If filibuster reform is to be serious, such myths must be shattered, which won’t be easy. What must be made clear is that the situation today is out of hand—that what happens now is not just “politics as usual” and that both sides do not abuse the threat of the filibuster equally.
As noted, the modern cloture system went into effect in 1917, with the adoption of Rule 22, which was intended to make it more difficult to delay or avoid a vote by stretching out debate. It was passed partially in response to public outcry against the “little band of willful men,” the senators who obstructed Woodrow Wilson’s desire to arm merchant vessels in the years before the US entered World War I. Designed to rationalize a procedure for bringing matters to the Senate floor for votes, the same process, with some refinements, is the one we follow today.
To advance to a final vote, a bill must first be placed on the Senate calendar, which mainly happens after it is voted out of a committee. Then, after it is placed on the calendar, it still must reach the Senate floor, which can happen in two ways. The first is by unanimous consent, in which senators all informally agree to bring a matter to the floor. As we saw with the dispute over extension of unemployment benefits, one senator—in that case, Kentucky Republican Jim Bunning—can stop unanimous consent entirely on his or her own. But most of the time, at least on uncontroversial matters, the Senate retains enough of its old, pre-polarization decorum to allow unanimous consent to work.
According to Rule 22, the other way for a matter to reach the floor is through the filing of a cloture motion. This is the method used on many more disputed matters. Here, a member of the majority senses or believes, by means of private communications or outright public statements, that the minority is willing to filibuster a piece of legislation. A member of the majority in such a case files a cloture motion referring to a particular bill, a petition that sixteen senators must sign. The motion is filed. It has a day to “ripen,” and the majority leader then can call the motion up on the second day. This is when the first vote takes place requiring the supermajority of sixty. If the majority fails the first time, it can try again, as we saw with financial regulatory reform, when Harry Reid didn’t get sixty votes to bring the bill to the Senate floor until the third attempt. In the first attempt, the motion to bring the reform bill to the Senate floor received only fifty-seven votes.
Matters can get much more complex than that. While all votes on final passage of a bill require just a simple majority of fifty-one, a number of procedural votes can also require sixty—for example, the naming of senators to serve on the conference committee to work out differences between its bill and the House’s. In addition, matters that have a direct impact on revenue can be passed under so-called “reconciliation” rules, which do not require a cloture vote—the 2001 Bush tax cuts were passed in that fashion and any changes to those cuts may be made by simple majority. But the process I have described of filing a cloture motion is the one that gets press attention—the one, for example, that played out in the Senate in the days before Christmas last year, when debate on the health care bill was ended (60–40) and the bill passed (60–39). Many casual observers thought this first vote was on the bill itself, not on cloture.
A look at the historical record shows that for a time, the rule worked pretty well. The period from the 1930s to the early 1970s saw a vast decline in filibustering, except, specifically, on civil rights–related matters. The querulous Huey Long, unsurprisingly, tested his fellow senators’ patience with around twenty filibusters from 1933 to 1935, on both important and trivial matters; his last filibuster put an end to a catch-all appropriation just two weeks before he was killed by an assassin. Most senators came to agree that the filibuster was heavy artillery, a long-bomb pass, to be used only in the most extreme and contentious circumstances. Thus, Strom Thurmond set a record with his twenty-four-hour speech against civil rights in August 1957 (the Senate had air-conditioning by then). In the 1970s, that consensus began to decline. Legislators in both parties were to blame, driven by the then-new forces that were changing politics: the decline of party, the defining role of money, the importance of television.
We can’t measure the incidence of filibusters in this modern era. Usually, they are merely threatened by the minority, at which point the majority begins the cloture process and tries to round up sixty votes. Actually rolling out the cots, which happens very rarely—yes, the United States Senate maintains a storeroom of cots—is considered an unacceptable delay in Senate business. But we can measure petitions for cloture, which are typically filed by majorities in response to perceived threats of filibusters. Experts agree that the number of cloture motions correlates quite closely to the number of threatened filibusters. The picture since the 1970s is an increasingly alarming one. From Rule 22’s enactment through 1970, the number of motions filed in any given Congress (a two-year period) never surpassed single digits. Then, quickly, there were twenty-three in 1971–1972, forty-four in the next Congress, and eighty in 1993–1994.
