Debate Over The Senate’s Use Of The Filibuster

MS. SUSAN PAGE

11:06:56
Thanks for joining us. I'm Susan Page of USA Today sitting in for Diane Rehm. The filibuster is a tactic that allows a handful of senators or even just one to obstruct legislation that's supported by the majority. These days, it's being used with unprecedented frequency. In the studio with me to talk about the filibuster and its repercussions, Richard Arenberg, coauthor of a book "Defending the Filibuster," and Michael Quinn, he's president and CEO of the American Revolution Center, and by phone from Maine, Ross Baker, a political scientist at Rutgers University. Welcome to you all.

MR. ROSS BAKER

11:07:36
Thank you.

MR. MICHAEL QUINN

11:07:36
Thank you.

MR. RICHARD ARENBERG

11:07:36
Thank you.

PAGE

11:07:37
Before we talk with this panel, we're gonna be joined by phone by Democratic Sen. Jeff Merkley of Oregon. Senator, thanks so much for being with us.

SEN. JEFF MERKLEY

11:07:46
You're welcome. It's great to be with you.

PAGE

11:07:47
So you're a senator. If you want a filibuster, what exactly do you have to do?

MERKLEY

11:07:53
Basically you serve notice that you're going to object to a simple majority vote. And that then alerts folks that if they wanna shut down debate, they're going to have to file a petition and proceed to spend basically a week debating whether to close debate and then to hold a vote on that. And they will need 60 votes to shut down debate and get to a final vote.

PAGE

11:08:19
And can you just tell somebody you need to fill out a form, sign a paper? How does that work?

MERKLEY

11:08:23
All you have to do is tell someone.

PAGE

11:08:25
And have...

MERKLEY

11:08:25
And you can tell someone and take off on vacation or off to dinner or off doing whatever while it paralyzes the Senate.

PAGE

11:08:34
Have you ever done that?

MERKLEY

11:08:36
I have not.

PAGE

11:08:38
And so these days in the Senate, how often do you face -- I don't mean have you ever gone to dinner or on vacation. I mean, have you ever filibustered yourself, just to be clear?

MERKLEY

11:08:48
Well, the process of serving notice, I have indicated on a certain amendment along the way that I would object if they went to a final vote until a certain issue got resolved. And so I've given notice that's in that kind of cloudy area, but not in -- but that didn't come to pass, so the short answer is no. And when you say filibuster, people are thinking of people talking on the floor to try to extend debate.

MERKLEY

11:09:16
What they don't realize is we don't really have a filibuster. We have a 60 vote rule. Previously it was a 67 vote rule. And it used to be that because the Senate believed that they were a majority body, if they were to serve notice they were going to object to majority vote, it was a big deal and they wanted to take the floor to explain themselves to the American people, to make their point known, to take credit back home. But they didn't have to and they don't now.

PAGE

11:09:43
Yeah, not the way it works these days. You've been in Senate now almost four years. What do you think the impact of this kind of easy filibuster process is?

MERKLEY

11:09:55
Well, it has paralyzed the body. And it has confused the American public because they see the Senate locked in deep freeze and they're not sure why since folks are not required to stand on the floor and make their case, whether objecting or to a simple majority vote. It's invisible. And the main reform that I've been advocating for is replace this silent filibuster with a talking filibuster. That is if you object to a simple majority, you have to proceed to be available to maintain debate on the floor. You are arguing more debate is needed, so if at any point there is no more debate, we'd go to a simple majority vote.

MERKLEY

11:10:35
This means there'd no longer be this big freebie. You could paralyze without time and energy. You would have to spend time and energy and you would have to be visible to the American people. And the American people would be able to say you're a hero for your obstruction or you're a bum.

PAGE

11:10:48
And so your proposal, as I understand it, also would mean you couldn't do it as a single senator. You'd have to get nine other senators to go along with you; is that right?

MERKLEY

11:10:57
No. In a talking filibuster, there's two ways to shut down debate. The traditional vote, the 60 votes if you will, and the other is for a period of extended debate. And when no one is available to speak, you automatically end debate and go to a final vote. So it really just takes one person on the floor and two individuals working in tandem could maintain that presence indefinitely.

MERKLEY

11:11:17
So if Sen. Wyden and I were fighting for something for Oregon we thought would be devastating or went counter to an initiative that had been passed in Oregon, two of us could maintain our presence, but we would be completely visible to the American people. And at some point the American people may weigh in and say this is ridiculous and they would argue for their home state senators to go and be part of that 60 vote majority to shut us down. But because it's not visible now, it's very hard to develop that kind of feedback.

PAGE

11:11:44
So how many senators are supporting your idea to reform this filibuster?

