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Kill the filibuster rule

The Senate's supermajority rule for ending filibusters is standing in the way of progress and needs to be eliminated.

March 05, 2009|George Kenney | George Kenney, a U.S. diplomat during the George H.W. Bush administration, is a writer in Washington and producer and host of a podcast at electricpolitics.com.

During a time when the nation will need a lot of legislation quickly, it seems absurd that the Senate binds itself to an obsolete supermajority rule requiring 60 votes to end a filibuster and force a vote. What's so magic about the number 60? Why should 41 senators -- coincidentally the current number of Republicans -- be able to block public policy indefinitely?

It's not because the Constitution requires it. It's because of Senate Rule 22 on cloture, adopted in 1917 and changed in 1975 (requiring a three-fifths vote instead of two-thirds) -- and it's merely a Senate tradition. (In contrast, the House, which originally also practiced filibusters, found them cumbersome and, by 1842, eliminated them.)

Once the Senate has a quorum, a majority vote on any issue carries the day, with five exceptions enumerated in the Constitution: impeachment, expulsion of members, veto overrides, confirmation of treaties and constitutional amendments. Otherwise, all that the Constitution tells the Senate is that it is free to make up its own rules.

However, the Senate has its reasons for keeping a supermajority requirement, and here are two they will say out loud: It preserves fellowship among the senators, and delayed legislation often results in improved legislation.

But there are other reasons -- perhaps more important to the Senate and not usually openly acknowledged: The senators like being insulated, when convenient, from the rough-and-tumble of national politics, and this rule helps spread the political risk on controversial decisions. They also see themselves as a sort of House of Lords -- elite rather than democratic.

But the question is whether Senate traditions and rules should be of greater importance than the welfare of the country. Absent a strong demand for change, however, the Senate is unlikely to drop Rule 22. Unfortunately, the public is unlikely to apply any pressure because it assumes the rule is an arcane detail specified in the Constitution.

Nevertheless, with a 59-to-41 majority (assuming Minnesota's Senate race is finally decided in Al Franken's favor), Senate Democrats should suck it up and change the rule. Otherwise, they will bear full responsibility for missing this opportunity to move the country forward.

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