Schaeffer: Updating the Filibuster Conundrum


More than three years ago, The Maine Wire ran a brief item of mine on the filibuster concept memorialized in U.S. Senate rules.

Several days ago, some friends and I engaged in a discussion of the same subject as it relates to politics and the challenges of governing at this moment in our history.  We have a ‘divided government;’ the U.S. Senate consists of 54 Republicans, 44 Democrats, and 2 independents.  The U.S. House consists of 246 Republicans, 188 Democrats, and 1 seat is vacant.  The Presidency, obviously, is held by a Democrat.

Simply put, Republicans have an overwhelming majority in the House, and should be a formidable factor in governance of our Nation and the direction in which it is headed.  While Republicans also have a majority in the Senate, it isn’t sufficient to overcome the ability of Democrats to block any legislation that comes before the body.  This stems from the ‘time-honored’ procedure mentioned above.

Given current congressional profiles, and the fact that the House has a new speaker, Paul Ryan, it’s easy to fall into the trap of believing that Republicans in the House should be able to exert considerable control over the legislative agenda, and hence the general direction of our government and our nation.  They can pass bills easily and send them on to the Senate.

All too easily, it turns out, because as long as the rule of 60 exists in the Senate, legislation sent over from the House has virtually no chance of being debated on the floor, let alone voted on.  This state of affairs is rationalized on the basis of ‘protecting the interests of the minority’ in the Senate.  Sounds good at first, until you realize that it does exactly the opposite for the American people, who with their votes constitute both bodies of Congress as they see fit.

Mitch McConnell, the current Senate Majority Leader, has the power, we are told, to change the rules so that a simple majority could put legislation approved by the House on the Senate floor for discussion and a vote.  When both chambers reached agreement on the bill, it would be sent to the President for his signature or veto.

In reality, however, because of the Senate rule, legislation approved by an overwhelming majority in the House dies in the Senate because Republicans don’t have a filibuster proof majority.  So the Senate constipates the gastro-intestinal system of Congress, blocking legislation from passing.  Absent a super-majority, for all intents and purposes, the Senate amounts to a useless chamber of self-absorbed patricians, given to bloviation and power preservation.

This holds true no matter which party is in the majority, as long as they have 59 or less seats.  Think about the numbers for a moment, and you realize that rarely will one party have a super-majority.  Either party holding between 41 and 59 seats implies that the Senate, under current rules, is a feckless bunch of blowhards inhabiting the ‘most exclusive debating club’ in the world.  They’re more interested in strutting then they are in leading.  Like the Beefeaters, they amount to ceremonial “yeoman guardians extraordinary.”

This wouldn’t be so bad, I suppose, if the only thing they did was neutralize the majority powers of the House in situations like we have today.  Paul Ryan could shepherd a bill through the house to a compelling vote of approval, and the Republican held Senate would be powerless to act upon it.  Unless, of course, the bill was so irrelevant that it has wide bi-partisan support.

Now imagine that the Senate is as we currently have, but the House had a Democrat majority.  The same circumstances would apply.  The Senate would lack a filibuster proof majority, and would therefore be unable to act upon legislation sent over from the Democrat majority House.

In other words, unless the Senate has a constitution of 60 or more members of one party or the other, it not only can’t act decisively on its own, it neutralizes, or emasculates the House, regardless of who controls it.

Which is to say that in the limit, the super-majority rule (filibuster) in the Senate will almost always neutralize the powers of the Legislative Branch of our Federal Government.

Or in other words, enable the unitary presidency, in which the executive rules by fiat and executive order.

This is, in other words, about much more than the arcane rules of a small body of elected elites; it is about the very ability of elected officials to exercise the powers granted to them by the Constitution and the will of those who elected them.

This is not a good thing.  A legislative branch that can’t act, as appealing as that can sound in some contexts, is a worthless assemblage of eunuchs, and with the challenges facing us today, both fiscally and existentially, this is a death sentence for the American experiment.

Especially with an executive determined to make transformative changes to this country.  Under the circumstances, this stubbornness on the part of Mitch McConnell (at the moment) seems near-suicidal.

Surely there must be a more responsible way of going about things.

In the meantime, is it any wonder the candidacy of Donald Trump has so much traction?


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