MERKLEY

11:11:50
We had 49 folks a year ago January. And I say we, Tom Udall and I were leading this effort. Tom Udall, senator from New Mexico. And we had 49 votes for one form or another of the talking filibuster. We did not have the support of the leadership of either party, so that was a pretty good outcome that 49 out of 53 Democrats supported it. The minority leader, Mitch McConnell, pleaded with his folks to absolutely not take away the ability of senators or his minority group to paralyze the Senate.

MERKLEY

11:12:25
And they stayed in line, so we weren't able to get any Republicans on board unfortunately. But I can't tell you how many have told me how frustrated they are with this process, with this invisible filibuster, the paralysis and the inability of the Senate to address the big issues facing America.

PAGE

11:12:41
You know, interestingly the majority leader, Harry Reid, last month apologized for not having supported the moves to change the filibuster. What prompted him to do that?

MERKLEY

11:12:52
Well, he believed that the social contract that had made the system work where there was a courtesy and respect extended by both sides, that the objection to a simple majority would be rarely used could be restored through a gentlemen's agreement between himself and Sen. McConnell. And so he attempted to do this. But unfortunately the gentlemen's agreement with involved both opening the floor to diversity of amendments and not objecting to a simple majority vote broke down virtually immediately.

MERKLEY

11:13:27
And so it's very clear in this polarized world where folks, instead of disagreeing with each other, they demonize each other. The media outlets are multitudinous and throw very sharp elbows. In this setting you need rules that enable the Senate to conduct its business because there's too much temptation to grandstand before the camera, grandstand before the folks back home and carry on a perpetual political war rather than problem solving to address America's issues.

PAGE

11:13:55
You know, Sen. Merkley, we know that the big issue facing Americans this year in elections isn't the filibuster, it's the economy, other issues that press on voters' minds. So what would it take do you think to actually change the way the Senate operates with the filibuster?

MERKLEY

11:14:11
It is traditional that the Senate consider rule changes to the start of a two year period. Constitutionally they can do it any time, but that's traditional. That's referred to by Sen. Udall as a constitutional option. And of course the Constitution says the Senate can organize itself. So what we attempted to do was to utilize that constitutional option a year ago January and we'll attempt to do it this coming January. I think what we have now is additional two years of experience with the Senate, not as the world's greatest deliberative body as we would hope it should be and it was at one point, but as a place where very little debate occurs, very little exchange of views occurs.

MERKLEY

11:14:54
And so it's one of the least deliberative of the legislative bodies on the planet. It's an enormous embarrassment to our nation. It's also quite frankly an enormous impediment to addressing the issues America faces. So we have 49 votes before. I think we have a fairly good chance of getting the majority necessary to change the rules, two more votes are needed, as we go into next January.

PAGE

11:15:19
Sen. Jeff Merkley of Oregon, thank you so much for being with us.

MERKLEY

11:15:23
You're welcome. Great to be with you. Take care.

PAGE

11:15:25
So, Richard Arenberg, what did you think about Sen. Merkley's suggestion that they could get the additional votes they need in the Senate to -- when the rules are set at the beginning of a session to change things? Does that seem -- do you think that could happen?

ARENBERG

11:15:41
Well, first of all, let me say that I have a lot of respect for Sen. Merkley and for the work he's done on proposing specific reforms. But he slides over a very big question about the Senate when he talks about the constitutional option. This is a 200 year old argument in the Senate about whether or not rules can be changed by a simple majority at the beginning of a new congress. There's nothing in either the Constitution or the Senate rules which supports that. And the Senate for its entire history has resisted that. so that under the Senate rules, in order to end the debate and change the rules, it takes a two-thirds vote which means that it would take a bipartisan reform effort. And, you know, Sen. Merkley really kind of just slid over that.

PAGE

11:16:57
Not just bipartisan, 67 senators, that's a lot of votes. Do you agree with that, Michael?

QUINN

11:17:00
Well, that really avoids the issue. I mean, the Senate -- I mean, the whole point is that the Senate has created rules that really seemed to frustrate the concept of popular sovereignty which is founded on the idea of majority rule. Just because they do it in setting up the procedure by which their rules are made doesn't make any more defensible the filibuster itself.

PAGE

11:17:25
Ross Baker, what do you think? Do you think it's possible that the Senate can and will change this rule when they have that 51 vote opportunity that Sen. Merkley described?

BAKER

11:17:35
Well, I'm sorry, Susan, I wasn't able to hear Sen. Merkley's discussion, so I'm kind of coming in on the tail end. My own feeling is that I look upon the filibuster as very much like Methadone which is something that you use sparingly as beneficial, but when overused really becomes disastrous. I certainly think that the filibuster itself is something that the Senate consistent with the Constitution's provision that each chamber be able to make its own rules, has made this decision rule 22 to require the 60 vote threshold.

