The Twisted Tale of the Filibuster
… and a moderately happy ending
Don’t just nuke the filibuster; replace it with something better. Simply removing it just invites an unequal but opposite reaction from Republicans.
The Obvious but Often-Overlooked Caveat:
If, as the majority, you make rule changes affecting the minority, you will have to live with them yourself when the Senate changes hands.
The Real Question is How Should the Minority be Treated?
Step back and take a broader look at the issue. What should a minority be able to do? What should they not be able to do? I will argue the following:
- On the one hand, the minority should be able to force consideration of their positions, offer relevant amendments, and delay approval of bills to allow time for debate and possible compromise on proposals put forward by the majority.
- On the other hand, they should not be able to permanently block bills the majority supports.
Is this even feasible anymore?
First, a little research: birth of the filibuster
Originally, both the Senate and the House of Representatives had a rule called the Previous Question Motion, where a simple majority ended debate — a rule the House has kept. But the Senate dropped this provision in 1806, leaving open the potential for a filibuster.— Kristi Oloffson, TIME
Actually, dropping the rule was not part of any carefully-crafted strategy to undermine majority rule; it was an accident.
In fact, the filibuster was not “designed” at all. It was created by accident, part of a sloppy revision of the Senate rule book by [Vice President] Aaron Burr. … In a careless effort to remove what he thought was redundant language, he cut the “previous question motion,” which would have allowed a majority of lawmakers to end debate and force a vote on a bill. — David Litt, The Atlantic
By a strange twist of fate, thus was the filibuster born.
Burr's unrecorded second thought:“Next time, before throwing out something existing consider:
Why it is there in the first place?
Why did its creator(s) think it was necessary, or a good idea?
Check to see if it still is.”
At first no one seems to have noticed that an endless debate might be a useful tool — the initial filibuster was thirty years later, in 1837.
Then Southern politicians began to use it to delay Reconstruction after the Civil War.
When isolationist senators used it to oppose entry into World War I, the Senate finally adopted a way to stop a debate in 1917 — the “cloture”
rule, which required a two-thirds majority (67) to pass. However, that proved to be ineffective at curbing the filibuster, which could bring all Senate business to a screeching halt while the long process of cloture played out.
Before and during the Civil Rights Era, Southern segregationists — notably South Carolina Senator Strom Thurmond — used the filibuster to block anti-lynching legislation and anti-poll tax legislation, and to delay the Civil Rights Acts of 1957, 1960, and 1964.
Outrage over these obstructions continued to build, but what could be done?
Mere threat becomes sufficient, or “Kill Bill 3”
In 1974, the cloture rule was modified to require only a three-fifths majority (just 60 votes) to pass. Good news, right? …
Well, yes … but, in a surprising plot twist, a similar attempt to limit the filibuster went spectacularly wrong:
Another consequential change in the mid-1970s was adoption of the “two-track” policy, which functionally eliminated the “talking filibuster.” Before this rule change, senators were required to hold the floor to execute a filibuster, blocking all Senate business until a cloture vote could be held.
To better utilize time [i.e., to get around the filibuster] the new rule established the dual-tracking system, allowing the Senate to work on multiple bills at once. Any bill being filibustered would move to a “back burner” until a cloture vote could be held, while the Senate focused on other bills instead. This change made it easier for a minority to kill a bill by simply indicating a desire to filibuster, thus blocking it before it ever can reach the Senate floor. [emphasis mine] — Mira Ortegon and Colleen Olsen
Essentially, senators no longer had to actually execute a filibuster, just threaten to do so. As Dana Carvey’s Church Lady might say, “How conveenient!”
It gets worse. This change to a two-track system, intended to circumvent the filibuster, instead meant that,
… no one observing the Senate would likely realize that a bill was being filibustered, since no one had to take the floor and stay there. This significantly reduced the public relations disincentive to filibuster and made it practically invisible to the public and the media. The talking filibuster had died; all a senator needed to do was indicate an intention to filibuster in order to move a bill to the end of the queue or “the back burner.” —Caroline Fredrickson
It is the two-track system, not the cloture process, that has made the filibuster the 60-vote blast wall that it is now.
