David E. RePass: Harry Reid should end phantom filibusters





[David E. RePass is an emeritus professor of political science at the University of Connecticut.]

... Most Americans think of the filibuster (if they think of it at all) through the lens of “Mr. Smith Goes to Washington” — a minority in the Senate deeply disagrees with a measure, takes to the floor and argues passionately round the clock to prevent it from passing. These filibusters are relatively rare because they take so much time and effort.

To reduce deadlock, in 1917 the Senate passed Rule 22, which made it possible for a supermajority — two-thirds of the chamber — to end a filibuster by voting for cloture. The two-thirds majority was later changed to three-fifths, or 60 of the current 100 senators.

In recent years, however, the Senate has become so averse to the filibuster that if fewer than 60 senators support a controversial measure, it usually won’t come up for discussion at all. The mere threat of a filibuster has become a filibuster, a phantom filibuster. Instead of needing a sufficient number of dedicated senators to hold the floor for many days and nights, all it takes to block movement on a bill is for 41 senators to raise their little fingers in opposition.

Historically, the filibuster was justified as a last-ditch defense of minority rights. Under this principle, an intense opposition should be able to protect itself from the tyranny of the majority. But today, the minority does not have to be intense at all. Its members have only to disagree with a measure to kill it. Essentially, the minority has veto power.

The phantom filibuster is clearly unconstitutional. The founders required a supermajority in only five situations: veto overrides and votes on treaties, constitutional amendments, convictions of impeached officials and expulsions of members of the House or Senate. The Constitution certainly does not call for a supermajority before debate on any controversial measure can begin.

And fixing the problem would not require any change in Senate rules. The phantom filibuster could be done away with overnight by the Senate majority leader, Harry Reid. All he needs to do is call the minority’s bluff by bringing a challenged measure to the floor and letting the debate begin....

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