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Is the filibuster a mainstay of the Senate or an antidemocratic anachronism? Has it been overused in the 111th Congress? Should the reconciliation process--which does not allow the filibuster--be used to pass health care reform? If so, under which conditions and with which limitations? These and other questions will be
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discussed by distinguished panelists including AEI resident scholar Norman J. Ornstein, whose knowledge of congressional procedure is unmatched; Sarah A. Binder, coauthor of the first full-fledged examination of the filibuster in fifty years, Politics or Principle? Filibustering in the United States Senate (Brookings Institution Press); former Senate Parliamentarian Robert Dove; and former White House congressional liaison Gary Andres, who is an expert on congressional mechanics. AEI’s John C. Fortier will moderate the session.
| 8:00 a.m. | Registration and Breakfast | |
| 8:30 | Introduction: | Karlyn Bowman, AEI |
| Panelists: | Gary Andres, Dutko Group | |
| Sarah Binder, Brookings Institution | ||
| Robert Dove, George Washington University | ||
| Norman J. Ornstein, AEI | ||
| Moderator: | John C. Fortier, AEI | |
| 10:00 | Adjournment |
American Enterprise Institute
WASHINGTON, MARCH 12, 2010--Experts on Congress convened for the third session of Politics Watch, an expansion of the Election Watch series that will resume later in the year, to examine the past, present, and future of the filibuster. AEI's John C. Fortier spoke first, describing the filibuster within the context of the Senate’s tradition of infinite debate. The Senate is much more individualistic than the majoritarian House, so individual senators have significant power to affect debate. It is within that context, Fortier commented, that proponents and opponents of the filibuster argue.
AEI's Norman J. Ornstein followed Fortier, stating that the filibuster is a hot topic again partly because of the traditional hypocrisy of political parties whenever the minority and majority trade places. The reason to focus on the filibuster, Ornstein argued, is not the particular issues surrounding the rule itself, but the larger problems with the political culture in the Senate that have led to increased use of the filibuster. The filibuster used to occur infrequently and required action by the minority party. Over the past twenty years, however, use of the filibuster has increased. This is partly due to a greater sense of individualism in the Senate. The hold, an informal method of filibustering, has been increasingly used to block nominations. Now the filibuster is routinely used as a means of obstruction to tie up the Senate for days, which can seriously damage the fabric of government. Correcting this problem, Ornstein argued, requires not moving the Senate toward majority rule, but making the minority actually act on its threat to filibuster.
Robert Dove, former Senate parliamentarian, argued that the problem in the Senate currently lies with the senators. Under Senators Lyndon Johnson and Robert Byrd, the Senate worked well because the leaders knew how to play the game. Dove argued that any change to the rules of the Senate would be a disaster because it is supposed to be difficult for the Senate to act. In the House, the leadership rules. In the Senate, on the other hand, a consensus is needed to act. Leaders who know how to play the game can get the Senate working. In response to Ornstein's comment about holds, Dove explained that a hold is actually a letter sent to the leader. These letters can convey valuable information to the leadership and underscore the power of each senator. Dove concluded by underscoring the consensus-building nature of the filibuster. In the House, there is no relation between the majority and the minority party. In the Senate, in contrast, consensus is necessary to the institution.
Sarah Binder, coauthor of a book on the filibuster, elaborated on the many myths about the filibuster. The first myth is that there is some sort of framers' intent surrounding the filibuster. In actuality, the framers had no love for supermajority rule. The second myth is that the filibuster was once reserved for the most important issues of the day. This was not true in the nineteenth century, as the filibuster was used for routine matters. It was used for important matters beginning in the civil rights era. The third myth is that the filibuster moderates legislation. Binder argued that there is mixed evidence to support this claim because there is no link between getting the sixtieth vote and moderation, especially for nominations. The last myth is that the filibuster rule is impervious to change. This cannot be measured because every attempted change to the filibuster has been filibustered. Binder also pointed out the situational nature of views on the filibuster, as there are few procedural purists in the Senate.
Gary Andres, an expert on congressional mechanics, stated that he approaches the filibuster from an executive branch perspective. Generally, the filibuster comes up in the context of united party government, and views are largely situational. Proponents of reform to the rules generally value efficiency, but efficiency is not the goal of the Senate. There have been changes to the rules of the Senate over time, and further changes will occur. However, reforms have lately tried to make the Senate more like the House. Andres stated he does not think this is a positive development. The framers wanted the House and Senate to be different, and the filibuster is part of that differentiation. Andres concluded by stating that there are many hidden values to the filibuster, such as policy stability.
