There are many innovative ways that have been proposed to correct the inequities in our election systems and representation without constitutional amendments. We will address just one in this article - reform of the filibuster.
The League Position
The League of Women Voters has a history of calling for filibuster reform to ensure a functioning democracy - to end gridlock, partisan warfare, and limit obstruction in the Senate.
What is a filibuster?
A filibuster is an internal Senate rule that provides that no legislation can pass without a three-fifths vote (60 Senators).
This three-fifths rules applies to all matters that come before the Senate for a vote with the exception of Presidential appointments and the budgetary legislation. The rule also applies to any changes to Senate rules.
The filibuster has a long and storied past and was probably instigated for good reasons. However, it has evolved into partisan gridlock which now allows a minority of Senators (actually just one) to prevent a legislative bill from coming to the Senate floor for a vote.
The filibuster is unique to the Senate and its roots are long and tenacious. It was rarely used but became particularly popular in the Jim Crow era to defend segregation and lynching and to block civil rights legislation. It has now, unfortunately, become almost commonplace.
One popular way to keep the legislation from coming to the floor for a vote is to debate the bill endlessly. This was originally called the "talking filibuster".
The reason that the debate is associated with the term filibuster is because the debate can only be closed when 60 or more Senators invoke cloture - closing of debate - and allowing a vote to take place.
The aim, of course, is ultimately delaying or preventing a Senate vote on said opposed bill, resolution, court appointment, amendment, etc.
Senators now use an incredibly lazy approach called the -"silent filibuster" - which among other things would allow any Senator, anonymously and without even showing up, to indicate intent to filibuster and to hold up any piece of legislature. This intent is then used by the Senate leader to obstruct any bill introduced by the opposition party - claiming that there were not 60 votes to bring cloture. By not having to debate and vote on a bill, no one is held accountable to the electorate for their yay or nay. And nothing gets done.
A recent study has shown that a threatened filibuster blocked or significantly delayed legislation about 8% of major legislation in the 1960s and about 70% in the 2000s.
How was the Senate envisioned by the founding fathers?
By design of the founding fathers, the Senate represents states and not people. Each state, regardless of size, gets to elect two Senators. Over time, however, the nation’s population had migrated and shifted dramatically. As an example, the population of the state of Wyoming would not make the list of America’s top 25 largest cities - effectively giving its citizens 70 times more representation in the Senate. Just 18 Senators represent over 50% of our population - while 82 Senators represent the remainder.
Why does this over/under representation matter?
- White Americans are overrepresented in the Senate; and Blacks and Hispanics are underrepresented. This is a result of our largest states (think New York, California, etc) are growing and are more ethnically diverse and smaller states (think Wyoming and the Dakotas) are staying small and are overwhelmingly white.
- More federal money per capita go to small states as opposed to larger states.
- Senators representing as few as 11% of the total population can block bills from passage.
- The Constitution gives the Senate (and its minority representation) complete power over all treaties; veto power over all federal court nominations; and power in passing legislation.
The Senate must constitutionally remain with 2 Senate votes per state. The over/under representation is made far worse by the filibuster rules.
Can the Filibuster be reformed?
Yes. There is no mention of the filibuster in our Constitution or any supporting documentation. Each chamber of Congress is allowed to make/change their own rules - and have.
In fact, the filibuster has been "reformed" every time the "nuclear option" is used. The nuclear option is a procedure to change the three-fifths rule to a simple majority rule for a specific action. It was used by the Democrats to change Presidential appointments (except for Supreme Court nominations) to a simple majority vote. The nuclear option was used recently by the Republicans to make Supreme court nominations a simple majority vote - in order to pass a President’s nominee to the Supreme Court.
Remedies, Anyone?
- Abolishment - this already occurs whenever the "nuclear option" is used.
- Lower the threshold on cloture to a smaller number - perhaps 55 Senators.
- Create a sliding scale - perhaps starting with 60, and sliding downward.
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Mary Ann Reeves, LWV of Tennessee
I would like to give my heartfelt thanks and gratitude to two authors who have written two excellent, highly readable books on our election systems and democracy. They have given me their approval to unabashedly use their material. I have tried to stay true to their intent and words but I accept full responsibility for any and all errors:
Professor Steven Mulroy, Professor of Law, Memphis State University: Rethinking US Election Law: Unskewing the System. Available at Amazon.com.
Kristen Eberhard, cum laude from Duke University School of Law, Director of Democracy at Sightline Institute: Becoming a Democracy - how we can fix the electoral college, gerrymandering, and our elections. Available at BecomingaDemocracy.org; published by Sightline Institute.
Other sources include: senate.org and the LWVUS website.