Goldsmith is a former law partner, adjunct law professor, Superior Court judge, San Diego city attorney, California state legislator and mayor of Poway. He lives in San Diego.
Democrats claim it is a relic that stands in the way of progress and is not required by the Constitution. Republicans claim Democratic efforts to eliminate it are a power grab that ignores long-standing custom.
Both sides are right.
The requirement of 60 votes in the 100-person U.S. Senate to cut off debate and vote on legislation is not a constitutional mandate.
The filibuster does not apply to all legislation. Budget reconciliation bills are ed on a simple majority vote, and they’ve been used in tricky ways by Republicans to tax cuts and Democrats to enact the Affordable Care Act.
The founders created a legislative process that includes checks and balances among the three branches of government to guard against unbridled majority rule and out-of-control interest groups exerting undue pressure on lawmakers.
Although checks and balances are pervasive in the constitutional process, the idea of a filibuster is nowhere to be found. The Constitution says nothing about the number of votes needed to cut off debate. It leaves to the House and Senate the power to make their own rules.
The right to filibuster is a simple rule that could be changed in minutes by a majority vote of the Senate.
Its roots are historical. Initially, senators were appointed by their states and were well-connected, wealthy aristocrats. They got along well, and Vice President Aaron Burr, who presided over the Senate in 1806, suggested a process to end debate (known as a cloture motion) was unnecessary. By the 1830s, however, the Senate began to experience filibusters that took the form of senators endlessly speaking on the floor to stop progress on legislation.
Eventually, rules were adopted to allow cloture motions. But to preserve a semblance of the Senate custom, a supermajority of senators would be needed to end debate. Today, the supermajority is set at 60.
Over the years, the filibuster has been widely used by both political parties when they were out of power to stop legislation they opposed. And both viewed it as an unnecessary obstacle to adopting their agendas when they were in power.
As with the current debate, those in power advocate ending the filibuster while those out of power seek to preserve it. The back-and-forth debate has gone on for many years.
Efforts to weaken the filibuster have been bipartisan. Democrats exempted Senate approval of presidential appointees from the filibuster, including lower court nominees, when they were in power. Republicans extended that exemption to approval of Supreme Court nominees when they were in power.
Today, with a 50/50 split in the Senate, Democrats claim they were given a mandate to enact their agenda. Since the vice president can break a tie, they argue, only the filibuster stands in their way of fulfilling that mandate.
Ignoring the partisanship, I agree that the filibuster can thwart voters’ will and is an unnecessary obstacle given our constitutional checks and balances.
It is contrary to basic parliamentary procedure.
A majority vote cloture motion is provided for in parliamentary books such as Robert’s Rules of Order. That is the process used in meetings of state legislative bodies, city councils, boards of supervisors and parent teacher associations. During informal meetings, it is normally raised by someone saying: “We’ve heard enough. Let’s vote.”
The filibuster should be eliminated, but not in a way that is simply a power grab as proposed by Democrats. After all, Democrats did not even win a majority in the Senate and are seeking elimination of the filibuster solely to enhance their political power.
Most importantly, although the filibuster is not among the constitutional checks and balances, it has been widely recognized by Americans as an additional check.
Astute voters have understood for generations that the U.S. Senate requires 60 votes to adopt categories of legislation. They have elected senators knowing party affiliation in the Senate is less important than the House of Representatives because of that rule.
To eliminate the filibuster at this point would impose a “bait and switch” on voters.
However, there is a solution that would eliminate the filibuster without succumbing to a power play or blindsiding voters. As with much of representative democracy, however, it would require patience to achieve fairness.
Since senators are elected to six-year , the Senate should by vote announce that the filibuster rule will change to majority vote in six years. In that way, all senators will have been elected by voters knowing the filibuster protection will be eliminated.
Under this plan, neither political party would be unilaterally seizing power. Nor would voters be blindsided by an abrupt change. It would be left to voters to consider the impact on their candidate choices.
If we want to end the filibuster, this is the right way to do it. A power grab is not.