Rule of Thumb: Making something even a little easier or less costly can have major side effects.Rule of Other Thumb: Making something even a little harder or more costly can also have major side effects.It's not easy to predict a tipping point.
If you want filibusters à la Jimmy Stewart in Mr. Smith Goes to Washington (1939), you can’t do it without a return to the single-track Senate (at least temporarily).
But the Senate has run on a two-track system for almost 50 years now. Is it likely that they will scrap it now, even temporarily? And would that be wise? The Senate has a pretty full plate.
What is this ”two-track” system anyway?
After a series of filibusters in the 1960s over civil rights legislation, the Senate put a “two-track system” into place in 1970 under the leadership of Democratic Majority Leader Mike Mansfield and Democratic Majority Whip Robert Byrd.
… Tracking allows the majority leader — with unanimous consent or the agreement of the minority leader — to have more than one main motion pending on the floor as unfinished business. Under the two-track system, the Senate can have two or more pieces of legislation or nominations pending on the floor simultaneously by designating specific periods during the day when each one will be considered. [emphasis mine]— Wikipedia
Curiously — if I’m reading the above correctly — tracking is optional, and either the majority or the minority can prevent it. The majority leader doesn’t have to ask for tracking and the minority could block it — if they wanted to. In either case the Senate (or the bill) would presumably revert to a single-track system and the “working filibuster” would be back in action, fully visible to the public.
Why didn’t they? Because the situation had benefits for both sides.
- The majority’s point of view: It was a way to prevent a filibuster from halting all Senate business
- The minority’s point of view: It was a way to filibuster a bill with less effort, and less public scrutiny
Congressman Jack Kemp, nine-term Republican representative from New York, quoted Democratic Majority Whip Byrd, describing the new system:
Mr. Byrd calls it a “casual, gentlemanly, good-guy filibuster. … Everybody goes home and gets a good night’s sleep, and everybody protects everybody else.” [source]
Protects them from whom? their constituents?That lasted until the mid-1990s …
And now, however, the “gentlemen’s agreement” has clearly broken down, undermined by increasingly unprincipled and unscrupulous Republican leadership (notably Newt Gingrich and Mitch McConnell) to the point where it is just too tempting for the minority to use the threat of filibuster any time they feel like it.
And so here we are.
The filibuster is a mess. It’s good theater and a moving demonstration of dedication to one’s position, but it’s no substitute for an actual in-the-public-eye debate reaching a resolution.
- It was a mistake in the first place, and attempts to correct it have only made it worse.
- It has been said to stimulate debate and negotiation on a bill, but instead the “back burner” filibuster just kills the bill.
- It is poorly suited to be a protection for the minority, and it’s been twisted into a simple and easy block of the majority — what Jack Kemp called “obstructionism on the cheap.” [source]
- The filibuster is irredeemable. It cannot be fixed without reverting to a “single-track” Senate. As long as there is a “back burner” to move a filibuster to, the minority has no incentive to negotiate or compromise in order to bring it to a close.
The minority should not be in charge — that’s why we have elections to determine the majority.
Don’t just remove the filibuster. Replace it with something better.
The path forward toward a moderately happy ending
Senators, learn the lessons of history … and make the effort to develop a purpose-built protection of the minority’s ability to contribute to the Senate in return for eliminating the filibuster — thereby allowing the elected majority to do its job.
“… there are myriad ways to give the minority greater opportunity to participate without enabling obstruction. The most effective mechanism would be limitations on ‘filling the tree,’ the main tactic used to block the minority from offering amendments. Such a reform would go much further to enable the minority to be heard than the filibuster, which has been used more as a tool to stifle debate than to enhance it.” — Mira Ortegon and Colleen Olsen
It is long past time for an honest bipartisan discussion on changing Senate rules. If a package of Senate rule changes includes benefits for the minority (such as reserving some amendment slots for the minority) as well as benefits for the majority (such as removing the filibuster by reinstating the Previous Question Motion), those changes would be much more likely to pass with some minority support, and a lot less likely to be “cancelled” when the Senate changes hands.
