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.
What Changes are Democrats Proposing?
The changes that Senate Majority Leader Harry Reid, D-Nev., is considering boil down to two changes. The first would eliminate filibusters on the Motion to Proceed — essentially, a motion to bring a matter up for debate. Right now, members can actually filibuster not just a measure, but even taking up a measure.
The more substantial change would be to return to some variation on requiring a vote of senators present, rather than the whole senate, in order to proceed. That would force the minority to keep members on the floor in order to keep a filibuster going, rather than forcing the majority to try to break it.
These two changes would not eliminate the filibuster, but they would require members to actually filibuster an act of Congress, rather than the idea of debate itself. It would also put the onus on the minority to keep the filibuster going once started — making it easier to break, and harder to sustain indefinitely.
Why Not Just Eliminate the Whole Thing?
If the filibuster is such an important part of gridlock, it may seem like a no-brainer to get rid of it. Still, there are reasons for both parties to be concerned about rule changes that affect the rights of the minority.
Democrats have held the Senate only since 2007. Prior to that, Republicans held the body for all but two years since 1995. Needless to say, your perspective on the filibuster changes once you’re in the minority. What had been a tactic to obstruct and delay now becomes a method to keep truly awful legislation from passing. One can imagine, five years from now, that a GOP-controlled Senate with just 52 Republicans could pass through anti-choice legislation, or reinstate Don’t Ask, Don’t Tell, or repeal the Affordable Care Act. Without the filibuster, Democrats could complain, but they’d be powerless to stop the legislation.
Additionally, some Democrats are simply leery of playing around too much with Senate traditions. The Senate prides itself on its institutional consistency, and at least theoretically, senators like to believe that they put the Senate above mere partisan aims. The filibuster may do more harm than good, but it’s harm with a long and storied tradition.
There are also good reasons why a parliamentary body should allow the minority, or even one senator, to delay legislation through the use of debate. Strom Thurmond was absolutely, horribly wrong about civil rights, but nobody can say that the Senate did not take note of his objections, nor that his complaints were stifled. In a democracy, free and open debate is not a luxury, but a necessity. Even when it makes it hard for you to get things done.
Filibuster reform has been held up in no small part because Senate rules require two-thirds support to amend them. Since the minority party benefits from the filibuster’s ability to stop the majority, Senators in the minority have been loath to support filibuster reform. With 40 votes against reform, any changes to the rules are blocked.
There is a time when that could change, however. The Senate has by long custom continued its rules from session to session, under the theory that two-thirds of senators were not up for re-election in the previous year, so the Senate, as an institution, has not changed. This stands in contrast to the House of Representatives, which adopts new rules at the start of each session.
There is not, however, any particular reason why the Senate must continue its rules at the start of a new Congress. The standing rules say they continue, but a new Congress could, in principle, simply author new rules, and declare that they need not be bound by the old ones.
That gives Democrats an opportunity. On the first day of the session in January, a majority of Senators could change the rules, or chuck them out and start over. The vote could even be structured to block a filibuster on the measure itself.
If Democrats decide not to change the rules, then they lose their chance until 2015 — meaning that the GOP would be free to continue to obstruct and delay. There’s no guarantee that Democrats will still hold the Senate at that point, either.
That is one more reason why Democrats may hesitate to change the rules altogether. Once the precedent is established that a majority can change the rules, there’s nothing stopping Republicans from changing the rules once they regain control of the Senate. Reid and his caucus have to balance the significant damage done by the filibuster with the prospect of further changes affecting them when they’re in the minority again.
Can the GOP Stop This?
Probably not. If the Democrats want to go ahead, there’s not much the Republicans can do to stop it. They can, however, retaliate with a series of parliamentary tricks, which could, in the short-term, cause more havoc than the filibuster.
Democrats who support changing the filibuster are hoping that the changes are minor enough that Republicans stop short of all-out war, and it’s likely they are. Still, saber-rattling is about all the GOP can do in the short term. The decision to go forward with filibuster reform is up to the Democrats, and they alone will have to decide whether the gain from erasing it is enough to outweigh the costs.
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Image Credit: Boston Public Library