Filibuster Reform is More Critical Than Ever, and the 2013 Senate Must Address it Immediately

For the Senate Majority Leader to bring a bill to the floor for debate requires a motion to proceed. Usually this is done by unanimous consent. However, in recent years, there has been an increase in the number of cloture motions filed on motions to proceed, preventing major legislation from being debated and voted on. This practice must stop. It’s time to change Senate rules and remove this impediment to good government.

The filibuster has been a mainstay in the Senate since 1806 when the Senate agreed with a proposal made by Aaron Burr in 1789 that the motion to “move the previous question” was redundant and struck the motion. It wasn’t until 31 years later, 1837, that the filibuster was used for the first time. It took another 80 years, 1917 for the Senate to create the rule of cloture, a two-thirds vote to end debate. (changed in 1975 to three-fifths).

The filibuster is an effective tool, recognizing the minority’s role in governing. It has been used to block major legislation as well as approval of presidential appointees. Senators used to have to hold the floor and talk to keep debate going until cloture was invoked. Strom Thurmond, a Senator from North Carolina from 1954 – 2003 holds the record for the longest filibuster, 24 hours 8 minutes, set in 1957 on the voting rights act.

Senate rules also allow for any senator to put a hold on legislation by notifying their party’s leader of such intent. The senator placing a hold does not need to be identified. Unless the senator removes the hold, the legislation can only move forward by the invoking of cloture. Holds have increased in popularity since the 1970s. That brings us to where we are today.

From 1917 – 1970 there were a total of 59 cloture motions filed, just over one per year. Cloture was invoked on eight. From 1971 – 2012 there have been 1,319 cloture motions filed or 32 per year. Cloture has been invoked on 426 of those motions. Approximately 40% of these cloture votes have been on motions to proceed. If we look at the 118 cloture motions filled during the 112th Congress, 31 or 26% have been on motions to proceed, Cloture was invoked on 15.

Proponents for allowing cloture on motions to proceed argue it allows the minority party to either secure the right to amend the bill during debate or amend the bill prior to debate. Opponents say it slows the legislative process, preventing the Senate from doing its job. Given the current state of gridlock, the lack of bills passed, and the public’s opinion of Congress, what’s wrong with allowing bills to come to the floor for debate? A filibuster can still be initiated during debate if amendments are not allowed or there are other objections from the minority.

Senate Majority Leader Harry Reid (D-Nevada) has stated he will act to change the filibuster rule at the start of the 113th Congress. The changes he is proposing are included in the No Labels Make Congress Work Action Plan. The rule change would stop filibuster on motions to proceed and return the requirement that a senator be present and hold the floor. Senate rules require a two-thirds vote of those present and voting to change a rule. However, Article 1 of the Constitution implies only votes by a simple majority are required. In the discussion of filibuster, this has been referred to as the Nuclear or Constitutional option. Senator Reid has suggested he will use this option to pass the change to the rules if necessary.

Americas are frustrated with the hyper-partisanship in Congress. Republicans should remember they may return to the majority and if that happens, the Democrats will revert to the same use of cloture and filibuster. It’s time to allow all bills to come to the floor for debate. If the minority cannot add amendments, they can filibuster so long as they hold the floor. Ending filibuster on motions to proceed and ending holds to initiate the filibuster is a logical and simple step to take.