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Lessons of 9/11 Ignored, and Filibuster Follies

This column is mainly about the Senate, but I have to start the first column after the 9/11 anniversary in a different way.

[IMGCAP(1)]It is now nine years — nine full, long years — since that great catastrophe that came within an inch of devastating Congress and leaving the country potentially without its first branch of government for months. In nine years, Congress has done nothing positive to protect itself or the other branches from potential disaster wrought by a terrorist attack.

Five of the nine years were under Republican rule, and I appropriately excoriated then-Speaker Dennis Hastert (R-Ill.), then-Judiciary Chairman Jim Sensenbrenner (R-Wis.) and then-Rules Chairman David Dreier (R-Calif.) for their obduracy and wrongheaded focus. Their actions amounted to a blatantly unconstitutional House rule altering the clear requirement for a majority of the body to make a quorum, and a ridiculously sloppy and unrealistic bill to force expedited elections — sham elections, in fact, that would leave no time for voters to choose candidates or have any real campaigns — in the event of a catastrophe.

Well, we have now had four years under Democratic rule, and Democrats have done nothing at all. They have shamefully left the unconstitutional rule in place, held one brief hearing in the House Judiciary Committee on the broader issue, failed to hold promised hearings in the Rules Committee, and not considered at all the flaws in presidential succession or the complete lack of a plan for the Supreme Court. The onus is on Speaker Nancy Pelosi (D-Calif.), House Majority Leader Steny Hoyer (D-Md.), House Judiciary Chairman John Conyers (D-Mich.), Constitution Subcommittee Chairman Jerrold Nadler (D-N.Y.) and Rules Committee Chairwoman Louise Slaughter (D-N.Y.), and all have failed miserably in a high-fiduciary responsibility to their own institution.

The Senate actually did better under the Republicans, thanks to the leadership of then-Judiciary Constitution Subcommittee Chairman John Cornyn (R-Texas) and the involvement of his ranking member Russ Feingold (D-Wis.). But Feingold, now the chairman of the subcommittee, has done nothing with the issue since, and the Senate Democratic leaders Harry Reid (Nev.) and Dick Durbin (Ill.) have been AWOL, just like their Republican predecessors Bill Frist (Tenn.) and Mitch McConnell (Ky.).

It is sad that no one in leadership seems to feel any responsibility for the future of their own institution and its place in the Constitution. The chance of another deadly terrorist attack in our lifetimes is very, very high, and the odds are it will focus on Washington and the branches of government. If the country ends up with Congress decapitated and under a form of martial law, history will judge them all harshly.

On to the main topic. I wrote a piece on the filibuster in the New York Times over the recess, and people can’t stop talking about it (I know, I used that line once before, but I can’t help myself.) In the Times piece, I focused on the desirability of putting the onus for extended debate where it belongs — on the minority trying to keep debate going, not on the majority trying to end it. It would be nice if the Senate under its existing rules could just call the bluff of filibusterers and go around-the-clock, bringing the place to a halt. But to do so now, when filibusters are used and threatened routinely for bills and nominations major and minor, is not workable.

Especially after the 1975 rules change that moved the bar from two-thirds of the Senate present and voting needed to invoke cloture to three-fifths of the whole Senate, there was no effective way to keep all the minority members on or near the floor, sleeping on cots and disrupting their schedules and lives. In the Civil Rights era, Southerners wanted to take to the floor and talk for hours and hours, to dramatize to their constituents that they would go to any length to protect their “way of life.”

Now, where most filibusters are simply to gum up the works, or are invoked by individuals or small coteries for parochial purposes, there is no desire on the part of most of those in the minority to talk at all. They prefer to raise the bar effortlessly and make the majority jump through impossible hoops to try to end debate, including on widely supported measures and nominations. Go around-the-clock, and the minority only needs a couple of its senators to stay on the floor and prevent unanimous consent agreements while regularly noting the absence of a quorum and forcing the majority to come to the floor to keep the session going.

The fact is that it is extremely difficult under the rules to force minority members to debate on and on; the vaunted “two-speech” rule has lots of loopholes, especially on bills, and there are too many other ways to stretch out the time and make the threat of calling an around-the-clock session an idle one.

I believe in a role for an intense minority that cares deeply about an important issue being able to have the ability to filibuster, but it should have to put its proverbial money where its mouth is, being willing to make serious and extended sacrifices to achieve its goal. That means first shifting the burden — two-fifths of the Senate needed to continue debate, rather than three-fifths needed to end it. I am open to a variety of ways of doing so; one idea from Congressional rules guru Steve Smith of Washington University is to require, after a first motion to continue debate is approved by more than two-fifths of the Senate, that the presiding officer call for a vote on the underlying motion if no senator seeks recognition to speak. This would force filibustering senators to actually debate, where now, if no one speaks, the presiding officer just ends the session.

There are other ways to compel filibustering senators to stay in the chamber during around-the-clock sessions, and ways to adjust antiquated rules to reduce the purely dilatory tactics. There is no reason to require that bills and amendments be read in their entirety if there is a rules requirement to have them published in advance online; there is certainly no real reason anymore to enable committee sessions to be blocked when the Senate is in session, and of course, there is no reason that there should be any filibusters on motions to proceed, or thirty additional hours of (usually) non-debate allowed after cloture is invoked.

I don’t want to see a majority-dominated Senate, or a Senate that is a smaller version of the House. I am very much aware the majority can and does abuse its authority by shutting out the minority, filling the amendment tree not just to try to reduce the number and role of filibusters but to prevent any embarrassing minority amendments. The minority should have some weapons at its disposal to make high-handed majority actions suffer consequences. But the way the Senate operates now is dysfunctional and costly, to the fabric of the institution, to quality and timely policymaking, and to the hundreds of fully qualified and vetted people left unfairly twisting in the wind awaiting confirmation to executive or judicial nominations.

Norman Ornstein is a resident scholar at the American Enterprise Institute.