Imprimis

How and Why the Senate Must Reform the Filibuster

Tom McClintock
U.S. House of Representatives


Tom McClintockTom McClintock has served as the U.S. Representative for California’s 4th congressional district since 2009. He received his B.A. from UCLA. He is a senior member of the House Natural Resources Committee, where he chairs the Subcommittee on Federal Lands, and serves on the House Budget Committee. Prior to his election to Congress, he served for 22 years in the California legislature and ran for governor in California’s recall election in 2003.



The following is adapted from a speech delivered on January 11, 2017, at Hillsdale College’s Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship in Washington, D.C., as part of the AWC Family Foundation Lecture Series.

The Senate prides itself as being the greatest deliberative body in the world. When Jefferson asked Washington why the Constitutional Convention created the Senate, Washington compared it to the hot tea Jefferson cooled in a saucer. “We pour legislation into the senatorial saucer to cool it.”

The Founders designed the two houses of Congress to have different perspectives and temperaments. The House, representing smaller constituencies and constantly up for re-election, would reflect the hot passions of popular will. This is a vital component of representative government, but more is required in making good decisions. The Founders knew, as Benjamin Franklin put it, that “Passion governs, and she never governs wisely.”  The Senate, with longer terms and generally larger constituencies, was designed to temper passions with reason, which requires deliberation. A lot of deliberation.

Central to ensuring this deliberation is the unfettered freedom of debate accorded in the Senate. While the House rations time parsimoniously, often to just a single hour of debate even on major legislation, the Senate insists on giving all its members the widest possible latitude to hold a question up to every light.

A popular aphorism in the House of Representatives is, “The other party is the opposition; the Senate is the enemy.”  As a member of the House myself, I find the Senate’s byzantine rules frustrating; but after all, frustrating House members is part of the Senate’s mission. Yes, the Senate is a pain, but where would we be without it?

On the other hand, deliberation is a means to an end, not an end in itself. It is a means to achieve wise and enlightened legislation with the consent of the people. And this is where the Senate is on the verge of dysfunction.

Over the last several congressional elections, and most conspicuously in the recent presidential election, the American people have sent a clear signal that they want a major change in public policy. It is the duty of Congress to respond. To do so, it needs to deliberate wisely and in good faith, with all sides participating and all voices heard. But then this deliberation must result in laws that accord with the people’s will.

Some in the new Congress have set a positive tone, but we have also heard reactionary elements vow to thwart the popular mandate. It is natural for the minority to use every available means to try to change the majority’s mind or temper its fervor, and our system offers it many ways to do so. But that’s different from obstruction, which is why these vows by some senators are as disturbing as they are credible.

They are credible because the modern Senate filibuster has become a tool for the minority to block any meaningful legislation from being enacted or even considered. Given its record of abuse in recent years—by both parties—the Senate needs to repair its rules regarding the filibuster if it is to have any hope of performing its constitutional duty.