Don’t Blame the Filibuster

January 8th, 2010 at 3:01 pm | 11 Comments |

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Pleas for Congressional “bi-partisanship”  flood the media marketplace.  Esteemed columnists and think tank analysts call for more bi-partisan agreement on major issues.

Many of these fervent calls identify the need for 60 votes to pass most major bills in the Senate as emblematic of the parliamentary gimmicks that have  clogged Congress’ legislative agenda.

Yet, tadalafil a review of the history of extended debate (the “filibuster” in common parlance) and efforts to contain such debate indicate that the Senate has gradually tightened its restrictions on filibuster.  This history stands despite the greatly expanded use of the filibuster as a routine parliamentary maneuver in the Senate.

When the Senate first convened, sildenafil no restrictions on extended debate existed.  “Cloture,” the formal name for ending a filibuster, was part of a Senate rules change in the early 20th Century.  The Senate rules at the time required two-thirds of Senators “present and voting” to vote to cut off debate on an issue.  If all Senators voted, it would take 67 aye votes to stop a filibuster.

In the 1970s, the Senate again tightened its rules against the filibuster.  The two-thirds requirement was dropped.  In its place the Senate voted that it would take 60 aye votes of Senators “chosen and sworn” to cut off debate.  As a sweetener, the Senate agreed to allow 30 hours of “post-cloture” debate to those engaged in the filibuster.

Should the Senate act once again to make extended debate more difficult?  If so, what reforms might really work to accomplish what the reformers seem to  want — more legislation passed more quickly,  less antagonism among Senators and between the two parties. And is the cloture 60-vote requirement the problem?

Both reform impulses seem to run counter to the notion of the Senate as  the saucer that cools the spilt milk.  In the House of Representatives, the Rules Committee issues the terms and conditions of debate on issues that are to come to the House floor.  That Committee almost always is chosen from among those Members who are most reliably supporters of their party’s leadership.  Thus, free and open debate, without restriction, has become extremely rare in the House.  In short, if you have a majority, you can do what you wish.  That’s how the hot milk found itself in the saucer.

Thomas Jefferson warned more than 200 years ago, “Great innovations should not be forced on a slender majority.”  If that notion still rings true, and I believe it does, then the 60-vote requirement to pass major legislation in the Senate makes eminent sense.

In a further contrarian mode, I believe it is not parliamentary procedure, including the 60-vote requirement, that has clogged the legislative arteries.  Indeed, it is the power of the caucuses of both parties in the Senate that causes an excess of “bad legislative chloresterol.”  The demands of the caucus, playing as they do on the age-old almost tribal question of “are you with us or them, “ constrain bi-partisanship much more than Senate rules.

The Senate cannot keep a Senator from entering the Chamber and voting.  But, party caucuses can, and have, ostracized their maverick members from the important Tuesday policy luncheons within which legislative strategy often solidifies.  While some leeway is accorded members who may face difficult re-election races, that leeway is not absolute.  On some issues, the caucuses simply demand that its members vote “with the leadership” despite any electoral pain it might cause a Member — and, notwithstanding any legitimate policy objections a Member might have.

Thus, Senate  Majority Leader Harry Reid found his most intractable  problems during the healthcare reform debate within his own party caucus, not with the 40 Republican Members of the Senate.  Those who “erred” from the party line have been given many labels, many of them not fit for a family publication, both publicly and privately.  To most outside observers, it seemed inconceivable that the 60 Democrats couldn’t pass fairly easily the healthcare reform bill.  To insiders, those who have worked on Senate staff and have had to field the thousands of emails, letters, phone calls, and visits by angry constituents, such a dilemma seemed inevitable.  Cloture had nothing to do with the problem — demands for absolute party line behavior caused it.

I know of no solution to that strong and primal appeal to “loyalty” to the group, to the “us or them” instinct.

To get back to the cloture, 60-vote question, one signal bill in 2005 shows how to get bi-partisanship AND avoid cloture.  In 2005 the House and Senate passed major energy bills.  In large part passage came in the Senate because of the personal courage of then-Minority Member Sen. Jeff Bingaman and then-Chairman Sen. Pete Domenici.  They started with a talk between the two of them.  They then went back to their Energy Committee colleagues and persuaded a bi-partisan majority.  They then briefed their leadership on the proposed document.  The left in the Democratic Party and the right in the Republican Party had strong objections.  But, Domenici and Bingaman, by starting apart from party platforms or caucus demands, and working outward were able to pass a major bill.  They achieved the same result with the Energy Policy Act of 2007, this time with Bingaman as Chairman and Domenici as Ranking Minority Member.

All this came after a painful Senate spectacle in 2003, when, as Domenici admitted later, Republicans consciously barred true Democratic participation and tried to pass a Republican only energy bill.  Not incidentally, the 2003 effort could not get 60 votes and failed.

As we used to say in high school geometry, quod erat demonstrandum.  Restrict cloture further and undermine the Senate’s role as a calming legislative force.  Reduce the power of the caucuses and get more bi-partisan, broadly-supported policy.  Or, in the jargon of the day, bottom-up legislation has a much better chance than top-down.

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11 Comments so far ↓

  • sinz54

    The real reason for the partisan rancor, is that the American people are electing partisans rather than statesmen.

    Here’s a chart showing the ideological distribution of Senators from the 1960s through today:

    You’ll notice that in the 1960s, we had some liberal Republican senators (like Ed Brooke), and some conservative Democratic senators (mostly Southerners).

    And you’ll notice that the last of the conservative Democrats, like Breaux, disappeared during the Bush Administration. Today, there is virtually no ideological overlap. There is not one liberal Republican, there is not one conservative Democrat. This ideological segregation makes it much harder to reach across the aisle–because nearly all these politicians got themselves elected on highly partisan platforms.