BAKER

11:18:22
It had been used sparingly in the past as I'm sure that other speakers have said. But I think what we see now is a kind of promiscuous use of the filibusters. However, I do think there is some opportunity for modifying it, particularly on this whole issue of...

PAGE

11:18:39
Right.

BAKER

11:18:40
...basically the two part filibuster...

PAGE

11:18:42
We're gonna take, I'm sorry to interrupt you, just a very short break and we'll come back and continue your thought, and we'll take calls from our listeners, 1-800-433-8850. Stay with us.

PAGE

11:20:04
Welcome back. I'm Susan Page of USA Today, sitting in for Diane Rehm. And with me in the studio, Richard Arenberg, co-author of "Defending the Filibuster: The Soul of the Senate." And Michael Quinn, president and CEO of the American Revolution Center. And we're joined by phone from Maine by Ross Baker, political scientist at Rutgers. Ross Baker, I interrupted you before we went to the break.

PAGE

11:20:27
And I actually wanted to ask you, you have spent time working in the Senate. What kind of impact does the very frequent use of the filibuster have in today's Senate?

BAKER

11:20:38
Well, I think, Susan, that it's over-use really has a current depressing effect on the institution because you've got to always make calculations. And I've seen this from the point of view of the leadership office. I spent the last, what, five months in the office of Harry Reid, the majority leader. And it definitely complicates things. Filibuster can come out of nowhere. You have to basically be ready on all occasions to file what's known as cloture motion, which is something that the majority leader does, which has now become routine.

BAKER

11:21:16
And I think it's at the very routinization of the filibuster that's what I find problematic, because I really do think it just bogs down the Senate endlessly. And also on issues that are not even relevant to the matters are of most importance to the United States Senate.

PAGE

11:21:35
And the use -- you're saying the filibuster used to used to only rarely, now used quite a bit. Why is it, Richard Arenberg?

ARENBERG

11:21:43
Well, let me just say that I certainly agree that what we've seen in recent years is abuse of the filibuster. But let me just say to kind of set a baseline here, where the value of extended debate is. I mean, the pillars, the twin pillars of the character of the United States Senate through its history has been extended debate and virtually unfettered amendment. These are fundamental protections for the minority, the legislative minority in the Senate.

ARENBERG

11:22:24
This is what distinguishes the Senate from the House of Representatives majoritarian body. The majority very closely controls everything that goes on in the House. They control what amendments can come up, when votes will occur, what the rules for the votes will be, et cetera, et cetera. In the Senate, the majority has to consult to a certain degree with the minority and this is because we have this supermajority requirement.

ARENBERG

11:22:58
Now, it's a mistake to focus just on the use of the filibuster. And I agree that it's been abused. And I certainly support certain reforms. But the important thing to understand is that this requirement, which is imposed by the filibuster is a part of the fabric of the Senate. The Senate has been a body marked by its, until very recently, by negotiation, compromise, consensus. And it's the need to step across the party line.

ARENBERG

11:23:36
I worked for 34 years in the Senate for three U.S. senators, all Democrats. And never once ever in those 34 years did I bring a legislative proposal to one of those three Senators where the first question I got back wasn't, who's my Republican co-sponsor.

PAGE

11:23:57
But speaking of the current-day Senate, do you think it still works, the filibuster is still working to ensure that kind of full debate that we want to see?

ARENBERG

11:24:05
Well, I think we're certainly seeing bad behavior. And the question is, is the solution for the bad behavior to rewrite the Senate rules, particularly to do away with the filibuster. If you do away with the filibuster, this is a very slippery slope. And...

PAGE

11:24:21
But of course, Senator Merkley was not calling for doing away with the filibuster, but for requiring it to be a standing, speaking, debating filibuster.

ARENBERG

11:24:29
That's why -- see, that's why I raised the question of the constitutional option. It becomes critical how you go about changing the rules. I think there is an opportunity for reform right now. I think there's a window for reform for the simple reason that between now and November, no senator can be certain, no Democrat, no Republican can be certain which party will be in the majority in January.

ARENBERG

11:25:00
So, it's -- the potential for the leadership to come together and try to work out some adjustments to the filibuster rule may be Senator Merkley's proposal on the table, it would be possible then to do it within the Senate rules and not start down this slippery slope that does away with it.

PAGE

11:25:23
Within the Senate rules getting 67 votes.

ARENBERG

11:25:25
Yes.

PAGE

11:25:26
Ross Baker, what do you think about that? Is there a window of opportunity here?

BAKER

11:25:30
Sure, I think so. I actually agree with Mr. Arenberg. I think we need only to look at the current Farm Bill that the Senate has managed -- apparently they're going to be voting on it today. And it was the result of cooperation between Senator Debbie Stabenow, who's the chair of the committee, and Senator Pat Roberts, the ranking minority member. The Senate did it. The Senate did its job and it did its job. And, you know, I think in the face of the filibuster.

