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What is a Filibuster and Why Should It Be Reformed?

What is a Filibuster and Why Should It Be Reformed?
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The news is currently dominated by the negotiations over the fiscal cliff, but another issue looms large for January. Senate Democrats appear to be coalescing around a plan to reform the filibuster, one that they could implement in January with a bare majority vote.

The proposal has drawn outrage from Senate Republicans, who have threatened to use parliamentary maneuvers to grind the Senate to a halt if Democrats go forward.

Filibusters play a significant role in creating gridlock in Washington, and yet other than a general awareness of Mr. Smith Goes to Washington, few people outside of parliamentary procedure geeks really understand what the filibuster is, or why Democrats would seek to reform it. Here’s a look at where the filibuster came from, how it’s currently used and how Democrats hope to fix it.

History of the Filibuster

Strictly speaking, a filibuster is a delaying tactic used to obstruct business in a parliamentary body. In a filibuster, a member or members speak non-stop on a measure, in an effort to keep the measure from coming up for a vote.

The practice dates back at least to the Roman Senate. Cato the Younger was known to speak for hours in opposition to some measures, speaking until nightfall — when the Senate was required to adjourn.

Filibusters can be used in any parliamentary body, but they’re especially tenacious in the U.S. Senate because of its rules on calling the previous question, parliamentary-speak for moving to a vote.

The Senate originally had rules allowing a majority to vote to end debate and move to a vote. Aaron Burr (yes, that Aaron Burr) argued against the rule, saying it was essentially redundant — it was rarely invoked, and obviously, any measure would ultimately move to a vote. The Senate agreed in 1806, eliminating the rule and setting the stage for filibusters.

Filibusters were used sporadically starting in 1837, and reached their first apex in 1917, when 12 anti-war senators managed to hold up legislation allowing U.S. merchant vessels to arm themselves. That year, the Senate adopted its rule for cloture, allowing the ending of debate. The rule required two-thirds of senators present to vote in favor of ending debate and moving to a vote.

This did not stop filibusters; indeed, the practice flourished in the middle of the 20th century. Southern senators used the tactic to slow progress on civil rights, starting in 1946, with a measure that would have created a federal watchdog to stop employment discrimination. Strom Thurmond personally filibustered the 1957 Civil Rights Act by speaking for more than 24 hours.

One serious problem caused by filibusters was that the act did not simply block the measure on the floor, but all Senate business. That meant that uncontroversial and necessary bills were stopped, as well as bills that a minority of senators were willing to fight. For this reason, the Senate reformed its filibuster rules in the 1970s. First, the Senate adopted “dual-tracking” of legislation, allowing Senate business to occur on non-controversial legislation while other measures were filibustered. The second change was to reduce the number of votes required to break a filibuster to 60 percent of all Senators.

These two rule changes were meant to reduce the power of filibusters, but they had some unintended consequences. First, because filibusters did not block all business, the rule change made the political cost of filibustering lower. No longer did a filibuster hold up Social Security payments and defense funding as well as whatever the filibustering senator opposed — now they could simply oppose a specific piece of legislation and still make sure popular votes were taken.

The second had to do with the requirement that sixty percent of all senators vote to block a filibuster. Previously, the onus was on filibustering senators to keep enough members on the floor at any given moment to stop a cloture vote. If sixty senators were on the floor, and forty voted for cloture, the Senate would move on to a vote. Now, the onus was on the majority to block a filibuster. One or two senators could talk for hours, and at least sixty senators would have to show up in order to end the filibuster.

Logistically, this made a filibuster easier to sustain and less politically damaging — which set the stage for today.

The Spike in Filibusters

Today, most filibusters never reach the point at which members are forced to speak forever. If the Senate is unable to pass a cloture motion, it’s clear that enough Senators are willing to oppose a measure to keep it from passing indefinitely, and because it’s much harder to break a filibuster than sustain one now, the majority usually simply shelves legislation that can’t get 60 votes.

There are some exceptions; bills that reduce the deficit, for example, can move forward on majority votes. This tactic has been used to pass the Bush Tax Cuts and the Affordable Care Act. Still, most Senate action, from the DREAM Act to eliminating Don’t Ask, Don’t Tell to judicial confirmations, has to get 60 senators willing to support at least a vote on the measures.