After a brief dip, we come to the present day, when the number of motions has gone through the roof, reaching 139 in the Congress of 2007–2008. So far in the current Congress, there have been only a small number of actual filibusters—for example, the attempt to delay the extension of unemployment benefits—but 117 cloture motions have been filed.3 They affect a substantial portion of the Senate’s business. The political scientist Barbara Sinclair has found that about 8 percent of major Senate bills in the 1960s were subject to filibuster politics, by which of course she means cloture motions to head off filibusters; in our decade, she puts that figure at 70 percent.4
Bearing in mind which party controlled the Senate during any given two-year period, one can glean a sense of which party threatens filibusters more often while in the minority. It is certainly true that both parties have used the threat excessively. But the numbers show that Democrats have filed more cloture petitions, suggesting that Republicans have threatened filibusters more often, especially just recently. The combined 256 motions filed since the Democrats recaptured the Senate in the 2006 election is far more than the 130 motions Republicans filed in response to Democratic filibuster threats between 2003 and 2007 when George W. Bush was president and the GOP controlled the Senate (and since the current Congress is not over, presumably more are on the way).
These numbers are especially distressing when one considers that a 1975 reform, in recognition of the growing problem, was designed to reduce filibuster threats. Previously, sixty-seven votes (technically, two thirds of all voting senators, so possibly fewer) were required to invoke cloture and end debate on a question. The 1975 reform lowered the threshold to sixty (three fifths of all senators, so always sixty). And yet, the change produced more gridlock, not less. Koger writes:
These reforms institutionalized the notion that filibustering was an ordinary element of Senate decisionmaking. The 1975 reform may have lowered the threshold for cloture slightly (or not, depending on participation), but it also stabilized the threshold—thereby reducing the incentive to hold multiple cloture votes—while implicitly marking senators’ acceptance of supermajority rule in the Senate.
Somehow, it seems, a threshold of sixty-seven signaled to senators that the maneuver was to be used only in the most dramatic situations, but sixty sounds easier in theory for the majority to attain, and pressure from the minority on the majority to get sixty votes is somehow less unreasonable than pressure to get sixty-seven. Thus the practice of using cloture to end disputes became a routine part of Senate practice.
It was institutionalized for one more reason, in fact probably the main one. Minorities rarely pay a political price for threatening to filibuster. The cloture motion procedure is so arcane, so hidden from the view of all but the most initiated observers, that the public usually has no idea whom to blame for gridlock. When, for example, important executive branch positions go unfilled, average citizens tend to assume that the president simply hasn’t gotten around to appointing someone, whereas the truth is likely to be that the appointment was made months ago but has been languishing in the Senate (as of late May, 240 Obama appointees were awaiting confirmation votes). In 1993–1994, the Democratic majority filed eighty cloture motions, obliterating the previous record of fifty-nine and indicating numerous GOP threats of filibuster. The GOP not only paid no price in public disapproval; owing to the failure of Clinton’s health plan and other factors, it took back the Senate. The same, of course, could happen this November. In late June, a minority of forty-one, all but one of them Republicans, prevented a majority of fifty-seven from extending unemployment benefits to 1.2 million Americans. Many of those Americans know only that the Democrats are in charge in Washington and have no idea that a GOP minority blocked their payments. So Republicans may stand in unified opposition to Obama’s proposals, while also blaming Obama for being partisan; they may then benefit at the polls in November.
Koger’s study is highly academic and most readers will find Binder and Smith’s volume more accessible, even if it is now somewhat out of date. But Koger provides mountains of useful data, and his history comes to life in passages such as his account of Huey Long’s last filibuster. I’m not sure I agree, though, with his central conclusion, which is that the institutionalized acceptance of the sixty-vote Senate is a function of “the rising value of senators’ time.” That is, because senators are so pressed by so many time demands in our era, and because the Senate considers so many more matters than it did a century ago, the mere threat of a filibuster has led its members to conclude that “wasting time is more costly than accepting the outcome of a cloture vote,” even if the result isn’t to their liking.
