Nearly 100 years ago President Woodrow Wilson pegged the Senate filibuster for exactly what it was. Wilson asserted that the filibuster served only to enable "a little group of willful men, representing no opinion but their own," to debase the Senate and turn it into "the only legislative body in the world which cannot act when its majority is ready for action."
Who is to blame for the filibuster? The answer is: those who are the Senators. A glance in the mirror is all it takes to see the enemy of democracy, the obstructionists, those who would willingly disable the Constitution. The filibuster is a creature of the Senate; wholly its own creation; thriving only at the pleasure of those who sit in that chamber today. Nothing in the Constitution mentions the filibuster or for that matter any rule or regulation governing the proceedings of Congress. Those who are the Members make their own rules. The Constitution is clear on that. They may change them at any time. And the procedure allowed for that change is really quite simple.
If you are being told that decades of Senate tradition are difficult to overcome, you are being purposely misled.
Here is exactly what the Constitution says about proceedings in the Senate. Article I, Section 5: “Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.”
That’s it. Nothing more. Not a single word. Filibuster? Invented by Senators for Senators.
In March of 1975, the second appointed Vice-President of the United States, the never elected Nelson Rockefeller, made a courageous ruling from the Chair in his constitutionally mandated position as President of the Senate. Here is how the Constitution makes this designation in Article I, Section 3: “The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.”
Rockefeller ruled that each Senate – which is to say each meeting of this body following an election or every two years - is a separate body and is not bound by the rules of previous Senates. That means that each new Senate must either pass a complete set of procedural rules for itself or take affirmative action to subscribe to previous rules previously established. Further, Rockefeller ruled specifically that Senate Rule 22 – which is the filibuster rule – could be overruled, could be changed, could be altered or even eliminated altogether by a simple majority vote of those senators voting. He was the President of the Senate. Such was his perfectly constitutional ruling. Rockefeller’s dramatic declaration was indeed challenged, by senators from the right and from the left, by Republicans and by Democrats, by conservatives and liberals, by Southerners and those from other parts of the country as well. But when it came to a vote, the forces of reform – those who supported the Rockefeller ruling - won the day by a vote of 56-27.
However, the very same victorious senators then immediately turned around and agreed to negotiate with the defeated forces of the filibuster. Why? Why would the winner offer to settle? Losers settle. Winners celebrate, don't they? After all, they had already won the procedural battle. The President of the Senate was on their side. Game over. Who is to say why, but its true - they did. And so a modification to Rule 22 was passed reducing the number of votes necessary to stop a filibuster from two-thirds of all senators to three-fifths. In essence, after March 1975 it now took 60 senators to halt a filibuster instead of 67. And yet the Rockefeller ruling remained – and remains to this day – in place. A majority of senators may – at their pleasure – send the filibuster flying full force into the fires of Hell. The filibuster could be, as Chuck Berry might say: “Gone like a cool breeze.” All thanks to the legacy of Nelson Rockefeller.
That was 35 years ago. Now, in 2010, we see a federal government stymied by obstructionism in a Senate where using Rule 22 brings the entire Congressional system to a grinding halt. The Congress has been rendered impotent. Nothing the House passes matters because no bill can avoid Rule 22 when it reaches the Senate. And so, no legislation actually gets passed by the Congress as a whole and nothing at all gets sent to the President for signature. Also, the Executive branch cannot operate at full capacity because so many of its appointees require Senate approval and those appointments, like all other procedural matters, cannot reach the floor for a vote… because of Rule 22. Yes, that "little group of willful men."
It is time for the current Vice President of the United States, Joe Biden, to rise up from his decades of legislative slumber – himself a nearly lifelong Member of the Senate – and his more recent Executive depression and take the Chair in the United States Senate – which is his constitutional duty – and, in the spirit of Vice President Rockefeller, Biden must declare Rule 22 as void. Pitch it into the dust bin of history. The Vice President should stand for the Constitution. A procedural rule that eliminates the possibility of tie vote in the Senate must be unconstitutional in the first place. How could the Constitution entrust the breaking of a tie vote - “…unless they be equally divided.” - to the Vice President if no such vote total is allowed?
Mister Vice President, we have a crisis. Step up and be counted. Take the mantle of Rockefeller and the myth from Jimmy Stewart. Its time to be the man!