This has led to an explosion in the number of filibusters, especially over the past four years, when Senate Republicans have been united in trying to thwart President Barack Obama’s agenda. In recent years, hundreds of measures have faced cloture votes, most of them failing to get the required 60 votes. The result has been predictable: the Senate has become an abattoir, killing legislation left and right, barely able to function at all. As Stephen Colbert has joked, it’s gotten so bad that Senate Republicans are dropping by Harry Reid’s house to filibuster passing the mashed potatoes.

There have been efforts to change the filibuster system in the last decade, but they’ve been halting, and ultimately were abandoned. Republicans at one point threatened to rule the filibuster out of order on judicial nominations — a ruling that could be upheld by a bare majority of senators — but relented after a bipartisan group of Senators reached a deal to allow some nominations to go forward.

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Image Credit: Boston Public Library

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44 comments

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4:58AM PST on Dec 11, 2012

The Democrats yelled about it when the Republicans wanted to do this.

6:21PM PST on Dec 4, 2012

Of course they'll do anything they can to stop reform of ANY thing.

The filibuster is from the days of civilization not rule by the oligarchy who seem to have no scruples or morals.

2:11PM PST on Dec 3, 2012

Recall all Republicans!

9:49AM PST on Dec 3, 2012

Members of the Senate are our EMPLOYEES. Should we continue paying them for refusing to do their job? Isn't this a perceived entitlement that, like their salaries, retirement/health insurance benefits, speaking fees, etc., should be on the economic chopping block?

1:39AM PST on Dec 3, 2012

Thanks!

1:38AM PST on Dec 3, 2012

Interesting, thanks!

1:27PM PST on Dec 2, 2012

@Susan A

Okay, I did misunderstand, as it seemed like you were saying the dems were intending to end the filibuster. Incidentally, you used the term nuclear option, which is not really accurate. The GOP threatened a nuclear option in 2005, which would have actually ended filibusters. This was dodged through a bi-partisan committee determining that filibusters would be limited to special, undefined circumstances, and so far as I recall this magic scenario never occurred so it essentially did end filibusters.

The telling detail that should be added to your table of congressional effectiveness is the percentage of bills, which are signed into law. Truman's "do nothing congress" produced about 22% of its bills, this year's 112th passed less than 3%.

9:02AM PST on Dec 2, 2012

Leonard T., not sure if you misunderstood my post or not since you directed yours to me, but I don't disagree with you in the least bit. I agree wholeheartedly. The reasons for my posts were three-fold. First, I wanted to give a little history of the filibuster; second, I wanted to show what pitiful congresses the 111th and the 112th have been by showing how they have passed no legislation and have used the filibuster to keep from doing so; and thirdly, the videos were posted to show certain of these congress critters for the treasonous bastards they actually are. The last video was just a bonus video to show the last few republican presidents, as well as the party, to be the scum they are. I am all for reforming the filibuster so as to ensure each bill receives the full attention and discussion it warrants. I don't believe one senator should have the right to just threaten a filibuster, thereby killing the legislation without any discussion or action whatsoever. I do not believe that was ever the intent of the filibuster. Filibustering simply went that way so as to not tie up the senate floor, thereby causing inaction on any other legislation. The problem is, at this point, that just wouldn't matter because the republicans are filibustering practically all legislation and so there is no action to hold up on any other legislation.

11:48PM PST on Dec 1, 2012

@ Susan A

No one is trying to end the filibuster. Despite all the hand wringing from the right, the only rules change that's sought, which I've heard about at any rate, is changing back to what was required before 1977, such that when one filibusters, he or she must actually hold the floor, talk until they're hoarse, piss in a bottle, that sort of thing. Like in 1957, Strom Thurmond spoke for 24 hours to try and block a civil rights law. He was a sorry ass excuse for a human being, but willing to stand for his sociopathy. The real anomaly is the pretend filibuster that's been allowed since the late '70s, in which a senator merely states that they are putting a hold on a piece of legislation, and nothing more is required of them. It's often done in secret so the public isn't even aware who is conducting the filibuster. That's what would change, and it would largely stop filibusters only because today's GOP are so craven, inarticulate and lacking in the courage of their faux convictions.

4:49PM PST on Dec 1, 2012

Jim, thanks for the link. Interesting article. Would love to move to Canada if I but could :(

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