By Eli Watkins
If the Senate is where bills go to die, then the filibuster has long been the pillow used to smother them. This is not a statement for or against the filibuster. Some ideas—bad ideas—should obviously not make it out of the Senate, even if they have majority support. The Vietnam War had majority support, as did the prohibition of alcohol, but in retrospect, most people side with the minorities that fought against those ideas. However much one respects minority power, given the filibuster’s increased use by both parties over the past two presidential administrations and increased calls for its elimination, a brief look at this once esoteric parliamentary quirk is in order.
“Cloture motions” are a move to end a filibuster. The number of motions reflects the amount of filibusters occurring in a given Congress. The first motion in the U.S. occurred to end a filibuster on the Treaty of Versailles. As the chart makes apparent, filibusters have become more common in recent years. Source: U.S. Senate
The most famous uses of the filibuster have been somewhat theatrical, the so-called “talking filibuster.” Readers may recall the beloved movie, Mr. Smith Goes to Washington, where the titular rube becomes a senator, takes to the floor, and speaks nonstop to block a poisonous bill that would have gone forward otherwise. In reality, the filibuster has a much less wholesome history. In 1957, Senator Strom Thurmond filibustered the Civil Rights Act of 1957 for over 24 hours. Thurmond was a virulent racist, and he used the only means he had to try to block legislation aimed at protecting the rights of minorities. His attempt failed and the bill passed, but his filibuster has remained the longest talking filibuster by a lone senator to this day.
In recent years, a few senators have embraced this theatrical approach to the filibuster. Senator Rand Paul spoke for almost 13 hours to block the nomination of John Brennan to head the CIA. Although Brennan went on to head the CIA, Paul’s filibuster drew attention to his problems with President Obama’s drone warfare campaign. Several senators joined Paul, and a majority of the public supported him, according to Gallup. Senator Ted Cruz, another darling of the Tea Party movement, stood later that same year to criticize Obamacare. However, Cruz’s filibuster was entirely theatrical, as the parliamentary requirements for a true filibuster were not in place. Cruz did not hold up any vote and ended his speech an hour before a scheduled vote commenced. In many instances, the talking filibuster has been a public relations prop, an effective tool at getting one’s message out, but legislatively inconsequential.
No, the real power of the filibuster in recent decades has come from a much less theatrical application. One senator’s threat to filibuster has been enough to stop legislation in its tracks. Threatening to filibuster has become a routine practice. During President George W. Bush’s administration, in the years when the Republicans held a majority in the senate, Democrats began increasingly invoking threats to filibuster as a way to block republican legislation. Once the Democrats won a majority in the senate, Republicans used filibuster threats even more than the Democrats had. After Obama ascended to the White House and buttressed Democratic majorities along with him, Republicans in the Senate relied on filibuster threats as practically their only way of holding up legislation that would otherwise have passed easily. They did this so much that the passage of virtually any legislation required a filibuster-proof majority of 60 votes.
When Obama won his first term as president, Democrats actually did well enough to hold 60 seats, thanks to the defection of Senator Arlen Specter and the surreal victory of legendary SNL comedian turned politician, Al Franken. But the Democrats held this power only for a brief period. The death of Senator Ted Kennedy led to a special election in Massachusetts between Republican Scott Brown and the remarkably unelectable Democrat Martha Coakley. Brown won, and that meant Republicans held 41 seats. Such a number was a small minority by Senate standards, but in the era of routine filibuster threats, any number above 40 has come with decisive power. Democrats, under the leadership of then majority leader, Senator Harry Reid, eventually invoked the so-called “nuclear-option” to change Senate rules over monolithic Republican opposition. The nuclear option, a controversial parliamentary procedure that overrules filibusters, allowed a basic majority of the Senate to make it so the filibuster could no longer block most presidential nominees except Supreme Court nominations.
Republicans bemoaned this move, but in the brief time since they have held a majority of seats in the Senate, nothing has changed with regard to the filibuster. Of course, Democrats, who for years faced a Republican minority and criticized the Republican filibuster threats, have used it at every turn. The new Senate’s first major controversies have been approval of the Keystone XL pipeline, funding for the Department of Homeland Security as a way to block the Obama Administration’s protections for undocumented immigrants, and at least for the time being, most Democrats have also split with Republicans on increasing sanctions on Iran. On all of these issues, Democrats have invoked filibuster threats to slow or block Republican legislative efforts.
That catches us up to the present. Republicans who once okayed the casual use of the filibuster when their party held a minority of seats now criticize the Democrats for doing the same with their minority. Charles Krauthammer, perhaps the leading conservative pundit, has now gone so far as to call for the complete elimination of the filibuster. In the early days of the new Senate, there was some brief talk about reforming the process further, but that appears to have gone nowhere. The day could come soon when the majority party in the Senate chooses to curtail the filibuster further, if not eliminate it.
One thing to bear in mind is that with or without the filibuster, both houses of the U.S. Congress are remarkably unpopular, making countless autocracies across the globe look beloved in comparison. Both houses of congress, including the House of Representatives, which has no filibuster, have been unproductive in recent years, with the exception of the end of the Bush Administration and the beginning of Obama’s. The modern day Congress is indeed where ideas go to die, where election promises become floor speeches, doomed bills, and rarely anything else. Is the filibuster a culprit or does it protect minority opinion in an already broken system? Opinions vary, but the filibuster may only be one reason why Congress does function. There are about 535 other reasons for dysfunction as well.