BAKER

11:26:01
And there's a consensus to develop in the filibuster is the consensus forming device. The problem now is that the House of Representatives, Majority Leader Eric Cantor apparently has decided that the House is not going to go ahead and process the bill. So the Senate basically has managed to do some rather important things, not perhaps the most important things over the last several weeks, but things of considerable significance.

PAGE

11:26:30
But is there a window of opportunity, Ross Baker, for changing the rules of the filibuster so it doesn't get abused?

BAKER

11:26:37
I do think so. I do think so. And as I was saying before, one of the problems is the two-part nature of the filibuster. That is, you can filibuster a bill at two points. The first is the point, well, can you even debate it and the second is can you wrote on it. And I think it's the motion to proceed. That is the motion to go ahead with debate is not subject to filibuster. But that's something -- that's a reform I personally would support.

PAGE

11:27:08
And, Michael Quinn, tell us, is this -- do the founders envision having a device like a filibuster in the Senate?

QUINN

11:27:14
Well, Susan, thanks for asking because I think it is important to bring a little bit of the historical background into this. And I certainly -- and if you look at the Constitution, the characteristics that Richard has pointed as distinguishing the Senate from the House, I don't see them. I mean, what distinguishes the Senate from the House is that it was constituted to represent the states. The other thing is that the filibuster is kind of self-created.

QUINN

11:27:43
And, in fact, when the Senate first convened and the rules adopted in 1789, there was -- they did not permit the filibuster. They did not come about until 1806. And it seems to be the legacy of Aaron Burr, one of our more infamous political Founding Fathers, if you can even call him that, having killed Alexander Hamilton and essentially been convicted of treason. When as he left office as vice president, he commented that the previous question rule had been only used once in the previous four years, thus the Senate ought to do away with it.

QUINN

11:28:21
And to think that, you know, it's Aaron Burr's legacy that is now pointed to as the important distinguishing characteristic of the Senate is not to me what we should be looking at. I mean, if you look at the federalist papers, our founders knew the problem was supermajorities. They -- that was the basis on which the articles of the confederation were established. And what it essentially resulted is a government body that could do nothing. And I think we're sort of seeing history repeat itself perhaps in that respect.

PAGE

11:28:56
All right. Let's go to the phones and let some of our listeners join this conversation with your comments or questions. We'll go to Patrick who's calling us from Cleveland Heights, OH. I'm having a little trouble getting Patrick. I'm sorry, I'm having trouble with the phones. I'll ask the engineer to take a look at that and we hope to get back to some of our callers. We have an emailer, Keith, who writes us from Silver Spring.

PAGE

11:29:17
He said, "Simply put, in the filibuster, it is a cynical action and serve just one purpose, to obstruct another action that should ended as the anonymous member hold-ups have the courage to be public about it." This anonymous member hold-up issue, Ross Baker, what is that?

BAKER

11:29:34
Well, I guess you can kind of characterize it as a micro-filibuster or mini-filibuster in which, you know, certainly evolved as a courtesy to senators and it's a great deal of courtesy surrounding the etiquette of the United States Senate, which would be that a senator perhaps have to be out of town or off the Hill or would go to majority later and say, could you postpone a vote or I'm going to be out of town for a week, could you postpone this until next week.

BAKER

11:30:02
But, you know, it, like the filibuster, has been used excessively. And I think the anonymous feature of it, I think, is something also which I think has caused it quite rightly to follow disrepute.

PAGE

11:30:15
Yeah. I think we have Patrick on the line now. Patrick, can you hear me?

PATRICK

11:30:18
Yes, I can.

PAGE

11:30:19
Great. I'm glad we worked that out. Tell me, what comment did you want to make.

PATRICK

11:30:24
Well, I wanted to comment, first, that I believe the filibuster is unconstitutional or at least very arguably so, which means that the 51 votes that Senator Merkley was talking about could act at anytime on a point of order. But that said, I would like to also just express my personal commitment at this fight.

PATRICK

11:30:43
As a life-long Democrat and supporter of Democrats that I no longer support the DSCC until such time that it will fund only candidate who are unequivocally committed abolition of the filibuster, because candidates who are not so committed are more interested in preserving their individual power to extract concessions and political whatever rather than to the will of the majority. And are therefore, I believe, undeserving and unqualified to be members of a legislative in a democratic society. That's my comment.

PAGE

11:31:19
All right, Patrick, thanks so much for calling. You know, we do have a case, a lawsuit that's been filed by Common Cause along with four U.S. senators arguing Patrick's very point that the filibuster is unconstitutional. Michael Quinn, do you think they have a strong case? Is it possible that the courts will act?

