We Would Miss the Filibuster
In the beginning, debate in both houses of Congress was unlimited. Eventually, the growing House created limits on debate, but the smaller Senate still allows unlimited debate on most issues, subject to a vote of cloture, which today requires three fifths of sitting senators.
Over the years, senators have used their privilege to speak without end to stall legislation. Because the majority can change the Senate rules, and the minority is most likely to use the filibuster, the temptation for the majority to kill the beast is tremendous. But unlimited debate survives; apparently, both parties want it to be there when they need it. Still, for the filibuster to be worth keeping, the cost to the majority of permitting it today cannot be greater than the benefit of having it tomorrow. In that particular calculus, raising the cost to the minority of mounting filibusters reduces the cost to the majority of permitting them, but it also lowers the value of saving the device for future use. As a result, there is no clear advantage for the majority, as such, to change the rule. At least, there wasn’t, until Mitch used it to break the government and make “What the hell have you got to lose?” a viable campaign meme.
The filibuster rule has two key elements: who can vote cloture and what happens while debate continues. Before 1970, while a filibuster was ongoing, all other senate business was suspended. Thanks to this “one-track” rule, if a small minority gummed up the works over their pet peeve, they paid a political price for their petulance. In those days, cloture could be voted by two-thirds of senators present and voting. Under that rule, many of the senators who supported the filibuster needed to be physically present in case a cloture vote was called. If fewer than twenty-six such senators were present, a simple majority of sitting senators (the amount needed for a quorum) would constitute at least two-thirds of those present and so would be sufficient to end debate.
In 1970, the Democrats ended the one-track rule. Under the new “two-track” rule, other Senate business could proceed while a filibuster was in progress. The change may have seemed to the majority like the best way to get on with its business, but the result was that the political cost of mounting a filibuster went down, making the filibuster rule itself more costly to the majority. With the political cost lowered, minorities immediately began ramping up the number of filibusters.
Things got worse in 1975. In a further effort to weaken the filibuster (perhaps because the two-track rule had bred so many of them), a bi-partisan majority sought to change the cloture requirement from two-thirds of senators voting to three-fifths of senators voting. Southern Democrats opposed the change. After some parliamentary wrangling, the resulting “compromise” gave the anti-filibuster forces the most Pyrrhic of victories: three-fifths of the sitting senators would be required for cloture. Thus, the maximum number of votes required for cloture was reduced, but those opposing cloture did not need to be present for the vote. Thus, debate would continue until sixty senators said “stop,” even if no supporter of the filibuster (not even a speaker) was present. Thus emerged the “virtual” filibuster, one with no cost at all to the party undertaking it.
With nothing to lose, the minority, regardless of party, started using the filibuster so routinely that Senate action is now understood to require sixty votes. Bad as that outcome might seem, one can at least imagine a world in which virtual filibusters produce compromise rather than dysfunction. But we don’t live in that world. In 2010, the Republican minority started using filibusters to obstruct achievements and, especially, appointments, rather than to extract concessions. The virtual filibuster did not produce compromise; it produced gridlock, because McConnell understood that a feckless Congress would be blamed on the incumbent President. Has anyone ever lost an election by underestimating the American electorate?
I believe that the “secret sauce” that made the filibuster workable was the political cost of using it. Restoring that cost thus seems like the best solution to filibuster abuse. But, for reasons that may have made sense inside the beltway, but look like sheer stupidity to me outside it, Harry Reid responded to McConnell’s obstruction not by raising the cost of filibustering, but by simply changing the cloture requirement for the appointments that McConnell was blocking. That may have seemed like a commendably “minimalist” approach, but it gave McConnell the excuse (as if anyone takes seriously anything he says about policy) to apply the same new cloture rule to SCOTUS appointments.
In my view, Trump became President because Congress had an approval rating below twenty percent in 2016. Trump’s election was not as big a surprise to me as his nomination. Only a deep disrespect for politicians generally, brought about, I submit, by GOP obstructionism in Congress, can explain Trump’s besting the serious politicians in the Republican field. Mitch McConnell rendered Congress braindead, so, a lot of people were prepared to “try something new,” which Trump surely was.
Now, at least, the Democrats are talking about filibuster reform if they get control of the Senate. But the preference for the filibuster should be party-neutral. Whichever party has the majority should want a filibuster rule that will serve it well when it becomes the minority, unless it is planning a coup and does not expect ever to be in the minority again. More important, we, the People should want a filibuster rule that constrains the tyranny of the majority without creating a tyranny of the minority. In other words, we need the pre-1970 filibuster, with all of its inconveniences and costs.
Oregon Sen. Jeff Merkley (D., OR) has been a leading advocate of filibuster reform. He has a plan that would force a filibustering Senator actually to take the floor and speak. If there is no senator actually speaking in opposition, a majority vote would be sufficient to end debate. I am skeptical that requiring filibustering Senators to speak is enough. The Senate’s rules are full of ways to extend debate, via holds or amendments, or other parliamentary procedures beyond my meager knowledge. Any new rule should be “gamed” out, understood in terms of the costs and benefits of mounting a filibuster.
Whatever rule is adopted, it should not be written in stone. It won’t take long for the result of any change to be seen. If minorities use the filibuster to obstruct rather than force compromise, the filibuster rule is ipso facto bad policy. One hopes that no candidate in 2024 gets to run against a “do-nothing” Congress broken by a stop-everything minority. We actually need Congress to get some things done, so putting the filibuster genie back in the box should be a high priority for the next Senate Majority Leader.