On the question of the use of reconciliation in the current health care debate, Ornstein stated that reconciliation has been used for routine matters before. However, it is not a tool that you would use to pass major legislation. Dove also commented on reconciliation, saying that it was supposed to reconcile spring and fall budget resolutions--which does not happen anymore. It was originally a small tool that since has grown and expanded. The result of reconciliation, in his view, is the destruction of the ability to debate and amend, which are fundamental to the workings of the Senate.
--ANDREW RUGG
Gary Andres is the vice chairman of public policy and research at Dutko Worldwide. His public opinion research and analysis is used by Hill staffers, members of Congress, the administration, and private entities on a regular basis. His extensive writing career includes serving as a weekly columnist for the Weekly Standard Online and regularly contributing to publications like the National Review, Real Clear Politics, and Roll Call. He also writes a monthly column on presidential/congressional relations for Politico. He has served as vice president for Washington research at Prudential Securities, executive director of federal relations for Southwestern Bell Corp., and as deputy assistant for legislative affairs to President George H.W. Bush. Mr. Andres is also a research fellow at the American University Center for Congressional and Presidential Studies in Washington, D.C.
Sarah Binder is a senior fellow in Governance Studies at the Brookings Institution and professor of political science at George Washington University, where she specializes in Congress and legislative politics. She is the coauthor, with Forrest Maltzman, of Advice and Dissent: The Struggle to Shape the Federal Judiciary (Brookings, 2009), author of Stalemate: Causes and Consequences of Legislative Gridlock (Brookings, 2003), Minority Rights, Majority Rule: Partisanship and the Development of Congress (Cambridge University Press, 1997), and coauthor, with Steven S. Smith, of Politics or Principle? Filibustering in the United States Senate (Brookings, 1997). She is also coeditor of The Legislative Branch (Oxford University Press, 2005) and The Oxford Handbook of Political Institutions (2006). Her other work on congressional politics has appeared in the American Political Science Review, American Journal of Political Science, and elsewhere.
Karlyn Bowman is a senior fellow at AEI. She compiles and analyzes American public opinion using available polling data on a variety of subjects, including the economy, taxes, the state of workers in America, the environment and global warming, attitudes about homosexuality and gay marriage, the North American Free Trade Agreement and free trade, the war in Iraq, and women’s attitudes. In addition, Ms. Bowman has studied and spoken about the evolution of American politics because of key demographic and geographic changes. She has often lectured on the role of think tanks in the United States, has written the definitive history of AEI, and writes a weekly column for Forbes.com.
Robert B. Dove, parliamentarian emeritus, served for thirty-six years as the United States Senate’s “referee.” Since his retirement in May 2001, he has served as counsel to Washington’s largest law firm, Patton Boggs, has been named Congressional Chair at George Washington University’s Graduate School of Political Management, and joined the faculty of the Georgetown University Law Center as a senior policy fellow and adjunct professor. Mr. Dove is the author of articles and chapters on congressional procedure including sections of the Encyclopedia of Congress, and “Enactment of a Law: Procedural Steps in the Legislative Process.” He has acted as parliamentary consultant to numerous foreign government entities such as the Russian Duma, the Yemen Parliament, the Kuwait Parliament, the Bulgarian Legislature, and the Polish Legislature. He has served as the parliamentarian for the Republican Platform Committee at several Republican National Conventions.
John C. Fortier is a research fellow at AEI. He studies American politics, the presidency, continuity of government, elections, the Electoral College, election reform, and presidential succession and disability. He is the senior counselor to the AEI-Brookings Election Reform Project, executive director of the Continuity of Government Commission, and a fortnightly columnist for Politico. Mr. Fortier’s books include Absentee and Early Voting: Trends, Promises, and Perils (AEI Press, 2006); After the People Vote: A Guide to the Electoral College (third edition, AEI Press, 2004); and Second-Term Blues: How George W. Bush Has Governed (Brookings Institution Press, 2007). He is also a frequent radio and television commentator on the presidency, Congress, and elections.
Norman J. Ornstein is a long-time observer of Congress and politics. He writes a weekly column for Roll Call and is an election analyst for CBS News. He serves as codirector of the AEI-Brookings Election Reform Project and participates in AEI’s Election Watch series. He also serves as a senior counselor to the Continuity of Government Commission. Mr. Ornstein led a working group of scholars and practitioners that helped shape the law known as McCain-Feingold, which reformed the campaign financing system. He was elected as a fellow of the American Academy of Arts and Sciences in 2004. His many books include The Permanent Campaign and Its Future (AEI Press, 2000); the coauthored The Broken Branch: How Congress Is Failing America and How to Get It Back on Track (Oxford University Press, 2006); and, most recently, Vital Statistics on Congress, 2008 (Brookings Institution Press, 2008), also coauthored.