I can readily believe that this is a factor, and perhaps an important one. It is surely one reason why we never see Mr. Smith–style filibusters anymore (another being, I think, fear by the minority of criticism in the press). But surely polarization is the main reason. If the current Republican caucus of forty-one senators included, say, twelve or fifteen moderates rather than the two to four who are there now, the demands on their time would be unchanged, but surely the health bill would have received a few GOP votes. The statistical formulas of the sort Koger marshals don’t point to polarization as the main answer; Senate watchers see evidence of polarization every day. Sarah Binder, who works at the Brookings Institution, believes that time constraints and polarization are linked: “Time is a constraint in part because minority members are making it hard for the majority to get things done,” she told me recently.
In any case, the Democrats are putting forth some interesting reform proposals. Tom Harkin of Iowa, who has been concerned about this issue for a decade or more, envisions a scheme to reduce the threshold whereby the first cloture vote would require sixty votes to end debate; a week later, if it failed, that would be lowered to fifty-seven; a week after that to fifty-four; and finally in week four to a simple majority of fifty-one. It’s a bit of a shell game, in that the majority can just wait the minority out, but it would give the minority a full month to make its case to the American public and change opinion.
Other possible approaches include redefining what is “debatable” under Senate rules. For example, under current Senate rules three motions are required in the Senate to go to a conference with the House intended to iron out the differences in the two chambers’ versions of a bill. Those motions are now subject to debate and sixty votes are needed to pass them. They could be declared “nondebatable.” Also, just as the Byrd rule freed budgetary items from cloture rules, the Senate could make other categories of measures—such as approval of judges and other presidential appointees—subject to simple majority votes. Finally, reforms could be declared to go into effect four or five Congresses from the time of voting, so neither side would know which party would immediately benefit.
Those interested in reform will face harrowing procedural hurdles. There are two ways to change the rules. One is a straightforward rewriting of Rule 22 itself. But—surprise—there’s a catch. When the senators of 1975 reduced the cloture threshold from sixty-seven to sixty, they retained the part of the rule stipulating that any future changes to the threshold would still require sixty-seven votes (a compromise that the reform faction, led by Walter Mondale, had to accept). That 1975 effort was bipartisan; Mondale worked with Republican James Pearson of Kansas. Such cooperation today, resulting in two thirds of senators agreeing to a rule change, seems utterly impossible.
The second route is championed by New Mexico Senator Tom Udall, who calls it “the Constitutional option.” Normally every odd-year January when Congress reconvenes, the House of Representatives declares itself a new body and must vote to readopt its rules; the Senate, however, declares itself a “continuing body,” simply rolling its rules over to the current term (not without justification, since two thirds of senators in any new Congress are not new). Udall wants the Senate to declare itself a new body next January. As such a body, it could change its rules by simple majority vote. Senate scholars appear to believe this is within the rules. But if we imagine the pandemonium that would be unleashed in the conservative press, especially after an election in which Democrats lost seats, it’s difficult to picture fifty-one Democrats holding together. And declaring the Senate a new body would make for open season on all rules, a fact of which the minority will surely be aware. Republicans, for example, may want to change rules to require supermajorities for tax increases, an idea that was embedded in Newt Gingrich’s Contract With America.
Reducing the supermajority threshold would, of course, benefit Republicans when they control the Senate. Partial privatization of Social Security, for example, might become more feasible (although it’s worth remembering that it was so unpopular in 2005 that no one even wrote a bill providing for it). But the current sixty-vote Senate makes the prospect of most serious liberal change unthinkable. What we have now, as Madison and Hamilton warned, is minority rule, with the Senate majority paying the political price for the gridlock as problems and crises go unaddressed. Unions, environmental groups, and liberals should confront the fact that it’s not a lack of presidential will that is the chief impediment to their agenda. They should mobilize accordingly.
—September 1, 2010
See for example Ezra Klein, "The Rise of the Filibuster: An Interview with Barbara Sinclair," The Washington Post, December 26, 2009.↩
Who's Afraid of a Filibuster? November 11, 2010
'The Specter Haunting the Senate' October 28, 2010
See for example Ezra Klein, "The Rise of the Filibuster: An Interview with Barbara Sinclair," The Washington Post, December 26, 2009.↩