U.S. Senate needs more sunshine, fewer filibusters

Billings Gazette

The arcane rules of the U.S. Senate puzzle most Americans. In the past several years, both major political parties have threatened to change those rules.

When Republicans controlled the Senate in 2005, they threatened “the nuclear option” of forcing a vote on George W. Bush's judicial nominees by changing the rules that allowed Democrats to hold up confirmations.

After Democrats gained and lost their filibuster-proof majority of 60, their party struggled to get Barack Obama's nominees to a confirmation vote.

Thus, the latest effort to change the rules on filibusters is being led by majority Democrats.

The filibuster is a storied Senate tactic, used both for good and ill. It can protect the Senate minority from majority tyranny. It can preempt majority rule.

One positive aspect of the filibuster is the role it can play in fostering compromise. As the Congressional Research Service wrote in a report last year, “the possibility of filibusters creates a powerful incentive for senators to strive for legislative consensus.”

Although a bill can pass with simple majority support, the support of 60 senators may be needed to invoke cloture and overcome a filibuster.

“Knowing this, a bill's supporters have good reason to write it in a way that will attract the support of at least three-fifths of all senators,” the research service noted.

The report also states that the onerous “secret hold” isn't actually written into Senate rules. Yet it is a longstanding tradition of the body.

It is a tradition that has been abused and should be discarded. If any member of the Senate wants to block a bill or nomination, he or she should state that position publicly. Secrecy in this respect doesn't serve democracy or the orderly function of government. (Please see the guest opinion elsewhere on this page for a prime example.)

The Senate has operated under the same cloture and filibuster rules since 1975. What's changed in recent years is the willingness of both parties to use those rules more frequently for partisan advantage.

Sen. Jon Tester is among the senators calling for:

  • Ending secret holds.
  • Limiting filibusters to final votes so that a simple majority vote can bring a bill to the floor for debate.
  • Requiring senators wishing to block a final up-or-down vote to speak continuously on the floor until the filibuster ends.
  • Guaranteeing consideration of an equal number of amendments by Republicans and Democrats.

According to Tester's office, there were 136 filibusters in the first two years of the Obama administration, when Republicans have been the Senate minority. There were 71 in the first two years of the George W. Bush administration when Democrats were the minority. When senators actually had to stay on the floor and talk to filibuster, filibusters were rare.

We agree with Tester. Taking a stand should literally mean standing on the Senate floor, not just threatening to do so.

As for secret holds, there's no excuse for this affront to open government.

As Tester said: “Like most Montanans, I have a hard time understanding how one senator can singlehandedly bring the Senate's work to a grinding halt, without even saying who they are or why they're doing it.”

Negotiations reportedly are occurring between Senate Majority Leader Harry Reid and Senate Minority Leader Mitch McConnell over the break, which ends next week. Montana's senators, Tester and Max Baucus, should call on those two leaders to reach an agreement that increases transparency and efficiency in the Senate.

In response to a Gazette inquiry, Sen. Max Baucus' office said: “Max thinks open, honest debate is a cornerstone of democracy and he fully supports efforts to make government more transparent by eliminating secret holds. The potential rules changes are a new proposal that he is studying carefully.”

Filibuster comes from a word meaning “pirate.” Indeed, the filibuster has, at times, stolen the people's right to open, representative government.