Chairman Schumer, Ranking Member Bennett, members of the committee. I am pleased and honored to be invited to testify today on the filibuster today and its broader consequences for the Senate, other institutions, and the fabric of governance in America.

Let me note first that I am not among those who want to abolish Rule XXII or believe that procedures that protect minority viewpoints in the Senate are per se wrongheaded. I certainly join with scholars who have shown that unlimited debate in the Senate was in many ways a historical accident, not an objective of the Framers. The rules that followed the removal of the previous question motion, including those in place today, were neither preordained by the Framers of our Constitution, nor are they written in stone.

But I do believe that the Framers wanted the Senate to be a body quite distinct from the House of Representatives, and were deeply concerned about the potential tyranny of a majority. So a body built on a greater role for individuals, relying significantly on unanimous consent, and with the capacity for a minority of representatives with intense views about an issue of great national concern to retard action and force greater deliberation in the face of majority sentiment, fits that vision.

However, in too many ways, that vision of the Framers is being distorted today, at a substantial cost to the fabric of comity, the process of deliberative democracy and the vital business of governance in the country. This is true of the use of the filibuster as a pure tactic of delay and obstruction and not as a way for a minority to express its intense feelings about an important issue, and of the use of the filibuster's first cousin, the hold.

The sharp increase in cloture motions reflects the routinization of the filibuster, its use not as a tool of last resort for a minority that feels intensely about a major issue but as a weapon to delay and obstruct on nearly all matters, including routine and widely supported ones. It is fair to say that this has never happened before in the history of the Senate.

Where holds used to be employed sparingly, and served mainly to delay for a short time, days or weeks, a vote on a bill or nomination to enable a senator to be present for the debate, or to muster the best arguments to use on the floor, holds now are frequently the equivalent of death sentences or long periods of torture for nominees. Where holds on nominations once reflected concerns of senators about the nominees, now they more frequently are hostage-taking devices.

The upshot has been that many key posts in government go unfilled for months, leaving headless key agencies and offices that need leadership. To be sure, leaders can transcend the holds by bringing up the nominations and overcoming the lack of unanimous consent. But that moves the nominations back into the time-consuming process of Rule XXII and other Senate procedures that mean days and weeks of precious floor time that simply can’t be spared.

There is no panacea here. The problem is less the rules themselves and more the current culture. But the rules do play a part, and there are modest but important changes that deserve broad bipartisan support from those who want to see an appropriate balance in the Senate between minority concerns and majority governance, and want to see the Senate, and the broader government, functioning in the best interest of the country. I would be pleased to discuss some ideas for change if and as the committee desires.

View the full text of the testimony as an Adobe Acrobat PDF.

Norman J. Ornstein is a resident scholar at AEI.