QUINN

11:31:35
I think the lawsuit, really, it points very concisely to the factors that argue in their favor. And just to summarize them quickly, I think you would start with the fact that the Article 1 of Constitution says that each senator shall have one vote. And reading it through, while there's no clear statement that each House of Congress should act by majority, Article 1 does specify when a supermajority is necessary. You put all those things together, it seems to me that the most logical inference is they're expectation was that it would be acting by majority.

PAGE

11:32:15
I'm Susan Page, and you're listening to "The Diane Rehm Show." We're taking your calls, 1-800-433-8850. Richard Arenberg, do you think that the argument that the filibuster itself is unconstitutional will stand up?

ARENBERG

11:32:28
Well. no. First of all, I think it's very unlikely that the federal courts will take up a 200-year-old argument about the Senate rules. But if they do and if they were to find the Constitution -- the filibuster unconstitutional, which in my view it's clearly not, Article 1 Section 5 says very clearly that each House of Congress has the right to write its own rules. The Senate has written its rules and it stood by them.

ARENBERG

11:33:02
And I might add that that, you know, the whole point about, you know, people who want to change the filibuster are fond of pointing to 1806 and saying, well, it was just an accident. Aaron Burr suggested to, you know, doing away with this motion. But I think it has no meaning to talk about something as having been an accident after the Senate has now spent 200 years defending that accident, of reinstating it over and over again.

ARENBERG

11:33:38
In fact, the Senate passed Rule 5, which states, affirmatively states that in order to change the Senate rules you have to follow the Senate rules. Seems obvious but they felt the need to reinstate that.

PAGE

11:33:52
Michael Quinn, what do you think?

QUINN

11:33:54
Well, you know, the whole -- again, I think I'll go back to the Constitution. It starts out with the words, we the people. And I think that the founders' idea was that there was a balance and that was created by the mechanisms of the Constitution. That is, a bill has to pass both Houses and it has to be then approved by the president. I don't think that -- I think it's hard to say to find a constitutional basis that permits one of those houses, then to create mechanisms within it that are even more restrictive on the democratic process.

QUINN

11:34:33
I think the founders understood that government can fail because of a lack of energy and because of being too energetic. And they're trying to find the middle balance. The debate we're having is, have we moved -- has the pendulum swing too far to one side? Should it be rebalanced to the center?

PAGE

11:34:50
Ross Baker, we know there are so much unhappiness with American public about the way Congress works and doesn't work. To what degree does the filibuster -- is a filibuster responsible for the kind of dysfunction that has turned off so many Americans?

BAKER

11:35:06
I think it's a fairly small amount. I think the filibuster, like so much of the legislative process, is rather poorly understood by the general public. But I think the politicians in general are falling into this repute. So I wouldn't think that the filibuster would figure that prominently in what seems to be a sort of general negativity toward politics, toward government. So, I don't think that's the case.

BAKER

11:35:33
I'll just like to add that if, in fact, the filibuster is changed, it will certainly not be by a decision by the Supreme Court. I think it's most unlikely that the Supreme Court would nettle in the internal affairs of one of the coordinate branches of government. And I think if changes are made, it will be by a two-thirds vote. And I do think, as you pointed out earlier, that there is a window of opportunity because of the very uncertainly of who will control the Senate in 113th Congress.

PAGE

11:36:08
Richard Arenberg, that's just the point you were making.

ARENBERG

11:36:09
Yeah. Yeah, right. And, you know, I wanted to point out, building on what Ross was just saying, that the problem, the crux of the problem is not the filibuster, it's the hyper-partisanship that we've seen in both houses of Congress and in fact in much of our political culture. And if you think that turning the Senate into a majoritarian body with a simple majority vote is the way to solve that problem, you have to love the House of Representatives, you know, where the majority doesn't even talk to the minority any longer.

ARENBERG

11:36:49
The leaders don't talk to each other. And, in fact, the legislative minority in the House of Representatives is largely irrelevant.

QUINN

11:36:59
And that's an absolute -- I actually agree with that point. But at the same time, if you think about democratic theory, what you end with is there's no better approach that rule by majority bounded by the constitutional limits on how laws are enacted and limited by the inviolability of individual rights. Anything else, you have to start questioning.

PAGE

11:37:22
Michael Quinn, he's president and CEO of the American Revolution Center and previously president and CEO of James Madison's Montpelier Foundation. And Richard Arenberg is also joining us. He's an adjunct professor at Brown University, Northeastern University and Suffolk University. And Ross Baker, a political scientist at Rutgers is also with us. We're going to take a break. When we come back, we'll go straight to the phones, 1-800-433-8850. Stay with us.

PAGE

11:40:04
We're going to go first to Spencer, who's calling us from Ann Arbor, Mich. Spencer, hi, you're on the air.

