a change in Senate rules would require the very bipartisan cooperation that the increased use of the filibuster demonstrates does not exist. Furthermore, because both parties have historically abused the filibuster,10 and because the minority party has little immediate incentive to eliminate it, neither party is likely to vote to abolish this mechanism anytime soon.
Thus, any proposal for fixing the filibuster must have bipartisan appeal, and it must also somehow safeguard the interests of the minority party-which has the most to lose by giving up the filibuster. With this in mind, I propose a new Senate rule that would create a special bipartisan committee to reconcile filibustered legislation and make it appropriate for a majority vote in the Senate.
This new rule would allow a simple majority of the Senate to establish a ”Filibuster Commission” in the event that a bill passes the House and then fails in the Senate due to a threat of filibuster. The Filibuster Commission would be a bipartisan, twelve-member panel of Senators chosen at random, six from those voting in favor of, and six from those voting against, the failed legislation.11 This Commission would conduct a special hearing on the bill that would be televised before the American people.
Prior to the hearing, all those voting against the legislation would be responsible for identifying in writing those provisions with which they agreed and disagreed. For the provisions with which they disagreed, they would be required to explain the reasons for their disagreement, and to provide alternate legislative language if necessary. Furthermore, they would be required to lay out all factual assertions clearly. This document would be open for review by the public.
The Filibuster Commission would then review the document and identify the undisputed portions of the House bill. Similar to a standing committee hearing, the Commission would have the power to call experts to testify on the points of disagreement, and could engage in a televised debate regarding the specific issues at hand. After the hearings, the Commission would enter into deliberations over the points of disagreement, requiring seven votes to pass any new or revised provision. At the end of this process, there would exist a new, modified version of the House legislation that would go to the Senate floor for a simple majority vote. The legislation would then return to the House for passage, and then go to the President for his signature.
There are four main benefits of this procedure. First, the Filibuster Commission would bring a certain level of accountability to both parties by shedding light on the partisan gridlock and by allowing the public to understand the areas of disagreement and the potential solutions. Second, it would require the minority party to clearly articulate its views and areas of disagreement, and to propose other solutions to major policy problems. Third, it would require very little sacrifice on the part of the minority party to change the Senate Rules accordingly. Since the Commission would consist of equal members of those voting for and against the bill, neither group should have any strategic advantage, and either group would be able to prevent any provision from going through if it felt strongly enough. And finally, while the Filibuster Commission would not guarantee success, it would ensure open confrontation and an attempt at compromise in front of the American people. Regardless of whether health care reform, climate change legislation, or financial reform passes in this Congress, the proposed Filibuster Commission addresses a systemic problem and would therefore provide a useful and ongoing solution to the growing level of partisanship and lack of compromise that exists in the Senate.
Michael Serota is currently a law student at the University of California, Berkeley.
1 President Barack Obama, Remarks by the President at GOP House Issues Conference (Jan. 29, 2010), available at http://www.whitehouse.gov/the-press-office/remarks-president-gop-house-issues- conference).
2 See Dana Bash, Deirdre Walsh & Tom Cohen, House, Senate Leaders Say Push for Health Care Reform Continues, CNN, Jan. 28, 2010, http://www.cnn.com/2010/POLITICS/01/28/reid.pelosi.health.care.
3 See Richard Cowan & Timothy Gardner, Scenarios: Climate Change Options for Congress in 2010, Reuters, Jan. 25, 2010, available at http://www.reuters.com/article/idUSTRE60O5EI20100125.
4 Robert Schmidt, Senator Dodd’s Exit Could Facilitate a Financial Reform Deal, Business Week, Jan. 6, 2010, available at http://www.businessweek.com/magazine/content/10_03/b4163025345188.htm.
5 See Matt Canham, Reform Consensus: Where Republicans, Democrats Agree, Salt Lake Tribune, Nov. 1, 2009, available at http://www.sltrib.com//Features/ci_13263234.
7 Senate Rule XXII, Standing Rules of the Senate, S. Doc. No. 106-15, 106th Cong., 2d Sess. 15-17 (2000), (requiring three-fifths vote of all senators to invoke cloture, except on measures to amend Senate rules, which require the votes of two-thirds of senators present and voting).
8 Yay or Nay? Voting in the Senate, http://www.senate.gov (last visited Mar. 2, 2010) (Typically, a simple majority is required for a measure to pass.).
9 See Senate Rule XXII, supra note 6.
10 See Catherine Fisk & Erwin Chemerinsky, The Filibuster, 49 Stan. L. Rev. 181, 182 (1997) (describing the ubiquitous use of the filibuster by both Democrats and Republicans).
11 A computer program would produce this random selection of twelve Senators.
Email Michael Serota at firstname.lastname@example.org