Historians and Filibuster Reform: Follow-Up
On Tuesday, January 4th, one day before the start of the 112th session of Congress, Jim Grossman, Michael Kazin, and I visited the offices of Senators Udall, Harkin, and Boxer to present the petition signed by over 300 historians, political scientists, law professors, and other scholars urging reform of the procedural rules that allow a minority of senators to block legislation (aka the filibuster and its cousin, the anonymous hold).
Our timing was good and the meetings, productive. The three smart, well-informed aides to whom we spoke all said that the petition would carry significant weight with senators. Of course, they are paid to be polite, but their interest seemed genuine. As the C-Span addicts among you already know, Senator Harkin read the petition and the names of its signatories into the official record from the floor of the Senate the next day.
If you did not sign the petition or want to do more, it is not too late to act. As it turns out, January 5th was not the “one-day window-of-opportunity” for filibuster reform that pundits had supposed. Senators can still debate and change their procedural rules when they reconvene again after their two-week recess by, in effect, creating what one aide called the fiction of a “continuing” day.
Senators Udall and Merkley had already drafted a reform proposal, but by Tuesday they and other pro-reformers had concluded that they needed more time to produce a consensus and a set of proposals specifically crafted to sustain it. One aide informed us that backstage negotiations about filibuster reform are taking place largely through direct “member-to-member” discussions, unmediated by the aides—a sign of the issue’s importance. Such discussions were already underway during the lame-duck session and will continue during the recess.
When we asked what historians and other scholars could do, here is what they said. A continued public drumroll is important: senators should know that the public is dismayed about the current condition of the Senate and wants to see majority rule restored. One aide suggested that absent such expressions of public concern, the Senate leadership might opt for an informal agreement to behave better during the current session, but leave the rules themselves unchanged.
Each aide independently said that our most effective tool by far is the op-ed piece. If you are not ready to dash off an editorial, letters or e-mails to your own senators and to others are fine. If you feel strongly about reform, this is an excellent time to express your views.
Given our trade, the aides said it would be especially helpful to emphasize the historical dimensions of the filibuster and our current impasse. Senators should hear that the filibuster is not mandated by the Constitution on any theory of interpretation. Recent commentary in this forum and elsewhere has emphasized, among other things: the intent of the framers with respect to majorities and super-majorities; common law precedent holding that current legislatures may not make procedural rules that have the effect of limiting in perpetuity the powers of future legislatures; and the piecemeal, ad hoc history of the enactment of the rules relating to the filibuster. Recent history is as important as the early history. The aides all stressed that senators, especially new ones, needed to know that current Senate practices are not “ancient custom” and have in fact been subject to reform and repeated debate in the second half of the twentieth century. Senators are, in short, free to enact procedural reform and should do so.
The aides said we should focus on the following categories of senators. The leadership, which includes the majority leader and majority whip, Harry Reid and Richard Durbin, and their Republican counterparts, Mitch McConnell and John Kyl. Others also fall into this category, including Senator Chuck Schumer, the third ranking Democrat. Several veteran Democratic senators could also use a nudge. Some are attached to the filibuster in part because they have long enough memories to recall when it worked in their favor and was not so readily abused. The aides mentioned by name, Senators Patrick Leahy (say it isn’t so!), Carl Levin, and Max Baucus. (One aide referred to them, affectionately, I thought, as “old bulls.” But we should probably find another nickname as Senator Diane Feinstein is among them.)
You might also want to contact moderate Democrats who might be wavering, whether veterans or newcomers to the Senate.
A final note. I had never been inside a senator’s office before. The tireless Joyce Appleby arranged our appointments and put together more or less at the last minute our little delegation. We formed, then, an impromptu group and spoke as individual signers of the petition (not as representatives of our home institutions). That said, the very fact that we could get inside the door on such short notice was invigorating and an antidote in its small way to the dismal spectacle of a stalemated Senate.
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