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The History and Future of the Filibuster

August 23, 2010 - by Hilary Worden

The filibuster has a long and controversial history. It’s been used (and, quite arguably, abused) by Senators on both sides of the aisle since the time of the Whig Party. The only constant in its life is that its preservation tends to be supported by the minority and questioned by the majority, and the 111th Congress has not produced an exception to this rule. After a series of Republican filibusters blocking their legislation, some Democrats are suggesting changes to Senate rules to eliminate or restrict the filibuster.

While the House has kept a rule allowing debate to be ended by a simple majority vote, the Senate dropped the rule in 1806, allowing determined Senators to hold up bills for as long as they could hold the floor. The rules governing filibusters have been modified many times since then, more often than not in the direction of making them more difficult to maintain. In the 1800s, the only response to a filibuster was a threat to change Senate rules, because unanimous consent was required to end debate. When Republican filibusters killed a 1915 ship-purchase bill and a 1917 bill to arm merchant ships, however, President Woodrow Wilson called for change, and “Rule 22” was adopted. The rule provided for cloture, which allowed debate to be terminated if two-thirds of the Senators present voted in favor. In 1949, the rule was changed to require a favorable vote by at least two-thirds the Senate membership (regardless of how many were present).

Later decades saw numerous filibusters against civil rights legislation (including Strom Thurmond’s 24-hour filibuster in 1957) by Southern Democrats, prompting liberal Democrats to suggest further restriction of the filibuster. A bipartisan group eventually succeeded in reverting the cloture rule to its previous form and requiring a vote of only two-thirds the Senators present, and another rule change in 1975 further reduced the threshold for cloture to three-fifths the Senate membership (the 60 votes still required today). This resulted in the rise of the “post-cloture filibuster”, in which Senators delayed bills by asking that amendments be read aloud, requesting quorum calls and roll-call votes, objecting to routine motions, and other tactics. In response, postcloture delay was limited to 100 hours in 1979, and further reduced to 30 hours in the 1980s.

Despite the new rules, the use of the filibuster has increased dramatically in recent years: while only eight percent of major bills in the 1960s faced filibusters or threats thereof, seventy percent did in the last decade. This has been attributed to a number of factors:

  • A practice known as double-tracking, begun in the 1970s by Sen. Robert Byrd, allows a filibustered bill to be temporarily shelved while the Senate proceeds with other business. This allows Senators to filibuster a bill without holding up the entire Senate, and means that a bill can be delayed for far longer than a Senator could continuously hold the floor.
  • Today’s parties are more unified, and thus more likely to defeat cloture.
  • Senators see potential for political gain in blocking legislation that their party’s base opposes.
  • More issues come before the Senate, making the limited time of each session more valuable. Filibusterers may hope that the majority will give up on a bill in order to spend the time passing other legislation.
  • Filibusters are easier now than in the past: filibusters used to be a test of endurance because Senators had to actually stay on the floor and continue to speak; modern filibusters are really just threats to filibuster.

Both parties contributed to the rise of filibusters in the 1990s and 2000s. As the minority party in 1993 and 1994, Republicans filibustered on numerous occasions, leading Democrats of that time to call for reform as well, though they did not succeed. Even when the GOP gained the majority, some Republicans continued to use the filibuster and other obstruction techniques against Clinton’s judicial nominations.

Later, Democrats followed suit and filibustered a number of Bush’s nominations. In response, Bill Frist threatened to use what has become known as the “nuclear option” to get the nominees confirmed, but a compromise arranged by the “Gang of 14” (seven Democrats who agreed to only support a filibuster in “extraordinary circumstances” and seven Republicans who agreed to oppose the nuclear option) prevented the situation from coming to that.

Republicans of the current Congress have filibustered a wide variety of bills, including a small-business bill, state-aid package, and the Disclose Act. Hoping to prevent the 112th Congress from facing the same delays, many Democrats (including Harry Reid [D-NV] and Dick Durbin [D-IL]) have voiced support for filibuster reform, though many others disagree.

A vote on cloture for a rules change needs 67 votes to pass, meaning a change in the immediate future is extremely improbable. However, Democrats argue that a simple majority can determine Senate rules at the start of a session, so the issue is likely to resurface in January. The fate of the filibuster may be in the hands of the Senators elected this November.

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