On June 14, Iowa Senator Tom Harkin delivered the Brennan Center for Justice’s third annual Living Constitution Lecture. A long time activist for filibuster reform, Harkin discussed his proposal to address a problem that he says has left Congress unable to function effectively.

[Watch Senator Harkin's lecture at the Brennan Center's Web site.]

The filibuster, initiated in the U.S. Senate ostensibly for protecting the minority party and allowing for debate of potential bills, has become a tactic used by senators to delay Senate voting, said Harkin. Under current Senate rules, a motion for cloture—a call to end floor debate—requires 60 votes. The result is that even when 51 senators are ready to approve a bill, they can only end a filibuster if they have a "super-majority" of 60 votes. The abuse of these technicalities, Harkin says, has led to a spike in the use of the filibuster: an average of one bill was filibustered each congressional term in the 1950s; in the 2007-2008 term cloture votes were called 139 times.

The result, said Harkin, is that the Senate is unable to operate effectively. “There are about 300 bills now that have been passed by the House that are just sitting at the doorstep of the Senate, that we can't take up,” Harkin said. The delays have especially affected President Barrack Obama’s administrative and judicial nominations: according to Harkin, over 100 Obama nominees are awaiting confirmation. At the same juncture in President George W. Bush’s first term, only eight nominees remained unconfirmed.

Under Harkin’s proposal, filibusters would be curbed by constraining the time allowed for floor debate. In the example given by Harkin, a cloture vote would still initially require 60 votes. Then, after allowing for two more days of debate, cloture would require 57 votes. After another two days, just 54 would be needed, and eventually 51. “A determined minority could slow down any bill for as much as eight days,” said Harkin. “Senators would have ample time to make their arguments and attempt to persuade the public and the majority of their colleagues. I think this protects the rights of the minority to full and vigorous debate and deliberation, maintaining the very best features of the U.S. Senate.”

The Living Constitution Lecture is part of the Brennan Center’s Living Constitution Project, which was initiated to spark debate and shape conversation amongst thinkers and policymakers and promote a progressive interpretation of the Constitution. Previous lecturers have included Janet Napolitano, then governor of Arizona, who discussed money and politics in 2008, and Senator Sheldon Whitehouse, who spoke about living up to the Constitution’s ideas of liberty and justice in 2009.

Posted June 21, 2010