The filibuster, the parliamentary technique in the US Senate to hold the floor, extend debate — often pointlessly, and delay or kill legislation unpopular with specific groups, has long been decried by progressives and conservatives alike. Yet both sides have enthusiastically employed it when advantageous, and recently used procedural trickery to limit it when convenient. Yet both sides point their finger at the other in righteous indignation when the other, while in the majority, threatens to eliminate it. Reportedly, outgoing Senate Majority Leader Mitch McConnell tried to make its continuation a condition for agreeing to an organizing resolution while negotiating with Senator Chuck Schumer, the in-coming Majority Leader.
Both political parties (or the three we may shortly have after the Republican debacle following its embrace of Donald Trump) decry the filibuster when they are in the majority, and then often enthusiastically deploy it when in the minority although the Republicans in recent times have been by far the technique’s most avid adherents.
Why the continuing embrace of such a widely panned parliamentary device? Because, as routinely destructive and disruptive as filibusters are, they still serve two closely related purposes. First, they ensure that the perspectives of the minority are heard and considered. And secondly, because of the first purpose a filibuster or the threat of a filibuster forces the parties to seek compromise and accommodation, something the late Harvard government Professor Arthur Maass called “partisan mutual adjustment.” Because of these conceptual merits the filibuster continues on despite its practical demerits. When one of the parties when in the majority threatens to eliminate the filibuster, the other when in the minority shouts that they will “rue the day.”
If the Senate filibuster is not going away despite its seeming unpopularity, and if it continues being deployed as an obstacle to legislative progress, then something has to be done about it, something that ensures that minority positions are considered while giving majorities the chance to govern and enact the policies that made them the majority in the first place. So, what should be done?
Before addressing a filibuster fix, it would first be useful to review what a filibuster actually is and how we arrived at the current condition where, as one authority has noted, “In today’s Senate it take sixty votes to agree what day of the week it is.”
As parliamentary procedures go, the filibuster is not one that was created with any profound intellectual consideration. In fact, it came into existence almost by accident when then-Vice President Aaron Burr (correct, the one who killed Alexander Hamilton in a duel), evidently unhappy with the early Senate’s leisurely pace and complex procedures, suggested it simplify its rules. One with which he took particular exception was a rule called “the previous question.”
The “previous question” rule is not what it seems, as it actually has nothing to do with any “previous question.” It is simply a parliamentary motion to end discussion and vote on an issue under consideration. Like basically all early Senate rules, a previous question motion could pass by a simple majority. In fact, except for those items that the Constitution stipulated required a super two-thirds majority, such as impeachment, expelling members, over-riding presidential vetoes, or ratifying treaties, everything else in the Senate only required a majority vote. But the Senate in 1806 adopted Burr’s proposal and eliminated the previous question motion, effectively (and perhaps unintentionally) leaving it with no mechanism to limit or end debate. Inadvertently, the filibuster was born.
But despite the possibility of filibusters, there was no mad rush to employ them. It was not until 1837 that the first filibuster occurred, followed in 1841 by another during the heated debate about chartering a national bank. The use of the filibuster did not come to a head until 1917 regarding a bill to arm merchant vessels advocated by President Woodrow Wilson in the months before the US entry into World War I. Wilson criticized the Senate and what he described as “a little group of willful men” who were frustrating the bill — and the president. In response, the Senate adopted Rule XXII, a “cloture motion” that could end debate on an issue with a two-thirds vote of the members.
The first use of cloture was in 1919 when invoked to end debate on the Versailles Treaty, which was defeated after debate was ended. Ironically, Wilson’s advocacy of a cloture mechanism led to the defeat of the treaty he had championed and intended as his signature accomplishment.
Even after the adoption of Rule XXII, filibusters remained quite rare even during the period of the civil rights movement in the 1950’s and 1960’s. The filibuster was somewhat modified in 1970 with the adoption of a rule that allowed Senate business to proceed on other matters after the intent of a filibuster had been stated, and was modified again in 1975 by lowering the threshold to invoke cloture from sixty-seven votes (two-thirds) to sixty, where it is today.
