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Common Cause, a Washington-based watchdog organization, is asking a federal court to overturn the Senate filibuster, which Republicans have used more since Democrats captured the chamber in 2007.
The group, in a lawsuit filed yesterday in U.S. District Court in Washington, cited the Senate’s inability to muster 60 votes to clear legislation allowing children of undocumented immigrants to become legal U.S. residents if they go to college or join the U.S. armed forces, and to pass legislation requiring nonprofit groups that run political ads to disclose their donors. Both bills passed the House and received a majority of votes in the Senate.
“While the Senate can set its own rules, they can’t be unconstitutional,” said Common Cause President Bob Edgar, a former Democratic U.S. representative from Pennsylvania. “This is an unconstitutional provision. A minority of senators representing a minority of the population of the nation can in fact rule with the current system.”
Requiring a supermajority of 60 votes on legislation rather than 51 votes has become more common.
“With Republicans willing to use every obstructionist tactic in the book, even on bills they support, it’s a wonder the Senate gets anything done at all,” the chamber’s majority leader, Nevada Democrat Harry Reid, said on the floor yesterday.
Senator Richard Durbin of Illinois, the No. 2 Democratic leader, said today that both parties should come to a broader, informal agreement about how to proceed in order to stop the constant threats of obstruction.
“The filibuster is virtually shutting down the Senate,” Durbin said on the Senate floor.
He suggested giving Republicans more chances to offer amendments, as long as they relate to the bills under debate. Senators debating legislation to renew federal funding for transportation defeated a Republican proposal to allow employers to exclude birth control and other health services from health plans provided to their workers if they said they conflicted with their moral or religious beliefs.
Senate Republican Leader Mitch McConnell of Kentucky said the filibuster isn’t being overused by the minority. He said the problem is Democrats aren’t seeking Republican ideas before moving legislation to the floor and are blocking the minority’s ability to offer amendments.
“Rather than work with us on bipartisan solutions that reflect the concerns and input of our constituents and that therefore have a good chance of passing, Democrats blame the other side for obstruction, not only avoiding their own responsibilities as the majority party but handing the president a useful election-year theme,” McConnell said on the Senate floor.
Since the Democrats gained control of the Senate in 2007, the number of motions to end debate, known as cloture, has more than doubled to 276 in 2007-10 from 130 in 2003-06, when Republicans were in the majority, according to the Senate Historical Office. In the current Congress, 84 motions have been filed to date.
“It reflects the breakdown of any sense of collaboration between the Democrats and Republicans,” said Tobe Berkovitz, a professor of communication at Boston University. “Whichever party is out of power wields the filibuster like a mace. Whichever party is in power bemoans the degradation of Senate decorum due to the filibuster. This has made the world’s foremost deliberative body increasingly more dysfunctional.”
The increase in the use of the filibuster can be traced to the 103rd Congress in 1993-94, when Democrat Bill Clinton was president and the Senate Republican minority was led by Bob Dole of Kansas.
During that period, 80 motions for cloture were filed, more than ever before and a one-third increase from the previous two years. The mark was toppled with 82 cloture motions in the next two-year period after Republicans took control of both houses. That remained the record until the 110th Congress in 2007-08.
“Though it was never the debate-enhancing instrument that its defenders claim -- the most memorable filibusters appear in ‘Mr. Smith Goes to Washington’ screenplays and West Wing scripts, not on the Senate floor -- it was rightly considered a principled last resort,” said Rogan Kersh, associate dean at New York University’s Wagner School. “Now it is a routine first-strike option, effectively requiring a 60-vote supermajority for virtually any meaningful Senate action.”
Common Cause’s Edgar said the Constitution requires a two- thirds vote for specific actions such as overriding a presidential veto and ratifying treaties, not for passing bills.
“The Founding Fathers intended the House would vote by majority, the Senate would vote by majority and they’d go to a conference committee,” Edgar said. “If we want supermajority votes on other issues, have the Senate and House add them to the Constitution.”
Talk of changing the rules to limit filibusters so far hasn’t prompted either party to do so when controlling the Senate.
“All Senate rules exist because a majority believes that they are better off with the rules than without them,” said David Primo, a professor of political science at the University of Rochester in New York. “The majority party always complains about filibuster abuses, but they never get rid of it because they want the same protections when they are in the minority.”
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