Education

Harkin Filibuster Reform Proposal

September 28, 2021 /

Former Iowa Senator Tom Harkin has been pushing for filibuster reform for more than 20 years. During his 30 years of public service, he experienced the Senate from the perspective of both majority and minority control. Harkin first introduced filibuster reform in 1995, when his party was in the minority — defying the conventional support of the filibuster by minority leadership. This article reviews his proposed reform and then digs a little deeper into the reasons for his proposal.

Harkin’s proposal 

This proposal would amend the Standing Rules of the Senate to permit a decreasing majority of senators to invoke cloture (end filibuster and move legislation forward toward a vote) on a given matter. 

  • 1st Cloture Vote: 60 votes needed to end debate. (This is as the rule currently stands, and legislation can’t come up for debate or vote until 60 senators invoke cloture.) If the motion does not get sixty votes, a senator can file another cloture motion and two days later have another vote.
  • 2nd Cloture Vote: 57 votes needed to end debate. If cloture is not obtained, a senator can file another cloture motion and wait two more days.
  • 3rd Cloture Vote: 54 votes needed to end debate. If cloture is still not obtained, a senator could file one more cloture motion and wait two more days.
  • Final Cloture Vote: 51 votes would be needed to move to discuss and vote on the merits of the bill. 

The rationale behind reforming the filibuster

Why has Harkin advocated for filibuster reform, even during times when the existing rule would have helped his party? Harkin has worried about an “arms race scenario,” where, as power passes back and forth between parties, each successive Congress “ratchet[s] up the level of obstructionism to the point where sixty votes have become a de facto requirement to even bring up a bill for consideration.” This indeed seems to be the case: From 1800-1899, the filibuster was used only 23 times. From 1917 — when the Senate first adopted cloture rules for ending debate — until 1969, there was an average of less than one filibuster a year. During the 2019-2020 Congressional term, in contrast, there were a record-breaking 328 filibusters. This was under the Democratic minority, though counts under the Republican minority have also skyrocketed. 

The result is minority rule. And given that the filibuster is not in the Constitution (it was introduced as a rule in 1806 and not even used until 1837), we should ask whether minority rule was the Constitutional intent of the Founding Fathers or is even a useful modification today.

The answer to the first question resoundingly appears to be no, particularly in light of the supermajority that had crippled the Articles of Confederation. Alexander Hamilton, describing the underlying principle animating the Constitution, wrote that “the fundamental maxim of republican government . . . requires that the sense of the majority should prevail.” The Framers set up only five circumstances where a supermajority is required: treaty ratification, veto override, votes of impeachment, passage of a Constitutional amendment, and the expulsion of a member. James Madison rejected a requirement of supermajority rule to pass legislation and said “[i]t would be no longer the majority that would rule: the power would be transferred to the minority.”

Is the filibuster a useful modification today? In many ways, the filibuster has crippled the Senate and lessened its ability to function as a coequal branch of government. Advocates argue that it gives voice to the minority and makes the legislative process more deliberative. Fortunately,  Harkin’s reform acknowledges the need for deliberation, as it slows down the legislative process without allowing it to grind to a halt. According to Harkin, his proposed process “would actually enhance the filibuster as a means of slowing down proposed legislation forcing the majority and minority to negotiate and reach a compromise.” Currently, the filibuster gives the minority complete power to block legislation, providing no incentive for the minority to compromise. Under the system proposed by Harkin, knowing legislation will be subject to majority vote, the minority is incentivized to “come to the table and negotiate seriously.”

Those opposed to the filibuster warn of a “tyranny of the minority,” stopping all discussion of bills that do not have three-fifths support from the outset. As one scholar wrote, “In its current form, the filibuster is unconstitutional because it disrupts the Senate’s legislative process as outlined in the Constitution and has feeble historical support.” She continued: “[T]he filibusters’ debate-promoting potential is inextricable from, and ultimately overshadowed by, its obstructionist implementation.” Those in favor of it argue it fosters debate and deliberation and helps ensure the representation of minority views. In his book “A Good Fight,” Harry Reid argued that “A filibuster is the minority’s way of not allowing the majority to shut off debate, and without robust debate, the Senate is crippled.” (Reid later changed his views.) 

But we must ask ourselves if Harkin’s “arms race scenario,” has come to pass. If so, is this what our Founding Fathers intended? Is it what we want of our legislative body and one of the coequal branches of government? What do you think is necessary for our Senate to again become a body of debate, deliberation, compromise, law making, and action? Do the costs of the filibuster outweigh the benefits? Or should we retain it?  

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