Forgive us to for sounding nostalgic, but we love the 1939 film “Mr. Smith Goes to Washington.”
The movie, starring James Stewart and Jean Arthur, is like a civics lesson rolled into a dramatic film that highlights the best and worst of our great American system of governance.
At its dramatic peak, the film features an exhausted Stewart — a literal Boy Scout troop leader appointed to the U.S. Senate — beleaguered by the corruption and politics of the day. In a final valiant stand for righteousness and good governance, he invokes a little-known rule of the Senate called the filibuster, and talks for 25 hours nonstop until he collapses in exhaustion.
Spoiler alert: His strategy doesn’t work. His filibuster fails.
This is a far cry from the filibuster of the modern American Senate.
Under today’s version of the filibuster, Mr. Smith wouldn’t even need to go to Washington, let alone stand and speak for 25 hours. He could have one of his scouts send a tweet on his behalf, saying he is filibustering, and the bill would never be scheduled for a vote. His filibuster would succeed. Film over, roll credits.
This is neither the will of the Founders nor an effective way to run a government. The filibuster must be reformed.
The filibuster is a tool used in the Senate to delay the ability of the majority to end debate and vote on a bill until the minority has said everything they want to say, or a 60-person supermajority votes to end discussion. Importantly, it’s supposed to require that senators go on the record with why they oppose something — a record that their constituents deserve to see.
It is not a part of the Constitution and did not occur in the Senate for the first time until the mid-1830s, almost 50 years after the drafting of the Constitution.
Even then, senators could not hold the floor and delay a vote forever. They could only delay it as long as they were able to stand and continue speaking. This meant that the vast majority of filibustered bills passed with simple majority support within a day or two.
It wasn’t until less than 50 years ago, in 1974 and with a more collegial atmosphere in the Senate, that the current filibuster rule came into effect.
The modern rule allows a single senator to simply express the intent to filibuster in order to successfully block a vote and kill a bill. No need to stand and talk. No need to do anything. The filibuster itself is invisible because it doesn’t physically happen.
The result is that what was once a rarely used shield that could delay the passage of a bill for a few days or maybe even a few weeks, has become an often used sword allowing a single senator to kill any bill that lacks 60 votes. This effectively eliminates majority rule in the Senate because a supermajority is required to get anything done. No wonder Americans lack faith in the Senate’s ability to do the business of the people.
This invisible process kills more than 250 bills per year that we know about. And in the past 15 years, almost no bills other than the national budget, which is not subject to the filibuster, have successfully passed both houses of Congress.
This cannot continue.
The Founders put the Legislature in Article 1 of the Constitution because it is supposed to be the most powerful and representative branch of government. Legislators are supposed to make laws for the courts to interpret and the executive to enforce, not sit around collecting taxpayer-funded paychecks and pensions while passing their responsibilities to the other branches. Yet the filibuster prevents them from governing successfully.
And the stakes are getting higher.
A recent decision by the Supreme Court limits the executive branch’s authority to regulate “major questions” without specific congressional authority. But in doing so, it ignores the fact that the more “major” a question or issue is, the less likely that the highly polarized Senate will be able to overcome the filibuster and pass legislation.
If the Senate can’t overcome the filibuster and legislate, it won’t matter how big, important or “major” an issue might be. It won’t matter how dire the consequences of inaction. The United States will be stuck, frozen, stagnant.
Proponents of the filibuster have noted important reasons for the rule to remain in place, including the risk of the tyranny of the majority and the fact that the Founders intended it to be difficult to create new law.
We agree that passing bills and creating new laws should be difficult, but so should killing bills and overriding the will of the duly elected majority.
Giving any one senator the ability to overrule the majority of both the Senate and Congress and stop a bill in its tracks is asking for abuse. It’s asking for a useless do-nothing legislative branch. It’s asking for the worst form of corrupt, partisan politics to prevail.
Plus, the structure of the Senate — two senators per state, regardless of population — already provides protection against the tyranny of the majority.
Under current filibuster rules, as much as 93% of all Americans could want or agree to something, and a single senator representing less than .1% of Americans (yes, less than 1/10th of one percent, or about as many people as live in Reno) could block it. We are living, in other words, in the tyranny of the minority. This is not what the Founders imagined.
That’s why we’re advocating to bring Mr. Smith back to Washington and return to the talking filibuster.
Rather than the current invisible filibuster that gives a single senator unlimited power to kill bills silently and for good, killing a bill with a talking filibuster requires a coalition of senators to publicly hold the floor for days or even weeks on end.
Seeing the conviction of those filibustering and hearing their words, the public will gain new information they can use to pressure their elected officials. And it creates a public record of what our representatives believe on the issues, which allows voters to hold them responsible for their words.
If, in the end, the minority cannot muster the support to continue holding the floor, then, like Mr. Smith, they will lose. The democratically elected majority can get back to governing. The American people could be represented effectively — something the current Senate rules utterly deny.
This solution should appeal to Democrats and Republicans alike. Democrats, who have held the majority in the Senate for 10 of the past 16 years, would be less hamstrung by the filibuster. Republicans would see governance taken out of the hands of regulatory agencies and returned to elected leaders. And voters would have a more robust speaking and voting record to take to the ballot box, empowering us to better hold our elected leaders accountable.
The Senate should get back to the business of governing by bringing back the talking filibuster now.