Lately I have seen increasing commentary on the need to “fix” the filibuster – that arcane parliamentary device used in the World’s Greatest Deliberative Body. (That would be the United States Senate, in case you didn’t know.) For readers who snoozed during high school civics class – the filibuster is open-ended debate on a piece of legislation. Debate can continue indefinitely, until “cloture” is invoked – cutting off debate and bringing the issue to a vote – or until both sides agree, by mutual consent, that the issue is tabled: i.e., put aside. Today, cloture requires sixty votes, no matter how many senators participate in the vote. Merely 60% of those voting will not do it.
Back in the day – actually, well within my own lifetime – filibusters were conducted in person. Senators took turns reading from the Congressional Record or the encyclopedia, or even the telephone book, in order to hold the floor. If they didn’t do so, a member of the opposition might take the floor – in the dark of night, for instance – to move for a vote on the legislation at issue. Thus, in recent years the Senate has adopted the “virtual filibuster,” whereby both sides agree that a filibuster is operative in the background, allowing other business to be conducted.
Senate lore has it that Senator Strom Thurmond set the personal filibuster record by talking for 24 hours and 18 minutes straight, during the filibuster of a 1957 civil rights bill. In 1964, Democrats – including Senators Thurmond (SC), Al Gore, Sr. (TN), Robert Byrd (WV), Richard Russell (GA), and others – filibustered a civil rights bill for 57 days before Minority Leader Everett Dirksen led Republicans to cast decisive votes for cloture. Historically, filibusters could be stopped only by a vote for cloture by 2/3 of sitting senators, but in 1975 the Senate changed the cloture rule to 60% – i.e., sixty votes from the 100 senators.
For a time, Senate filibusters receded into dusty disuse – like Senate spittoons left over from a more robust time when men were men and… well, never mind… Gradually, the Senate settled down to a kind of live-and-let-live gentility, while Democrats held majorities for donkey’s years (so to speak). Some Republicans, like Gerald Ford, spent their entire Senate careers as members of a permanent minority. Judicial nominees were very seldom filibustered. A notable exception was the filibuster of President Johnson’s 1968 nomination of Abe Fortas for Chief Justice. In that case, members of the president’s own party actually joined the filibuster. The president ultimately withdrew the Fortas nomination.
Things began to get livelier in 1981, when Republicans won both the presidency and their first Senate majority in a generation. Democrats, in the unfamiliar role of minority opposition, soon rediscovered the filibuster as a valuable tool of obstructionist-governance. The count of threatened-filibusters immediately escalated, as it also did when Republicans lost their majority in 1987. Cloture-motions per session rose in rough proportion to how controversial the public perceived either the Senate’s majority or the presidential administration to be. (Please refer to the attached TPM chart, drawn from “The Rise of Cloture: How GOP Filibuster Threats Have Changed the Senate,” by Ben Frumin and Jason Reif; January 27, 2010.)
During the early years of Bill Clinton’s presidency, when several controversial measures were advanced, Democratic cloture-motions, prompted by GOP filibusters, reached an unprecedented count of 80 for the 103rd Congress (1993-1994). After the Republican landslide of 1994, Democrats – again in the minority – pushed the cloture-motion count still higher with actual or threatened filibusters. The per-session cloture-count never fell below 60 again, as Democrats vigorously wielded the filibuster against many of George W. Bush’s judicial appointments and other legislation.
Republicans complained bitterly – especially about the judicial appointments – going so far as threatening to change Senate rules to exclude filibusters on appointments. To forestall this drastic step – popularly called the “nuclear option” – a “Gang of 14,” consisting of seven Republican and seven Democratic senators, agreed to let certain presidential judicial nominations come to an up-or-down vote, regardless of party-positions on them. The informal caucus also agreed to let all Supreme Court nominees have a confirmation vote. The 14 further promised to oppose any attempts to change the Senate’s filibuster-rules. The agreement, crafted in the spring of 2005, applied only to the 109th Congress.
In those minority days, Democrats clearly regarded the filibuster as a worthy tool that empowered them to stop – or at least slow – the outrages of the (hated) Bush-Cheney administration. Conservative news organs were in full cry about Dems’ “obstructionism,” but liberal outlets like the Washington Post were silent. The Gang of 14’s intervention produced a certain amount of cluck-clucking from liberals, but it was generally agreed that saving the viability of the filibuster in the Senate was a salutary result, even if the price was letting a few Bush judicial appointees through.
As they say, that was then and this is now. Once Democrats took over the House and Senate in the 110th Congress, Republicans ratcheted up the number of threatened or actual filibusters to bring the cloture-motion count to nearly 140 (see the graph) – more than twice the count in the previous Congress. Fewer than half of these filibusters withstood Democrats’ cloture votes, however. Republican filibusters may have delayed but have not stopped Democrats because the GOP has had only 40 senators. The addition of Scott Brown, in January 2010, as the 41st Republican raised a warning flag for Democrats, however. They have begun complaining about the filibuster, now that the shoe is on the other foot.
Suddenly, the filibuster is a danger to good and efficient governance. (Who knew?) Serious writers (or so I had assumed them to be) are now crafting thoughtful pieces about the “danger” the filibuster in its present form represents to the nation – i.e., to the Obama Agenda. Ruth Marcus wrote a piece this week in the Washington Post – “Yes, We Can Fix the Filibuster” – in which she listed several recommendations by which we can mend, but not end, the filibuster. These include:
- Executive branch positions would not be filibustered.
- Senators would not be able to filibuster both the motion to take up a measure and the measure itself, as is presently possible.
- In the interest of efficiency, current Senate requirements for a two-day wait and 30 hours of debate before a cloture vote should be discarded.
- Change the filibuster rules via a two-thirds vote (almost zero chance).
- The cloture threshold has been reduced before, and it could be reduced again (at least while Democrats are in the majority).
Pointing out hypocrisy in politicians is like pointing out that a dog has fleas. It is wholly unnecessary. But hypocrisy hits a new level when you try to change the rules in the middle of the game, simply because you don’t like the way things are going for your side. Democrats were totally cool with the filibuster when they used it to block George W. Bush and his Republican Congress. (I recall not a word from Miss Marcus about the filibuster then.) But now that the Democrats’ ox is being gored, the filibuster must go.
The Senate is what it is. Often it doesn’t seem to get a lot done. But critics who bemoan this fail to comprehend that the nation’s founders – Madison, Jefferson, Washington, et al – actually designed it to be that way. The Senate was meant to be the more “deliberative” body of the two. It wasn’t supposed to be able to rush things through on a fast track.
More than that, the Senate is the literal embodiment in our system of the rights of the minority, in several ways. The filibuster represents one of those ways. Another way lies in the fact that every state – whether large or small in population – has two senators. California (pop. 37 million) has the same clout in the Senate as Wyoming (pop. 544,000). This arrangement also enhances the influence of smaller states in the Electoral College, since every state's votes equal the number of its representatives plus its two senators. So when you hear people yelling about the “antiquated” Electoral College, they’re really complaining about the fundamental protection for small states and minorities that is built into our federal system.
These are good things to keep in mind when one party or the other declaims about “fixing” the filibuster. In our system, it doesn’t really need fixing. Democrats should remember that they might be in the minority again in the near future. They shouldn’t do something now that they will regret later.