SPENCER

11:40:10
Yes, I was going to mention the point that actually the senate serves as originally the state legislatures elected senators. So it was actually the state legislation check on federal legislation. Unfortunately, they amended the constitution to allow direct election of senators. So the states that want that check on the federal government I was wondering if you could talk about that.

PAGE

11:40:38
All right. Thanks very much for your call.

QUINN

11:40:40
Well, you know, he's absolutely historically correct. And that, I think, was the reason that -- and that was intended to be the different characterization of the senate from the house. There were -- I will add there were very good reasons to change that because prior to that senators were appointed, basically, at the discretion of the state legislature. And that proved that that system was open to many, many flaws. And so I think it's hard -- I'm not sure I would agree with the caller that we should go back to the original approach.

QUINN

11:41:15
And, in fact, the senate, itself, in its creation was a compromise. So, in some ways, it's hard to say exactly what was the single intent of the senate. Madison did not think it should represent the states. His view would have been it's people that have rights, not states. But it was a compromise between the large states and the small states. So it's sort of a melding of competing ideas.

PAGE

11:41:38
All right, Richard Arenberg, you're nodding your head, yeah.

ARENBERG

11:41:40
Well, yeah -- no, I think that's right. I just wanted to add that traditionally there have been a number of instances in the senate where the filibuster has turned out to be the last resort of the states, particularly the small states that feel as though they're underrepresented in the House of Representatives. And sometimes when they felt that they were behind the eight ball, so to speak, they've used their relative powers in the senate to try to redress that.

BAKER

11:42:19
Rick Arenberg made a point before, which I think is very important. He mentioned the fact that almost anything, in fact, that has a prayer of success in the senate has got to have a democratic and a republican name on it. And the reason for that, at least in part, is because of the necessity for overcoming the 60-vote threshold...

ARENBERG

11:42:38
Right, exactly.

BAKER

11:42:40
... (word?) filibuster.

ARENBERG

11:42:41
You don't hear that question in the house.

BAKER

11:42:44
That's exactly right, you know. And you're observation that the minority party in the house is typically irrelevant, I think, is something probably a lot of people don't like to acknowledge, but, I think, it is very much a fact.

ARENBERG

11:42:58
You know, something that we suggest in our book, if I can make -- if I can add a plug defending the filibuster -- the soul of the senate, which I wrote with Bob Dove, the former parliamentarian of the senate. One thing we suggest is that the majority and the majority leadership and the minority leadership get together to try to address a series of filibuster reforms. But do it with a future trigger, one congress or two congresses into the future.

ARENBERG

11:43:35
The idea behind that would be to manufacture the circumstance in which neither party is certain to be in the majority or the minority because the problem with filibuster reform, quite frankly, has been, you know, as Nelson Mandela said, where you stand depends on where you sit. And senators who have been around in the senate long enough to have served in both the majority and the minority most of them have been on both sides of this issue at one time or another.

ARENBERG

11:44:07
I don't say that cynically. It's just that majorities love the -- hate the filibuster. Minorities love the filibuster and see it as part of the important checks and balances in our system.

PAGE

11:44:18
Bill has sent us an email from Jamestown, N.C. making a similar point. He says, "It seems to me that the filibuster, cumbersome though it is, is a final defense against the tyranny of the majority and such is fundamental to our legislative system."

QUINN

11:44:31
Well, you know, the founders really dealt with the issue of super majorities. And what they concluded -- I mean Hamilton put it very well in Federalist 22 that when he said at first sight it may seem a remedy. It is in reality a poison. The flipside of the super majority is that you're kind of giving a minority a chokehold level of control. And that does defeat the whole concept of a people being sovereign. And through the action of a majority making a decision of how to shape society.

PAGE

11:45:03
So the tyranny of the minority in this case.

QUINN

11:45:06
It's a tyranny of the minority.

PAGE

11:45:07
Yeah, Richard, you were going to add something.

ARENBERG

11:45:08
Well, yeah. Well, first of all, I don't want to get into a federalist papers battle, but Hamilton also said in Federalist 73 that super majorities guard the community against effects of faction or any impulse unfriendly in the -- to the public good which may happen to influence a majority of the body. So he saw some value to super majority situations, also. But, you know, John Adams, who was, of course, our first vice president and, as such, the first president of the senate, once said that mankind will discover that unbridled majorities are as tyrannical and cruel as unlimited despites.

PAGE

11:45:53
You know, Russ Baker, though, to bring it to the current day, you look at something like passage of the Affordable Care Act. And that was done, as I recall, to -- correct me if I'm wrong -- through a process specifically to avoid the prospect of a filibuster through using reconciliation and created some problems that even the Supreme Court is considering even today as we wait for their decision. Is that right?

