Although the “fiscal cliff” remains the dominant issue in Washington, Senate Democrats remain committed to reforming the filibuster in order to prevent the minority party from continuously blocking legislation from moving forward. Following the November election, U.S. Senate Majority Leader Sen. Harry Reid (D-Nev.) indicated that he would aggressively pursue filibuster reform with or without Republican support. “We’re going to change the rules,” Reid said. “We cannot continue in this way. So I hope we can get something Republicans will work with us on.”
Proponents of the filibuster often argue that it is the “Soul of the Senate,” fundamental to the protection of political minorities as well as a stable and deliberative government. However, while protections for the political minority are important, the filibuster has become a tool of minority obstructionism, paralyzing the Senate by preventing it from debating or voting on bills, resolutions, or presidential appointments. Rule XXII of the Standing Rules of the U.S. Senate permits a minority of forty-one senators, who may be elected from states containing as little as eleven percent of the nation’s population, the power to stifle the Senate in contravention of the principle of majority rule.
The filibuster is an artifice of the Senate rules; it was neither enshrined in the Constitution nor was it contemplated by the Founding Fathers. Rather, the Constitution is quite specific about which acts need supermajority approval: (1) impeaching the president (2/3 majority in the Senate – Article 1, Section 3); (2) expelling members (2/3 vote of the house in question – Article 1, Section 5); (3) overriding a presidential veto (2/3 majority in both the House and the Senate – Article 1, Section 7); (4) ratifying treaties (2/3 majority in the Senate; Article 2, Section 2); (5) calling a constitutional convention (2/3 of the State legislatures – Article 5); (6) passing a constitutional amendment (2/3 majority in both the House and the Senate – Article 5); (7) ratifying a constitutional amendment (3/4 of the States – Article 5); (8) restoring the ability of certain rebels to serve in the federal government (2/3 majority in both the House and the Senate – 14th Amendment); and, finally, (9) approving the removal of the President after the Vice President and the Cabinet approve such removal and after the President contests the removal (2/3 majority in both the House and the Senate – 25th Amendment).
In addition, the 12th Amendment requires a supermajority for a quorum when the presidential election is not decided by the Electoral College. Nothing in the Constitution, however, permits the Senate to insist on a supermajority for regular legislation. How, then, is the Senate permitted to give such extraordinary power to 41 percent of the senators? By Article 1, Section 5, which grants the House and the Senate the power to “determine the Rules of its Proceedings.”
Following the ratification of the Constitution, the Rules Committee of the first Senate adopted the “previous question motion” from English parliamentary practice. According to the “previous question motion,” the Senate could put the substantive question being debated (i.e., the “previous question”) to an immediate vote without further delay, postponement or debate. Thomas Jefferson, the Senate President during his four years as John Adams’ Vice President, described the “previous question motion” thusly in what later became known as Jefferson’s Manual:
When any question is before the House, any Member may move a previous question, “Whether that question (called the main question) shall now be put?” If it pass in the affirmative, then the main question is to be put immediately, and no man may speak anything further to it, either to add or alter. . . . The previous question being moved and seconded, the question from the Chair shall be, “Shall the main question now be put?” and if the nays prevail, the main question shall not then be put.
The “previous question motion” remained in effect from 1789 to 1806, and in that time it was invoked ten times to instantly end debate and subject the substantive issue being discussed to a majority vote. In 1806, however, Vice President Aaron Burr argued that the Senate rules were excessively complex and required simplification. Because the “previous question motion” had been used infrequently during Burr’s four-year term as Jefferson’s Vice President, he believed that it was unnecessary and could be eliminated entirely. Following Burr’s advice, the Senate revised its rules in 1806 and eliminated any reference to the “previous question motion.”
Eliminating the “previous question motion” meant that senators were permitted to delay, postpone, or debate a matter indefinitely. This tactic came to be known as the filibuster, a term derived from the Spanish filibustero, itself deriving from the Dutch vrijbuiter, or “privateer,” “pirate,” or “robber.” However, it was not until over 30 years after eliminating the “previous question motion,” in either 1837 or 1841 (depending on the source), that a member of the Senate took advantage of its absence to launch the first filibuster.
Today, a filibuster can take place at several stages during the legislative process. Before a bill is even introduced, a senator can place an anonymous hold on it – merely the threat to stage a filibuster – through the majority or minority leaders. After a bill has been introduced, debate cannot even begin without a unanimous consent agreement or the adoption of a motion to proceed. Under Rule VIII, a motion to proceed is a debatable motion, and therefore it can be filibustered. Once a motion to proceed has been adopted and substantive debate has begun, the debate cannot be brought to an end without the unanimous consent of the senators. The ending of floor debate can therefore be filibustered if even a single senator objects. In addition, amendments to a bill and conference committee reports on the bill can also be filibustered. Even if a filibuster is overcome, however, thirty more hours of debate are permitted before the calling of a vote.
A filibuster can only be defeated by the adoption of a motion for cloture under Rule XXII. Prior to 1917, however, there was no way for the majority to stop a filibuster. In 1917, after the Senate successfully filibustered the Wilson administration’s bill to arm American merchant ships following the sinking of the RMS Louisiana by a German U-boat, President Wilson urged the Senate to reform its rules. The Senate “is the only legislative body in the world which cannot act when its majority is ready for action,” Wilson lamented. “A little group of men,” he continued, “representing no opinion but their own, have rendered the great government of the United States helpless and contemptible.
