A bipartisan group of 70 former U.S. senators, myself included, recently called for creation of a similar caucus of current members of the chamber dedicated to returning the Senate to its historic role as a body in which major national issues are considered, debated and resolved. That’s the easy part. We did not tell the Senate how the caucus would do so or what its recommendations might be. That’s the hard part.
For most of our national history, the Senate has permitted unlimited debate on issues brought before it, debate that can only be terminated by a supermajority vote, thus allowing a final vote on the bill under consideration.
This meant that the views of the minority had to be considered and to play a role in the final form of major legislation. But since the same rules apply to amendments to the main bill and even to starting debate on the main bill, requiring supermajorities at so many stages in the consideration of proposed legislation, these rules have always been powerful weapons in the hands of those opposing major corrections in our national course of action and have meant that a certain degree of bipartisan agreement behind such bills is almost always a necessity.
Beginning less than 50 years ago, however, rivals in an increasingly divided and partisan Senate have used the filibuster rule as a weapon to prevent even the consideration of bills or of presidential nominations to important positions in his cabinet. The result is systematic gridlock. And so now, the Senate cannot so much as debate major national challenges, much less decide them.
And as nature abhors a vacuum, presidents jump in and accomplish by executive order what Congress — mainly the Senate — cannot do by reason of its own rules. Next, we have decrees by individual federal judges claiming authority to make decisions having nationwide effect overrule the actions of presidents.
Majority leaders of both parties have shown that they know how to cure this filibuster-created deadlock and have imposed it. First, Sen. Tom Daschle, D-S.D., abolished the supermajority required for breaking filibusters on all judicial nominations except for the Supreme Court. His action was followed inevitably by Sen. Mitch McConnell, R-Ky., banning the filibuster with respect to Supreme Court nominations.
As a consequence, however bitter and partisan as they were, the Senate conducted full debates on the last several Supreme Court nominations and acted on them. The Senate has it within its authority to change the rules with respect to all of its other legislative authorities as well. It needs to act decisively.
The cost of these partial reforms is already high and paid for by the loss of civility, bipartisanship and thoughtful debate in the Senate. It will continue to be paid as it removes the leverage the minority once possessed, using the supermajority rule to require its views to be considered and often to modify the substance of important legislation, but it is now impossible to go back to the old rule and custom.
So, what can a reform caucus accomplish?
Start with the repeal of the remaining traces of the old rule. The Senate could certainly operate more efficiently, but with an absence of any effective minority participation, that’s too high a price to pay for efficiency, an attribute that a free people may really not wish to endow to 100 men and women in the District of Columbia. That restoration of a right to filibuster might be limited to say three or four proposed measures in each two-year Congress. This would amount to a partial return to its use only on matters of grave national concern, its historical function and perhaps to a revival of civility and bipartisanship.
If the Senate once again became a forum for vital national debate and action, so inevitably would follow the revitalization of its committees in drafting and revising the ideas of their members. That, in turn, should cause members to listen to one another and to increase civility in their personal relationships.