Fixing the Filibuster

Why It's Easier Said Than Done

Senators prepare for all-night filibuster, 2005. (Courtesy Reuters)

By many measures, 2012 was the U.S. Senate's least productive year in two decades. Republicans blame the Congressional Democrats. Democrats blame the filibuster. 

Obstructionism is not unique to the United States. Most parliamentary democracies, including Great Britain's and Japan's, have also faced gridlock. In 1992, the Japanese opposition tried to stall a vote on whether Japanese self-defense forces should assist UN peacekeeping missions by introducing five motions that had to be brought to a vote first. They then resorted to ushi aruki (cow-walking), or taking as long as humanly possible to make one's way from one's seat to the ballot box 20 feet away. For some legislators, the pace was less than one foot per minute. Some votes took over 11 hours. The opposition, nevertheless, lost.

Although procrastination holds up all legislatures from time to-time, few parliamentary democracies seem to face it as often as the U.S. Senate does. Perhaps that is because, as studies including those by the Association of Secretaries General of Parliaments, the National Democratic Institute for International Affairs, and Harvard University's Kenneth Shepsle have shown, individual senators in the United States have fewer reasons not to filibuster than those in other countries; Senate leaders, moreover, have fewer means than their parliamentary counterparts to prevent sluggishness from bringing government to a standstill.

A QUICK HISTORY OF SLOW POLITICS 

Counter to popular perceptions, for most of U.S. history, the filibuster was a rare event. The word "filibuster" does not appear anywhere in the U.S. Constitution or in the Standing Rules of the Senate. The word (historians trace it to the Dutch vrijbuiter and the Spanish filibustero, both of which mean "pirate") was not used in reference to Senate behavior until the late nineteenth century. 

Filibustering is not a right granted by a specific law; it derives instead from gaps in the rules, namely the Congressional ground rule that "No Senator shall interrupt another Senator in debate without his consent..." and the lack of a "previous question" rule. Such a provision, which is a standard feature for many legislative bodies, including the U.S. House of Representatives, permits a simple majority to decide to close a debate and call a vote on whatever matter is being discussed. In the United States, in other words, once a senator has the floor, he does not have to give it up until he wants to. 

For most of U.S. history, senators were generous with the floor. They had strong incentives to work together. For one, if Senator A impeded progress on Senator B's bill, A knew that B could, in the future, do the same. Further, since a filibuster would prevent progress on all pending business, Senators C through Z opposed A and B's dithering, since it reduced the likelihood that any senator's proposals would be brought to the floor. The data on filibusters bear out their infrequency; from 1790 to 1900, fewer than two dozen took place. 

Around the turn of the twentieth century, though, the filibuster started to become a real headache. Senators were ever less willing to state their objections and yield the floor to permit a vote to occur; it was an erosion of what the Massachusetts senator Henry Cabot Lodge called "reciprocal courtesy." When filibustering disrupted legislation backed by President Woodrow Wilson to arm merchant marine ships prior to World War I, the Senate finally made efforts to curb the practice. In 1917, the body approved its first cloture rule, meant to bring debates to a quick end. Under the new rule, 16 senators (one-sixth of the total number of senators at the time) could petition to end debate. The petition would pass if a two-thirds majority of those present and voting approved. The new cloture rule only applied to pending measures and not to procedural motions or Senate business, such as petitions to discharge bills from committee, proposals for joint sessions of Congress, or motions to adjourn.

The cloture rule, however, did little to alleviate the problem of filibustering. In fact, the rate of filibustering actually increased once the Senate created a way to cut it off. Between 1790 and 1916, 48 filibusters had taken place -- each lasting between several hours and several days. Between 1917 and 1925, when the Senate unsuccessfully attempted to place additional limits to the filibuster, 20 took place. Because senators could not invoke cloture on procedural motions, by mid-century they began filibustering on motions to take up bills and on judicial and executive branch nominations.

The sixfold increase in the number of filibusters in those years did not seem to trouble the Senate, nor did the continuing rise thereafter. It wasn't until 1975, when the Senate made an adjustment to the rules for invoking cloture -- its second in just over 25 years -- that the floodgates opened. The amended rule, that three-fifths of all senators had to vote in favor to end a debate, meant that a filibuster was relatively less likely to succeed, which in turn reduced the costs to senators of engaging in one. Indeed, 65 percent of all Senate filibusters in history have been waged since 1975.

The new cloture procedures, though, did not fully explain the explosion. In the late 1970s, a wave of controversial social policy questions came onto the agenda. But more important, Senate leaders made several further successful efforts to reduce the political costs of filibusters. As majority whip from 1971 to 1977, Robert Byrd developed a system known as "double-tracking." It permitted the Senate to turn to other matters while a filibuster was taking place. Double-tracking reduced the hardship of filibusters on everyone: the majority leader could prosecute his agenda despite holdups on some legislation, the filibusterer could prevent passage of a particular item without holding the floor for hours at a time, and rank-and-file senators had a greater chance of having their legislation debated and approved. The new procedures quickly resulted in a near doubling of the number of filibusters, from eight during the 92nd Congress (1971-72) to 15 in the 93rd Congress (1973-1974). 