Public pressure eventually forced the Senate to capitulate. Just one month before the United States declared war against Germany, the Senate adopted a rule that a two-thirds vote of a quorum of Senators could cut off debate. This procedure became known as the “cloture rule.” The Senate revised the filibuster again in 1975, introducing the “invisible filibuster” – i.e., senators need not speak during a filibuster, they merely need to indicate their intention to filibuster – and reducing the number of votes required to adopt a motion for cloture to a three-fifths vote of the Senate (60 votes).
Historically, senators have refrained from using the filibuster to stifle legislation. From 1840 to 1917, when the filibuster could not be stopped, there were a total of thirty-three filibusters: sixteen between 1840 and 1900 – i.e., one every four years – and an additional seventeen between 1900 and 1917. Similarly, in the period 1917 to 1969, after adoption of the cloture rule, there were only eighty filibusters (or 1.6 per year).
Since then, however, the filibuster has become the weapon of choice for the minority, even as it has become easier to overcome (as it did in 1975). The following chart illustrates the drastic increase in the number of cloture motions filed in every congressional session since 1919 (through May 14, 2012):
Tracking the number of cloture motions is an imperfect measure. As Ezra Klein has noted, the number of cloture motions could rise simply because the majority is attempting to break the filibuster more frequently, even though the number of filibusters remains constant. On the other hand, however, because many filibusters never receive a cloture vote, tracking the number of cloture motions may inadequately account for the increased use of the filibuster. Even accounting for these deficiencies, one thing is absolutely certain: “the filibuster is a constant where it used to be a rarity.”
That the filibuster has become the norm is precisely why it has become such of a problem. In the past, Democrats have used the filibuster to prevent a floor vote, including to block former President George W. Bush’s judicial nominations. But Democrats have never used the filibuster on the scale currently employed by Senate Republicans.
Congress, as a result, has been left paralyzed. The famed “do-nothing Congress” (80th; 1947-1948) managed to pass 906 bills over its two-year period. By comparison, the current 112th Congress (2011-2012) has passed just 196 bills, the lowest total since the U.S. House Clerk’s office started keeping track. Even though the current legislative session is not yet complete, the 112th Congress is shaping up to be one of the worst congresses in our history.
Thomas E. Mann and Norman J. Ornstein, known for their balanced view and proclivity toward moderation, argue that the Republican Party is to blame. “The GOP has become an insurgent outlier in American politics,” Mann and Ornstein wrote in a Washington Post op-ed. “It is ideologically extreme; scornful of compromise; unmoved by conventional understanding of facts, evidence and science; and dismissive of the legitimacy of its political opposition.”
Busting the filibuster would go a long way towards breaking the gridlock and dysfunction currently gripping Washington. The last significant reform was adopted in 1975. But since then many senators and organizations have proposed changes to the current system, ranging from eliminating the filibuster entirely by having it declared unconstitutional to minimizing the effect of a filibuster by changing the Senate rules.
The nonpartisan Common Cause, for example, sued the Senate last Monday (Dec. 10), challenging the constitutionality of the filibuster. According to the lawsuit, the filibuster is unconstitutional because it is in contravention of the principle of majority rule. It is unclear whether or not the lawsuit will be successful. But because the Constitution grants Congress the power to “determine the Rules of its Proceedings,” a principle that was reiterated by the Supreme Court in United States v. Ballin in 1892, it seems unlikely that the Court would choose to intervene.
Recently, however, Senate Democrats are preparing to take reform into their own hands. Sen. Jeff Merkley (D-Ore.) has proposed re-introducing the talking filibuster – think “Mr. Smith Goes to Washington.” According to Merkley’s proposal, if a minority of at least forty-one senators wishes to extend debate, those senators must lead the extended debate by ensuring that at least one senator is on the floor presenting his or her arguments. But if no senator were present to speak to the bill, then the presiding officer would rule that extended debate had concluded, and the bill, following the normal period of thirty hours of post-cloture debate, would be put before the Senate for a vote. In other words, extended debate should really mean extended debate.
There is merit to this idea. However, while re-introducing the “talking filibuster” would make the process more transparent and filibustering a bill more difficult, it would not prevent a determined minority of senators from stifling legislation. In other words, although Sen. Merkley’s proposal would preserve the rights of the minority, it would not necessarily make it easier for the Senate to govern.
A better approach has been advocated by Sen. Tom Harkin (D-IA) for quite some time. Sen. Harkin’s proposal includes the requirement that senators, in order to filibuster, must actually debate on the Senate floor. But it goes one step further. The first attempt to end a filibuster (i.e., cloture) would still need 60 votes. If cloture fails, sponsors could try again three days later, but would need only 57 votes. If that still fails, they could try again in another three ays, but would need only 54 votes. The final attempt, after three more days, would need only a simple majority of 51 votes to end debate. The Harkin approach therefore adopts a reasonable middle ground. It preserves the rights of the minority by encouraging robust debate on major issues, while at the same time giving the majority the opportunity to govern.
For the first time since 1975, it appears the Senate is serious about filibuster reform. Some of the Senate’s most powerful members, led by Sen. Majority Leader Harry Reid, have taken up the mantle of leadership and are leading the charge to change the Senate’s rules. In May, Reid, who just last year had struck a “gentleman’s agreement” with Minority Leader Mitch McConnell (R-Ky.) to preserve the filibuster and defeat reform, issued an apology to all of the reformers he had previously stymied. “The rest of us were wrong,” he said. “If there were anything that ever needed changing in this body, it’s the filibuster rule, because its been abused, abused and abused.”