Commentary

Halsey Frank: A Senate divided needs to listen to each other

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Last week, Democrats brought to the Senate floor The Freedom to Vote Act and The John Lewis Voting Rights Act. In 51-49 votes along party lines (with the Independents voting with the Democrats), both failed to achieve cloture.

Both bills were written and sponsored by Democrats. They contain wide-ranging provisions to nationalize many aspects of campaigns, including campaign financing, voter registration, voting, election administration, and post-election audits. Some of those provisions seem reasonable, like establishing a national standard for the form of identification required to vote and requiring a paper record of a person’s vote. Some do not, like having the attorney general of the United States decide whether claims made during campaigns are misleading and respond to them. Others seem inconsistent, like expanding early voting and making election day a national holiday.

But there was little attempt to find common ground. Democrats described the situation as another existential crisis in which our democracy is at stake, and they demonized the opposition as racists and fascists.

Majority Leader Chuck Schumer then brought to the floor a motion to change the Senate rules to apply a talking filibuster to the bills where senators have to be present in the chamber and speak in order to hold the floor. It too seemed like a hollow gesture, one made without any intention of meaningful debate and only with the goal of having Republicans speak to an empty chamber so that Democrats could pass their legislation with a simple majority, party-line vote.

It failed to achieve the simple majority required because two Democrats voted against changing the rules governing the filibuster.

Both defeats were expected.

I understand that good faith is in short supply these days. But everyone bears a share of responsibility for it, and another round of overreach is not the way to cure this deficiency. Democrats seem to have forgotten how much they used the filibuster themselves, and how the last reform was turned against them. In truth, good faith is what’s needed. No system can operate without it.

On the other hand, we have got to find some way out of the endless, downward spiral of recrimination that we are in. It’s worth considering some innovation that fosters meaningful engagement and facilitates compromise. Perhaps a version of the talking filibuster with the addition that a quorum has to sit and listen, and the vote to end debate has to include some member of the minority party.

The filibuster is the practice of a single senator debating an issue until a majority of 60 senators vote to end debate (“cloture”). Filibustering can serve several functions: to encourage thoughtful deliberation in which members have the right to present their view and the opportunity to hear others; to protect a political minority from the tyranny of the majority; or to obstruct the passage of a bill.

The United States Senate Historical Overview of filibusters and cloture says that the tactic of making long speeches to delay action on legislation has been around since the very first session of the Senate in 1789. The practice of talking a bill to death became more prevalent over time and led to calls for some limitation.

Even so, it wasn’t until 1917 that the Senate adopted the rule creating cloture. In 1975, the Senate reduced the number of votes required for cloture from two-thirds of senators present and voting (67) to three-fifths (60), and provided that they didn’t have to be present.

In 2013, Majority leader Harry Reid and Democrats altered the filibuster to allow a simple majority to end debate on most nominations. In 2017, Mitch McConnell and Republicans eliminated the filibuster for Supreme Court nominees making it possible to confirm Supreme Court nominees Neil Gorsuch, Brett Kavanaugh, and Amy Barrett.

According to Sarah Binder, a senior fellow at the Brookings Institution, the filibuster was created by mistake, the Senate has never been a sanctuary of deliberation, and the cloture rule wasn’t a reflection of the Senate’s reverence for deliberation, it was the product of hard-nosed bargaining between President Woodrow Wilson, who wanted to arm merchant ships during the First World War, and an obstructive Republican minority, who didn’t.

Others disparage the filibuster as racist. Some disparage the Senate itself as the product of a crass compromise struck at the constitutional convention between small and large states, a corrupt discussion club that stands in the way of unfettered majority rule.

But compromise is essential to forming the majorities needed to pass legislation in a democratic system. Demonization of the opposition makes it harder to achieve. Meanwhile, there are several aspects of our government that are designed to protect minorities. That’s supposed to be part of its virtue; virtue that the opponents of the filibuster embrace in other contexts.

My sense is that the filibuster is consistent with the original plan for our federal government. The Senate was intended to be the smaller, more stable, thoughtful, deliberative and long-range thinking of the two houses of our national legislature, and a restraining influence on the larger, more popular and more volatile House.

Whatever the origin and historical reality of the Senate’s reputation for debate, of the filibuster and the cloture rule, what we need at this moment in time is more thoughtful, civil discourse and more compromise, not more exercise of raw political power to impose one side’s will on the other.

Our politics has become too antagonistic. People don’t engage with the other party, they reflexively reject them; on social media and in person, and in business and their personal lives–within their own families, even. It breeds resentment that only adds to the partisan acrimony. 

We need to resist that tendency, not further submit to it. Our leaders should set a good example. They used to (think of Orin Hatch and Edward Kennedy, Ronald Reagan and Tip O’Neill). Getting rid of the filibuster will contribute to the lamentable trend. Reforming it in a way that facilitates engagement may move us in the right direction. That’s the way we should go.

About Halsey Frank

Halsey Frank was born and raised in and around New York City and nearby Englewood, NJ. He graduated from the Dwight Englewood School, Wesleyan University and the Boston University School of Law. After law school, Halsey worked for the Department of Justice for 34 years, first as a civil litigator and later as a criminal prosecutor and civil attorney in the U.S. Attorney’s Office for the District of Columbia. In 1999, Halsey moved to Maine where he worked as a civil attorney and criminal prosecutor in the U.S Attorney’s Office until 2017, when he was nominated by the President and confirmed by the Senate to be Maine’s U.S. Attorney, the chief federal law enforcement officer for the District of Maine. Halsey retired from the Department of Justice in February 2021. Prior to becoming a U.S. Attorney, Halsey was active in local affairs, including the Portland Republican City Committee, the Friends of Portland Parks, the Friends of the Portland Public Library and the Maine Leadership Institute. He previously authored a column entitled “Short Relief” that appeared in The Forecaster regional newspaper. His views are his own.

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