Still the threat of filibuster and calls for cloture did not significantly increase until the mid-1990’s, and increased again after the election of Barack Obama in 2008. Since then, as well-known congressional scholars Thomas Mann and Norman Ornstein have written, the filibuster has become a stealth weapon used not, “to highlight an important national issue but to delay and obstruct quietly on nearly all matters, including routine and widely supported ones.”
The good news here is that cloture motions, when filed, usually pass, and very often the legislation requiring cloture then passes overwhelmingly. This strongly suggests that filibusters, or the threat of one, are being over-used and abused, having become a device for extracting certain concessions or simply to “gum up” the legislative works. This has been particularly true regarding appointments to the judiciary and those positions in the executive branch requiring Senate confirmation. What was once a rarely used legislative gimmick has now become a routine legislative tactic. More distressingly, it has served more to provide a minority veto than to allow the airing of a minority opinion.
What could be done? There are, of course, many correctives that are possible as the rules of the Senate fill nearly 600 pages in describing forty-four rules (numbered with Roman numeral I — XLIV). But here are two rather simple fixes.
First, and arguably easiest, is to simply lower the number of Senators required to invoke cloture from sixty to (perhaps) fifty-five. This change would mimic the one adopted in 1975 when the cloture threshold was lowered from sixty-seven to sixty. Then, as now, there was nothing magic about the number selected — sixty. It was simply a recognition that to facilitate the serious consideration of necessary legislation a change needed to be made to minimize obstructive tactics. Obviously, by 2009, given the divisiveness seen in the country, the sixty vote threshold had reached the end of its useful purpose.
Second, and certainly more difficult, as Norm Ornstein has suggested turn cloture around and require there to be forty votes to continue debate rather than to end it. This would mean that those wanting to prevent voting on an issue would have to keep forty votes handy and quickly available any time a cloture resolution was introduced. As in the old days of the filibuster, this would likely require those supporting the filibuster (and hence opposing ending debate) to stay on the Hill or “sleep in the hallways” ready to rush to the Senate floor and defeat a cloture motion.
Although this seems to be a simple change, it carries with it a most practical burden, one that would likely discourage filibusters or holds on otherwise routine legislative actions. Certainly, few members would want to sleep outside the Senate chamber in order to obstruct a proposal that was either widely supported or otherwise non-controversial. However, should they feel the need for such a display or objection, because of a particular constituent or philosophical interest, they could certainly do so, although that might require a lengthy time commitment or long oration like the one depicted in the famous 1939 film, Mr. Smith Goes to Washington.
But the major change here is in the shift of burden. Presently, the majority has the burden of ending debate, allowing the minority to continue making its point long after the point has been made. This change puts the burden on the minority, where it actually should reside. With this change the minority clearly must bear the discomfort of any continuing obstruction.
But in some manner, the Senate simply has to clean up its act. The current obstructionism by a minority creates the impression of a dysfunctional organization. Moreover, the current sixty-vote threshold has unintentionally allowed the minority to frustrate the desires of the majority. The founders were respectful of the minority opinion. The Senate itself is the result of such respect. But they did not intend that a committed minority could frustrate the will of the elected majority.
Without question, one does want to give the minority opinion a chance to be expressed. After all, it might be persuasive and change others’ opinions. But more importantly, one does want there to be barriers discouraging wild changes in legislative direction following an election, one where majority and minority status reverses. And one does want to encourage the search for consensus and compromise. The filibuster meets these worthy aspirations.
It was once said that the Senate, the upper chamber, the one supposedly being the one more prone to debate and reasoned discussion, was “the saucer that cools the legislative tea.” It can and should be such a body. But cooling the legislative tea is quite distinct from chilling or freezing it. Such outcomes lead to frustration and cynicism, and we must correct structures and procedures that facilitate such sentiments.