BAKER

11:46:16
But that's correct, yeah. Basically, it was a provision attached to the budget act that basically -- that budget relevance legislation could be passed by this extraordinary process known as reconciliation. But, you know, the Constitution's replete with examples of super majority provisions. The fact that you need a super majority to initiate constitutional amendments in both houses, you need a super majority for treaties. You need super majorities to remove a president from office by an impeachment trial in the senate.

BAKER

11:46:59
So it's not as if the idea of super majorities was odious to the framers of the Constitution. And I suppose you could say that the filibuster fits in very neatly with that set of requirements.

PAGE

11:47:15
Michael?

QUINN

11:47:16
Well, at the same time I think it's equally valid to suggest that they did understand the -- what happens in our super majority and that's why they were limited when it would be applied. That by identifying when a super majority vote would be required to overturn a veto, to approve a treaty, to expel a member of the house or to impeach the president, they were really by inference saying the rest of the time go with majority rule.

PAGE

11:47:47
Ross, did you want to respond to that?

BAKER

11:47:48
Well, I mean, I just -- I don't know whether silence can be...

ARENBERG

11:47:53
That's right. An inference is an inference.

QUINN

11:47:56
An inference is an inference.

ARENBERG

11:47:56
You know, one thing that Article 1, Section 5 does affirmatively say is that the house and the senate have the right to write their own rules. And the senate, in this case, has done so. In fact, feel so strongly about it that they added Rule 5 in the 1950s to say -- and, by the way, you can only change this by following our rules.

QUINN

11:48:18
Which means a super majority.

ARENBERG

11:48:20
Right, exactly.

QUINN

11:48:22
Which may illustrate, you know, another old adage about how, you know, the power being power corrupting.

ARENBERG

11:48:31
Yeah.

PAGE

11:48:31
Let's go to Andy. He's been holding on patiently from Ocean City, Md. Hi, Andy, thanks for sticking with us.

ANDY

11:48:37
Hi, thanks, perfect timing. Great panel, thoughtful -- thoughtful people. I'm going to say what they can't say, that the framers made a critically flawed assumption. They assumed that for all time honorable people would become senators and congressmen. And those honorable people -- they thought honorable men, but let's just call it people since it's the new millennium. They thought those honorable people would disagree, but they would always act for the common good.

ANDY

11:49:04
We now have two parties. One party, my party, the Democratic Party, always acts for the common good. If George Bush steals an election, my party -- their idiot says oh, the Supreme Court has ruled. Don't go in the streets and riot, no. We're going to let Bush run the country. When the democrats win, even with a huge majority like Barrack Obama did, the republicans dedicate themselves publicly to the destruction of that administration and the country because they wrongly assume that rich people will be okay even if the Chinese own America. And they're wrong. Rich people are not going to be okay.

PAGE

11:49:42
Andy, you obviously have strong views, very interesting to hear them. You know, Ross Baker, we have a book that came out just a couple weeks ago from two political scientists, Norm Orenstein and Tom Mann, that argue, perhaps less flamboyantly, a point that Andy's making that republicans have disproportionately, kind of, mucked up the works when it comes to governing the nation and how congress works. Do you agree with that conclusion?

BAKER

11:50:06
Not entirely. You know, I think that sometimes we are, sort of, captivated by some of the more outrageous things that happen. But there are kind of -- there are positive things that happen in the senate and I see evidence of bipartisanship in many, many committees of the United States Senate. In the farm bill, in the highway bill that at the committee level democrats and republicans have learned to get along with each other.

BAKER

11:50:34
The problem, of course, comes when bills get to the floor in the case of the farm bill now. But I don't know -- I don't get into the business of portioning blame. I think there is blame on both sides. And, you know, perhaps, you know, that marginally the republicans are more to blame, but I don't think that's a terribly productive argument.

PAGE

11:50:56
Michael writes us from Plymouth, Mich. He asks, "Are there any statistics for the frequency of filibuster usage depending on which party is a minority party?" I wonder does anyone on the panel have those statistics in your head?

ARENBERG

11:51:10
Well, I don't have exact numbers in my head, but it's certainly -- what I'll say about it is it's been a steady march in the direction of increased usage starting about in 1980 or so and moving up to the present congress. And it's been a very steep rise. And although I agree with Ross and, you know, in that -- you know, I wouldn't want to say that republicans have been more at fault than democrats. I think it's -- republicans are the current minority in the senate and there's -- it's undeniable that they have used and, as I've said, abused the filibuster more than anyone in the past.

PAGE

11:51:59
But what we don't know, I guess you're saying, is what -- would democrats be doing the same thing at this point if they were in the minority in the senate?

ARENBERG

11:52:06
Well, you know, I don't -- you know, I don't want to make that argument, but I think it's an open question.

