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…
