Filibuster 2.0: How 41 Senators Control The Country Without Actually Filibustering

January 25, 2010 9:40 a.m.

When Republican Scott Brown won the special election for Ted Kennedy’s old senate seat last week, the GOP rejoiced and Democrats fretted about the legislative implications of losing their filibuster-proof, 60-seat supermajority. With their advantage whittled to 59-41 — still a huge advantage, at least in the context of history — Democrats wondered whether they could pass their signature health care reform package. Some media outlets even declared that Democrats had lost their majority (they hadn’t).

Sure, in recent years, threats of filibuster have become more and more common — and getting 60 votes for key pieces of legislation has seemed to become evermore necessary. But at the same time, we rarely actually see senators filibustering, at least not like Jimmy Stewart’s character did in Mr. Smith Goes To Washington. Why?

The reason has less to do with the Senate’s rules than it does with the chamber’s evolving customs and increasingly partisan nature, Senate historian Donald A. Ritchie told me this morning. As the Senate became more deeply divided along partisan lines in recent decades, its leaders — from Democrats Mike Mansfield and Robert Byrd to Republicans Bob Dole and Bill Frist — informally adopted the custom of no longer actually filibustering — mainly, Ritchie said, because filibustering was seen as a waste of time that only provided the filibustering minority an excess of attention.

Filibusters have essentially been around as long as the Senate. Although the term ‘filibuster’ wasn’t used to describe the practice until the 1840s, Ritchie notes that there are historical references from the very first Congress to members trying to “talk a bill to death.”

There was no formal mechanism for squelching filibusters until 1917, when isolationist senators filibustered a proposal to arm U.S. merchant ships against submarines as America prepared to enter World War I. Furious, President Woodrow Wilson called the Senate back into special session and demanded the establishment of a formal mechanism to curtail debate. The Senate passed cloture rules that allowed filibusters to be ended with a two-thirds vote (that’s 67 out of 100 senators).

That rule stood for nearly 60 years, during which time filibusters were typically employed only by southern senators trying to obstruct civil rights legislation. The longest filibuster in U.S. history lasted 57 days, as southern senators tried to block the Civil Rights Act.

Cloture was rarely filed in those years, Ritchie said, mostly because a two-thirds majority was very hard to reach.

Riding high after their victory in the 1974 midterm elections, many Democrats tried to lower the cloture bar. Some wanted to change cloture requirements so that a simple majority could overcome a filibuster, Ritchie said. Others worried that they didn’t want to weaken filibusters too much, and eventually a consensus was reached on 60 votes for cloture.

In the decades that followed, Ritchie said, majority leaders from both parties began filing for cloture more and more frequently — largely as a way to gauge whether they had 60 votes for a bill before they expended time and effort on it on the Senate floor. Often, they wouldn’t even bother bringing key pieces of legislation to the floor unless they knew they had 60 votes in the bank.

And majority leaders typically wouldn’t even want members of the minority to filibuster, Ritchie explained. Why give them that platform?

“Senators like to talk, actually,” Ritchie said. “And it’s not really a punishment to make them talk. Especially with television in the chamber.”

Plus, Ritchie said, several majority leaders believed that these “all-night talk-a-thons weren’t doing anybody any good.” They not only wore down the minority, but the majority too. And they had the potential to dominate an already crowded Senate calendar.

Filibusters aren’t exactly difficult to keep rolling, either. As Ryan Grim pointed out last year, Majority Leader Harry Reid’s office has studied the issue and concluded that a filibustering senator “can be forced to sit on the [Senate] floor to keep us from voting on that legislation for a finite period of time according to existing rules but he/she can’t be forced to keep talking for an indefinite period of time.” And only one Republican at a time would have to monitor the Senate floor. The rest, it seems, could all go on vacation while a lone member of the minority sat there “filibustering” quietly.

The result is a culture in the Senate where cloture motions are used as a test by the majority of whether they even have the necessary support to overcome the threat of a filibuster, but not as a method of actually trumping a filibuster — which rarely happen, at least not the way we typically think of them.

Perhaps unsurprisingly, the incidence of cloture motions has increased dramatically since the measure was introduced nine decades ago — from just two cloture motions filed in the 66th Congress in 1919-1920 to 23 cloture filings in the 92nd Congress from 1971-1972 to 139 cloture filings in the 110th Congress from 2007-2008.

Ritchie also points out that the Senate debate on health care last month was “as close to an old-fashioned filibuster as you can have,” with senators in the chambers seven days a week for a month, voting at all hours of the day.

But as for Mr. Smith-style filibusters? That’s just “a political parliamentary tactic” that went out of style and common use a long time ago, Ritchie said, mostly because majority leaders realized that “they don’t win by letting the minority talk forever.”

Could the rules ever change so that fewer votes were required for cloture?

Ritchie says that would require at least a two-thirds vote — rendering any change to the cloture threshold very unlikely.

“It’s essentially gonna require the minority party to give up some of its power,” he said. “And I don’t see any minority party doing that voluntarily.”

Late Update: As one of our readers points out, it would indeed be possible to amend the Senate’s cloture rules without a two-thirds vote. But as Ritchie notes, it would require the vice president to make “some drastic rulings” that “would change the whole nature of the institution.” And so far, neither party seems to have the stomach for that.

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