BUSTING THE FILIBUSTER

With the new filibuster workarounds, senators' incentives to check their own or their colleagues' obstructionism fell away. Whereas filibustering once required senators to demonstrate yeoman strength and stamina (it is said that, in an effort to avoid trips to the restroom during his 24-hour 18-minute marathon effort to block the 1957 Civil Rights Act, Strom Thurmond dehydrated himself in a sauna beforehand), today senators have to expend very little energy to block measures they oppose.

Assessments of just how much damage the increasing use of the filibuster has caused vary. For one, there isn't really consensus about what constitutes a bona fide filibuster. Whether a particular maneuver is a filibuster depends on the intent of the senator; the introduction of multiple amendments is one senator's principled stand against a bad bill but another senator's hostile effort to bring the chamber's business to a standstill. And, even when there is no opposition to a measure, the Senate majority leader often preempts obstruction by filing a cloture petition simultaneously with calling up a bill to debate. It is generally easy to identify 15 senators willing to support that effort.

The confusion allows both the majority and the minority to distort the nature of the filibuster problem. Last month, Majority Leader Harry Reid (D-Nev.) claimed that he had to deal with 386 filibusters in the six years that he had held his current role. As Senator Charles Grassley (R-Iowa) noted, however, "When the members of the majority party complain about how many filibusters the Republicans have engaged in, they actually mean how many times the Senate has voted on a motion to bring debate to a close."

The reality is that, since the mid-1990s, the around-the-clock talkathon -- the traditional filibuster -- has been diminishingly rare, despite rhetoric that suggests that hundreds of filibusters are taking place each year. And although the Senate's lack of productivity in 2012 is worrisome, it is not altogether surprising given the divisive presidential election and the fact that the House of Representatives is controlled by the opposition party.

Nevertheless, Americans seem to agree that the Senate is broken, that the filibuster is responsible, and that the time has come to eliminate or reform it. For their part, the Democrats have proposed eliminating the filibuster on motions to consider legislation (essentially the motions that the majority leader makes to bring every item of pending business to the floor). Under current rules, those motions can be filibustered, which can prevent the chamber from even talking about a proposal -- to say nothing of voting on it. Democrats have also embraced a return to the so-called "talking filibuster," in which filibusterers would actually have to hold the floor, Mr. Smith Goes to Washington-style. 

Republicans, of course, lament the Democrats' effort. But just eight years ago, they were proposing filibuster reform so dramatic it was dubbed "the nuclear option." At the time, Majority Leader Bill Frist proposed cutting off Democratic filibusters on President George W. Bush's judicial nominations through a complicated series of maneuvers that would ultimately have required only a simple majority vote, rather than the 60-vote supermajority, to break the filibusters. Today, they insist that they never wanted filibuster reform on legislative questions and claim that Democrats' current proposals, if enacted, would represent unprecedented limits on minority rights in the Senate. 

It is as yet unclear whether the Democrats' reforms will come to pass. Senators in the majority regularly lead or join filibusters. Some Democrats might thus be reluctant to support more restrictive rules. Even if the reforms are enacted, moreover, it is unlikely that they will fix the problems that plague the chamber. The hyperpartisanship that has reduced the number of senators willing to cross party lines will not simply go away. Further, the return to the talking filibuster might even backfire, as it did the last time the Senate tried it, in 2005. That year, Rick Santorum (R-Penn.), who was majority whip at the time, organized a so-called "reverse filibuster," forcing Democrats to hold the floor and speak against several of Bush's judicial nominees. Santorum's plan was to confirm nominees whenever Democrats were not speaking. But the reverse filibuster backfired. Senate Democrats were equal to Santorum's challenge. After 30 hours of continuous debate, the Republicans had to abandon their plan and move on to more pressing legislation. 

There is no reason to think that the Democrats' gambit would be any more successful at improving the flow of work in the Senate. Mitch McConnell, the minority leader, warned as much in November 2012, when he declared: "In the name of efficiency, [the Democrats'] plan is to use a heavy-handed tactic that would poison party relations even more. In the name of efficiency, they would prevent the very possibility of compromise and threaten to make the disputes of the past few years mere pillow fights." Indeed, every time the Senate has tried to reduce the number and impact of filibusters, there have usually been more of them. 

Despite the challenges that filibusters create, one thing that they can do is force the two parties to find common ground. As Senator Lindsay Graham (R-S.C.) has said, "In a nation increasingly defined by 'my way or the highway' politics, the filibuster requires legislators to build political bridges. It performs an important role by making competing forces -- whether ideological, partisan, or regional -- work together and find common ground. There must be broad-based 'buy in' before the Senate can move forward." Indeed, despite an increasingly polarized chamber, when the Senate has acted this year on such issues as highway funding, agricultural programs, and Defense Department funding, it has done so with the agreement of large, bipartisan majorities.

The reform proposals on the table now are unlikely to increase comity in the chamber. Instead, with the House and Senate controlled by different parties, each trying to press its legislation and thwart its opponent's agenda, next year's Congress could be worse than today's. And filibusters are just one tool in lawmakers' arsenals for grinding things to a halt.

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