Rethinking the Filibuster

Right From the Start

In Monday’s edition of the Wall Street Journal Rep. Andy Biggs (R-AZ) called for the elimination of the filibuster in the United States Senate. Mr. Biggs may want to rethink his position although his complaints are absolutely valid.

Mr. Biggs served in the Arizona Legislature for nearly fourteen years – first as a state representative and then as a state senator including a stint as President of the Arizona Senate. During that time the Arizona Legislature was under the firm control of Republicans – both the House and the Senate, and generally by healthy majorities. Never having been in the minority, Mr. Biggs never experienced the “tyranny of the majority.” (Well, Republicans did have to suffer the six years of Gov. Janet Napolitano (D-AZ) but they still controlled the legislature.) In marked contrast, the minority Arizona Democrats would sell other people’s children for a way to stop or slow down the conservative tide that defines Arizona. (Liberals always want to use other people’s money, property and, probably, children, to advance their great ideas.)

Arizona does not have a “filibuster” provision. From Mr. Biggs’ standpoint in the majority that was unnecessary. Unlike congressional Republicans, Arizona state legislative Republicans seem to be able to find common ground with only minor debate and disagreement. That’s probably due to the fact that in Arizona the concept of “citizen legislator” leans heavily towards “citizen” while in Congress, that whole concept has been abandoned in favor of “princes of the realm” – royalty – whose every thought and deed so far exceeds the understanding of the masses that they have come to ignore them out of a sense of noblesse oblige.

And while the Republican have maintained control of Congress for the last four years, that is a recent – and probably temporary – occurrence given that the Republicans have broken faith with those who elected them by failing to do anything constructive – repeal Obamacare, enact substantive tax reform, balance the budget and reduce the national debt. When the tables are turned and the Democrats have returned to control, you can assume that it will look exactly as it did in 2009-10 when they rammed Obamacare without a single Republican vote and without a single Democrat having read the bill. The filibuster may be the only tool available to stem the liberal/progressive agenda.

But returning to Mr. Biggs. He commented:

“The filibuster forces the majority into awkward legislative maneuvers. Take the GOP’s plan to repeal and replace ObamaCare through the Senate’s reconciliation process. The way it works that once a budget is passed, a follow-up bill gets once chance to be reconciled in the Senate with only 51 votes. So first the House had to pass a faux budget, to make reconciliation available. Then House leaders tried to stuff as much ObamaCare replacement in one bill as they thought Senate rules would allow. The result of these wild procedural manipulations was a legislative train wreck that – at least temporarily has halted progress toward the central Republican goal.”

All of what Mr. Biggs has written about the convoluted process is true but it wasn’t the filibuster that caused Republicans to fail. They failed because they were unable to secure a simple majority. They failed because an Arizona senator, John McCain, voted with the Democrats to kill healthcare reform. They failed because there is no party unity, no willingness to accept “the good” even though it may fall short of “the perfect”, and no willingness to allow others to succeed even if you have no solution yourself.

The problem with the filibuster is not its existence. Rather the problem is in the way that it is administered. The filibuster was intended to be an unusual maneuver taken only when one is so deeply committed to opposing a measure that (s)he is willing to stand on the floor of the Senate and prevent the consideration of any matter by speaking non-stop. The exercise of the filibuster required determination, stamina, and eloquence. It also required knowledge of the subject matter to a point that the speaker might raise doubt as to the wisdom of the matter to which (s)he objects. That’s what a filibuster is and that is definitely NOT what is being practiced in the United States Senate with the acquiescence of the leadership of the barely able in both parties.

As practiced by the Senate, the filibuster never requires anyone to break a sweat. A single member can file a statement saying that they intend to filibuster and the burden shifts to the remainder of the Senate to secure sixty votes to “end” the filibuster – not that it ever actually began, not that anyone had to appear and hold the floor, not that anyone had to orate knowledgeably about the measure, and most assuredly not that anyone had to demonstrate the shortcomings of the measure. They just have to file a piece of paper – a feat that even a Luddite like Sen. Al Franken (D-MN) or an eternal scold like Sen. Elizabeth Warren (D-MA) or even a lightweight like Sen. Gary Peters (D-MI) can accomplish. The change in the process was made so that in the day and age of television cameras and the internet, the “smartest people in the nation” were not forced to stand and make fools of themselves with a live demonstration of their ineptitude, their pettiness, and their inarticulation. In the halls of the United States Senate where lions once roamed, you now have only dullards and posers.

The Senate should return to the original rules governing the use of the filibuster. A member or members wishing to filibuster would be required to appear on the floor of the Senate and hold the floor continuously by speaking. The filibuster would continue only so long as the member(s) continued to speak (or other senators got tired of listening and moved to closure). Should the member(s) falter – which they always will – then the legislation moves on to regular order. The filibuster was never intended to stop legislation – nobody could talk forever – it was designed to slow the process, give the speakers a chance to persuade others or to build external support to persuade others.

In the end, the nation would be better off by preserving the filibuster but returning it to its original form. And the nation would be far better off if Mr. Biggs spent more time trying to convince his own states senior senator – Mr. McCain – to resign and allow Gov. Dough Ducey to appoint a successor who is dedicated to representing the interests of the people of Arizona.