NOVEMBER 16, 2012
TWO-AND-A-HALF years ago, Senate Majority Leader Harry Reid pledged to reform the filibuster at the start of the current congressional session. Every returning Democratic senator signed a letter complaining that Republican routinization of filibusters was imposing a 60-vote supermajority requirement on nearly all significant bills. Something had to change. But nothing did. Reid traded away filibuster reform for a Republican promise to filibuster less often and to stop using several other stalling tactics. It was a bad deal for Reid’s party and the country.
You can get a rough sense of the number of filibusters invoked in any given session by counting cloture votes, which bring debate to an end. There have been 68 in the current Congress, down from 91 in the previous one. That’s a 25 percent drop. But before you break out the champagne, remember that 2012 was an election year and the president barely tried to push any legislation through Congress. As of September 1, the number of bills passed into law in the current Congress (173) was 45 percent smaller than the number passed in the previous one. A one-quarter drop in cloture votes isn’t progress when the number of bills passed drops by nearly half. It’s a disturbing sign that the filibuster is being abused even more regularly.
Reid once again says he will reform the filibuster when the new Congress begins in January. But his agenda is narrower this time: He only wants to eliminate the filibuster on a bill’s “motion to proceed,” before votes on amendments and final passage. Those substantive votes would still be subject to filibusters, threats of which would remain a very effective way to prevent bills from coming to the floor. Reid isn’t fighting to pass Senate bills by simple majority, as envisioned in the Constitution. He’s fighting to free senators to do the thing they love best: talk.
The filibuster does not have a distinguished history. The term (from filibustero, Spanish for “pirate”) originally referred to the hijacking of legislative business when a member took advantage of unlimited debate on the floor of the House or Senate. The House, which has too many legislators to tolerate such indulgence, jettisoned the filibuster in the nineteenth century. But Southern senators used it to defend underappreciated regional customs like the lynching of uppity Negroes and the preservation of whites-only public schools, lunch counters, and water fountains. Liberals filibustered on occasion, too, but with much less success. In 1953, independent Oregon Senator Wayne Morse waged a 22-hour filibuster to block a bill favored by the oil industry that gave Texas control over an oil field under the Gulf of Mexico. When he finished, the bill passed anyway.
Defenders of the old-style filibuster, when groping for a heroic example of the practice, usually settle for a fictional one: Jimmy Stewart speechifying himself hoarse in Mr. Smith Goes to Washington (1939). Even this heralded moment doesn’t withstand scrutiny. Pray tell, Senator Smith, once you block funding for the graft-ridden Willet Creek Dam, where do you suppose the people will get their electricity and construction jobs? Don’t you know there’s a Depression on? (American politicians, incidentally, didn’t always revere Mr. Smith. At the time of the movie’s release, Senator Alben Barkley told my “TRB” predecessor Richard L. Strout that its unflattering depiction of the Senate was “a source of disgust and hilarity to every member of Congress who saw it.”)
Instead of abolishing the filibuster, the Senate tried to tame it by introducing, in 1917, a cloture rule. Filibusters could now be stopped by a two-thirds majority. This change failed to alter the practice, so in 1975, the cloture threshold was lowered from 67 votes to 60. In return, the Senate minority (then, as now, Republican) was allowed to filibuster without having to do the talking part. That worked for a little while, but as partisanship heated up in the late ’80s, the nofriction “procedural” filibuster became an addictive drug. The number of cloture votes ballooned from 23 in 1985–1986 to 43 in 1987–1988 and a staggering 112 in 2007–2008. In the bad old segregationist days, cloture votes had never exceeded ten. Harry Truman’s famous “do-nothing” Congress of 1947–1948 had none at all. Today, cloture votes are so common that young people could be forgiven for believing the Constitution requires 60 votes for Senate passage of any bill.
The argument most commonly made in the filibuster’s favor is crudely partisan: Our side may be in the majority now, but someday it will be in the minority, and when that happens we’ll want to block the other side’s extremist agenda. The obvious problem with this (bipartisan) brief is that it judges eternal stalemate to be an acceptable outcome. The argument’s superficial evenhandedness ignores the fact that Democrats are always going to mind government inaction a lot more than Republicans, who believe that he who governs best governs least. Washington gridlock inherently promotes conservatism.
A more exalted argument for the filibuster is that it diminishes polarization by forcing Democrats and Republicans to find common ground. “I’ve served with several hundred senators under every partisan configuration imaginable,” former Senator Chris Dodd, a Democrat from Connecticut, said in a 2010 speech that argued for maintaining the filibuster. “And as odd as it may sound in the present political environment, ... I cannot recall a single Senate colleague with whom I could not work.”
But the benefit accrued when both sides are able to reach agreement on some matters must be balanced against the harm when one side is able to block action on other, often more important matters. Big problems in the United States go unaddressed for decades because the Senate cannot act. It took a century for the government to safeguard African Americans the right to vote after passage of the Fifteenth Amendment. It took a century for the government to enact near-universal health coverage after Teddy Roosevelt broached the topic in his Bull Moose presidential campaign. And it has been well over a century since Congress passed the General Mining Act of 1872, which invited private, royalty-free despoilment of public lands. Environmentalists and deficit hawks still can’t force a necessary overhaul through the Senate.
So let’s hope Reid and his fellow Democrats press a little harder this time. There isn’t much chance, alas, that the filibuster will be eliminated entirely. But eliminating the procedural, no-talking filibuster would be a good start. The majority leader has the votes to effect a rules change by simple majority. Now he just needs the resolve.
Timothy Noah is a senior editor at The New Republic. This article appeared in the December 6, 2012 issue of the magazine under the headline “Die, Filibuster, Die.”