BAKER

11:52:14
I mean, looking back, historically, one of the great filibusters was Senator Metzenbaum from Ohio and he was also -- he also used the hold very liberally, too. And this was when Bob Dole was the majority leader and so, you know, there are -- in the minority -- when you are in the minority in the senate there's the temptation to use the filibuster is sometimes overwhelming.

PAGE

11:52:38
I'm Susan Page and you're listening to "The Diane Rehm Show." We're taking your calls 1-800-433-8850. Let's go to Jeffrey. He's calling us from Syracuse, N.Y. Jeffrey, thanks for joining us on "The Diane Rehm Show."

JEFFREY

11:52:50
Well, thank you. A big factor that I have not heard mentioned in this lack of comedy and promotion of antagonism between the parties is that in the '94 class of Newt and his leadership actually had seminars, retreats and whatnot with psychiatrists and psychologists to teach his party members how to, sort of, diss the other party. Even to the point of don't look them in the eye, move your families out of town. They even -- I think last year -- withdrew from the softball league.

JEFFREY

11:53:27
And so this is a very, very concerted effort to divide people and, you know, create another -- the other. And the speaker used to have -- you know, you just mentioned a while ago people in on Friday afternoon make them -- both parties -- to discuss something is going on or just like -- but the -- he literally destroyed the fabric of what any sociologist or psychologist would say would be to help people understand each other. You know, if families -- they had picnics together and whatnot he literally destroyed it.

JEFFREY

11:54:07
And I, as I say, I haven't heard much of that as a basis for this lack of comedy that we're experiencing. So I think that Thomas Mann and Norm Orenstein have it right that there is a definite proportion of blame to be put, maybe not necessarily on republicans, but, at least, New Gingrich.

PAGE

11:54:33
Well, let me ask our panel what you think about that, Ross Baker. You've been watching things in Washington for a long time. To what degree does New Gingrich and his tactics with that '94 class contribute to, kind of, the current situation we have here.

BAKER

11:54:46
Well, you know, there's a very vigorous debate going on among congressional scholars about the effect of the class of '94 which, of course, resulted in a number of house members coming over to the senate who, in a sense, had become habituated to the disputatious nature of house of representatives and brought that kind of approach to the United States Senate. I personally, you know, deplore the, kind of, Frank Luntz approach, which, I think, your caller was referring to and basically schooling republicans in how to be nasty.

BAKER

11:55:24
I think that politicians quite naturally have the ability to be nasty when they need to be without coaching. But I think that certainly there's a phenomena in which people come over from the house with house habits. And I think to a very great extent have had an influence on the tenor of debate in the United States Senate.

PAGE

11:55:44
Michael Quinn, yeah, you noted that the filibuster doesn't appear in the Constitution. But it's not an American invention, is that right? It's got some very much longer history than that?

QUINN

11:55:56
Well, you -- it was actually English law back in the 17th Century that came up with the previous question rule. And that really permitted a member of a legislative body to call for the question, which invoked a vote on whether to end debate. So clearly I surmise that that meant that even going back centuries that how a legislative body sets its rules and works together was an issue and that you were seeing things equivalent to the filibuster.

PAGE

11:56:25
Richard Arenberg?

ARENBERG

11:56:27
Yeah -- no, I agree with that.

PAGE

11:56:29
All right, well, I want to thank our panel for being with us. Richard Arenberg, co-author of "Defending the Filibuster: The Soul of the Senate." Also with me here in the studio Michael Quinn, president and CEO of the American Revolution Center. And we've been joined by phone from Maine by Ross Baker a political scientist at Rutgers University. Thank you all for being with us. I'm Susan Page of USA Today sitting in for Diane Rehm. Thanks for listening.

ANNOUNCER

11:56:56
"The Diane Rehm Show" is produced by Sandra Pinkard, Nancy Robertson, Denise Couture, Monique Nazareth, Nikki Jecks, Susan Nabors and Lisa Dunn. And the engineer is Tobey Schreiner. Natalie Yuravlivker answers the phones. Visit drshow.org for audio archives, transcripts, podcasts and CD sales. Call 202-885-1200 for more information. Our email address is drshow@wamu.org and we're on Facebook and Twitter. This program comes to you from American University in Washington. This is NPR.
Transcripts of WAMU programs are available for personal use. Transcripts are provided "As Is" without warranties of any kind, either express or implied. WAMU does not warrant that the transcript is error-free. For all WAMU programs, the broadcast audio should be considered the authoritative version. Transcripts are owned by WAMU 88.5 FM American University Radio and are protected by laws in both the United States and international law. You may not sell or modify transcripts or reproduce, display, distribute, or otherwise use the transcript, in whole or in part, in any way for any public or commercial purpose without the express written permission of WAMU. All requests for uses beyond personal and noncommercial use should be referred to (202) 885-1200.

Our address has changed!

The Diane Rehm Show is produced by member-supported WAMU 88.5 in Washington DC.