Filibuster abuse undermines the democratic process

The approaching end of the 111th Congress is an appropriate moment to look back on a dramatic change that has taken place in the way decisions are made in our democracy.

A determined bloc of senators, wielding the filibuster as a weapon, appears to have wrought a troubling transformation of the basic decision-making principles of our democracy.

Modern filibuster abuse is not a Republican or a Democratic problem, but an issue that should concern every citizen who wants a functioning democracy. No matter their political affiliation, voters across the country agree that once all senators have had a chance to express their views on a bill or nomination, they should vote yes or no -- but not block themselves from voting.

In recent years, abuse of the filibuster has become the expectation rather than the exception in the U.S. Senate, creating huge inefficiencies while derailing the democratic process. Though the Senate averaged approximately one filibuster per year until 1970, senators in the past two sessions have used this tactic roughly 70 times per year. Today, filibusters affect every bill and nomination because all players know that nothing can get an up or down vote without 60 votes for cloture.

Senators no longer even limit their filibusters and holds to bills and nominations they oppose. Too often, the goal is simply to create delay and "run out the clock" so that other nominations or legislation cannot come to a vote. For example, Barbara Keenan's nomination to the Fourth Circuit Court of Appeals was delayed five months before she was confirmed, 99-0.

In other cases, senators will hold a bill or nomination to extort a ransom, usually to advance a pet project or help a favored special interest. This disintegration of Senate norms gives an unprecedented amount of power to single senators, who, with a filibuster, can halt all debate on a bill until a certain provision is either added to or removed from the legislation.

Instead of protecting debate and careful consideration, the filibuster today is used to prevent debate and block the Senate from ever considering a matter. Far from promoting bipartisan compromise, the ability to block all action unless its demands are met removes most incentive to compromise.

This change is in stark contrast to the intentions of the Framers, who believed the Articles of Confederation's requirements of a supermajority had paralyzed the government. In drafting the new Constitution, they limited supermajority requirements to five matters (constitutional amendments, treaties, veto overrides, expulsion of members and impeachment). They emphatically rejected requiring more than a majority for anything else.

Filibuster abuse has also taken an enormous toll on the ability of the Executive Branch to perform essential functions. Key departments of government have been forced to go without senior staff. In the courts, the frozen confirmation process has left one of every eight federal judgeships vacant. Supreme Court Justice Anthony Kennedy recently told the Los Angeles Times, "It's important for the public to understand that the excellence of the federal judiciary is at risk." Almost half of 876 existing federal judgeships could be empty by the end of the decade if the present rate for filling vacancies persists.

The question is not whether the proposals or nominations blocked by filibuster are good or bad, but whether we will be better served by a democracy that functions as the Framers of our Constitution intended: allowing senators to vote, and then letting voters hold those senators accountable on Election Day.

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George Kohl is the senior director for policy at the Communications Workers of America. He wrote this article on behalf of a coalition of groups, including Common Cause and People for the American Way, campaigning against filibuster overuse.

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