    It’s up to the American people. If they really do want “bipartisanship,” then they should vote for candidates who promise it. So far, they have shown no inclination to do that. The ideological segregation in the Senate and House mirrors the ideological segregation in the nation: More and more districts are so-called “landslide districts,” in which the representative always wins handily; fewer and fewer are swing districts that can go either way. Gerrymandering and the natural desire of people to live with people who think and act as they do, has produced this result.

  • balconesfault

    There is not one liberal Republican, there is not one conservative Democrat.

    I don’t think this is inherently unhealthy. There are certainly Republicans who have voted on the liberal side of some issues, and Democrats who have voted on the conservative side. I do think that using scorecards to judge conservative and liberal are often unhealthy, because they end up pigeonholing congressmen according to the bias of the scorekeeper, while implying some level of impartiality. They also don’t pay proper credence to the complexity of many issues – for example Ron Paul and Ron Wyden might both oppose the Iraq war, but for very different reasons. Bernie Sanders and John Cornyn might both have been disappointed with the Senate healthcare bill, but for very different reasons.

    Personally, I think the filibuster is too painless today.

    I think that there should be a different standard for a floor vote, and a filibuster. The floor vote should signal that you are opposed to a piece of legislation – the filibuster should signal that you fundamentally distrust the people who are proposing the bill, or the nominee who is being blocked, and thus you don’t believe that an honest vote on the legislation or nominee is possible because there is insufficient information available to your fellow Senators for a proper vote to be cast.

    I also think the filibuster has just become too easy. I think that when either side wants a filibuster, they should have to tie up the floor for a few days and slow or stop the business of the Senate. A cloture vote, followed by dropping the bill, seems too easy – those who oppose a bill that strongly should be committed to being on the floor day after day to keep the filibuster going.

    If I could make a procedural change, it would be to require that for a filibuster to continue, at any time there is a quorum on the Senate floor that those opposing cloture must have at least 30 Senators on the floor as well or the filibuster can be ended. Right now it is too easy for a minority party with 41 or more votes to stop progress – they can just keep one person on the floor at all times while the majority must keep at least 50 to keep a quorum going. Make it long and painful and bloody for all involved – that won’t end filibusters, but it will make them more serious.

  • sinz54

    balconesfault: I don’t think this is inherently unhealthy.
    Of course you don’t–right now.

    Because right now, the Dems are the majority party–so every additional conservative Democrat means a less progressive Dem agenda.

    Your post is another illustration of the prevailing attitude today: Bipartisanship is only for losers.

  • balconesfault

    Sinz – I don’t understand your point.

    In most cases, every additional conservative Democrat in many cases meant a Democrat in a seat which may have otherwise been held by a Republican. I do question why a politician would want to be affiliated with a party which he/she distrusted so much that they would filibuster that party’s agenda.

    I most certainly do not agree that “bipartisanship is only for losers”. I feel that the Republicans abstaining from bipartisanship on the healthcare bill produced a worse bill, undoubtably because of the pork barrel, but also because of the amount of money that will be channeled through the pockets of the insurance companies. Some level of serious participation by most of the Republicans could have improved things.

  • BoolaBoola


    Quite easily done!

  • BoolaBoola

    Oops. DEMONSTRANDUM. My error!

  • Marriehicks

    Really a educative and informative post, the post is good in all regards,I am glad to read this post.

  • BoolaBoola

    The filibuster DESERVES blame.

    Forty-one Senators from the twenty-one least populated states represent LESS THAN ONE-TENTH of USA population. The Founding Fathers did not intend for representatives of less than one-tenth of the people to be able to totally paralyze our government at will.

    Technically it’s constitutional because the Senate gets to set its own rules of debate (however goofy) but the filibuster is a terrible disaster. Even now with one party as strong as one party will ever be in our lifetime, the Senate is sclerotic, becalmed, nearly helpless; passing anything beyond routine keep-going measures requires huge pork-bribes and even then it’s nigh-impossible. After the elections when the balance levels off it will be utterly impossible to do anything if the Republicans continue in their current oppose-everything, kill-the-president-by-killing-the-country, pattern. Even if they don’t, we will need at least four or five of them to cooperate and act like grown-ups.

    I don’t know how we’re gonna fix this but if we don’t, we will be done for as a world power.

    For the record, I also opposed the filibuster when the Republicans had the Congress–I figgered let them do what they want and the voters will get mad at them that much sooner.

  • Moderate


    41 Senators could represent 41% of Americans or 4.1%; that’s beside the point. The Senate exists to represent the states, not the people.

    Also, opposing the filibuster is insane. There would be a ton of horrible legislation passed if it only required 51 senators. If they wanted to, Harry Reid or Mitch McConnell could force 50 of their guys to pass a bill legalizing incest.

  • Mandos

    Many countries (see Canada, Britain) have a simple majority requirement for the legislature, and they have not legalized incest. As ideological clarity/consistency continues to progress in American society, it is inevitable that a Parliamentary system will be a form increasingly suited to the needs of that society rather than the current form.

  • LFC

    Limited use of the filibuster can be a very reasonable (and as noted above “cooling”) thing, but the wholesale use it sees today was never envisioned when it was created. When the GOP lost control of the Senate, they tripled the use of the filibuster threat. From the leadership we see, I expect we will continue at that pace. And the result we’ll get? California. Apparently the GOP think that the government of that state is so efficient, they wish to export it to the entire country.

    Dear GOP: After failing to govern effectively for nearly a decade and for screwing up the economy, missing 9/11, blowing the war in Afghanistan, running off to and floundering in Iraq, institutionalizing torture as an American value, etc., thank you for using your minority role to do your best to make our country non-functional and ungovernable.