Tom Harkin is an Iowa Democrat and chairman of the Senate Committee on Health, Education, Labor, and Pensions.
Alexander Hamilton, describing the underlying principle animating the Constitution, wrote that "the fundamental maxim of republican government . . . requires that the sense of the majority should prevail."
The founders, to be sure, put in place a system of checks and balances to temper pure majority rule. To become law, a bill must pass both houses of Congress; legislation is subject to the president's veto power; a law can be challenged in court. The Constitution, moreover, requires a supermajority in special circumstances: ratification of a treaty, override of a veto, votes of impeachment, passage of a constitutional amendment, and the expulsion of a member of Congress. What was never intended was that a supermajority would be needed to enact legislation or confirm nominees. As James Madison noted in rejecting such a requirement: "It would no longer be the majority that would rule, the power would be transferred to the minority."
Unfortunately, because of the filibuster, Madison's warning has become a reality.
In the last Congress, from 2007 to 2008, Republicans in the Senate filibustered or threatened to filibuster 139 pieces of legislation. In the current Congress, Republicans are on a similar pace.
These are not just meaningless statistics. Behind each filibuster is an attempt to block the majority from debating legislation, voting on a bill, or giving a nominee an up-or-down vote. In each of those 139 filibusters, if 41 senators did not like a bill, no matter how simple or noncontroversial, no matter that it may have been supported by a majority of the House, a majority of the Senate, a majority of the American people, and the president, that bill was blocked from even coming before the Senate for a final vote.
In other words, thanks to the filibuster, even when a party has been resoundingly repudiated at the polls, that party retains the power to prevent the majority from legislating and effectively governing.
The Senate was never intended to operate this way. The filibuster is not in the Constitution. Indeed, our founders explicitly rejected a supermajority vote requirement. Historically, the filibuster was an extraordinary tool used only in the rarest of instances. In 1939, the year Mr. Smith Goes to Washington was filmed—depicting Jimmy Stewart's character single-handedly using a filibuster to stop a corrupt piece of legislation—there were zero filibusters in the Senate. In the 1950s, there was an average of just one filibuster per Congress. In a 20-year period, from 1950 to 1969, there were only 20 filibusters (a number Republicans tripled in just one year with 69 filibusters in 2009).
Most troubling, the filibuster has increasingly been used to prevent the Senate—often referred to as the world's "greatest deliberative body"—from even debating national issues. Recently, Republicans filibustered Democrats' attempts to debate measures to provide low-income home energy assistance, to strengthen the Consumer Product Safety Commission to ensure that our children are not exposed to unsafe toys, and to ensure that women are guaranteed equal pay for equal work. In the current Congress, despite the worst economic downturn since the Depression, Republicans used the filibuster for three weeks to block the majority from considering an extension of unemployment compensation. In all of these cases and many others, Republicans objected to the Senate even bringing up for debate and deliberation issues that matter to the American people. It is no surprise that Norman Ornstein, a leading political scientist, wrote a 2008 article titled "Our Broken Senate."
The sad reality is that today, because of the reckless use of the filibuster, our government's ability to legislate and address problems is severely jeopardized. When the abuse of rules prevents the Senate from even debating, let alone attempting to solve, pressing national problems, it is time to change the rules.
That is why I recently introduced legislation to change the Senate rules with regard to the filibuster. Under my proposal, over an eight-day period, the number of votes needed to end a filibuster would progressively decline from the 60 votes needed currently down to a simple majority.
In 1995, when Democrats were in the minority, I introduced the same proposal. My feeling was then, as it is now, that use of the filibuster would only continue to ratchet up unless we broke the cycle. The fact is, elections should have consequences. If the nation elects a majority of Republicans to the Senate, as it did in 1995, then after the minority has an opportunity to make its case, the majority should prevail. And it should be the same when voters send a majority of Democrats to the Senate. If the people do not like how the majority is governing, they have the ability to change the composition of the Senate at the next election.
Yet my proposal has absolutely nothing to do with limiting minority rights. Under my proposal, the minority members would have ample opportunity to debate an issue, try to shift public opinion, and attempt to persuade their colleagues. However, the minority would no longer have the power to brazenly block the majority from legislating. In this way, we can restore the Senate to the legislative body the founders envisioned, where the minority can slow things down—the "saucer" George Washington intended, in which scalding ideas from the more passionate House of Representatives might "cool"—but cannot obstruct legislation from coming to a vote.
At issue is a fundamental principle of our democracy—rule of the majority in a legislative body. I do not see how we can effectively govern a 21st-century superpower when a minority of just 41 senators can dictate action—or inaction—not just to the majority of senators but to a majority of the American people. This is not democratic. Certainly, it is not the kind of democracy our founders envisioned and intended.
Read how the filibuster can be used to build political bridges, by Sen. Lindsey Graham.
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