Filibuster Reform: A Simple Explanation Of Why It Failed in the Senate (Again)

An effort to change the Senate’s filibuster rule — which allows a minority of just 41 senators to effectively block legislative action on any bill or nomination in that house — has sadly come to naught. After straining hugely at real changes to the filibuster rule, senators basically agreed to leave the rule in place but change other Senate rules to make it easier to bring new legislation to the floor and to consider presidential nominees for important administration positions. Here’s a summary from the Atlantic of the formal changes:

" - Shorten debate following a cloture vote on the motion to proceed from 30 hours to four.

- Leave the ability to filibuster that cloture vote essentially intact.

- Allow the minority to offer two amendments on every bill.

- Shorten confirmation time for judicial nominees once cloture is invoked.

And two informal ones, which are to be executed without actually changing Senate rules:

- Senators will have to actually be on the floor to threaten a filibuster.

- Time allocated for debate will have to actually be spent on debate."

Designed in the late 1800s as a way to ensure full debate on matters before the Senate, the filibuster has become, in the past two sessions of Congress, a way for the minority party in the Senate to obstruct virtually all of President Obama’s agenda. UCLA professor Barbara Sinclair notes that while 8% of major legislation in the 1960s was subject to “extended-debate-related problems” like filibusters, 70% of major bills were so targeted during the 110th Congress covering the final two years of the Bush administration. The problem has remained severe during the Obama administration. The following chart, which tracks the number of times Senators attempted to invoke cloture to bring bills to a vote, shows how the use of filibusters, employed sparingly up through 1969 when Lyndon Johnson was president, has exploded in recent years: 

Important legislation President Obama sought that was filibustered to death in the past two sessions of Congress included:

- The DREAM Act, which would have provided a path to citizenship for undocumented immigrants who were children when they immigrated.

- The DISCLOSE  Act, which would have required corporations to disclose their political spending.

- A bill to permanently extend the Bush tax cuts for workers making less than $250,000. Barring further action, the bill would have let the high-income cuts expire.

- A bill that would have barred corporations from benefiting on deductions and/or credits due to outsourcing and from deferring payment of taxes on profit earned abroad.

- The American Jobs Act, which would have provided a 50% cut in the payroll tax for workers, and a similar cut for small businesses, as well as aid to states to pay teachers and other workers, infrastructure spending, unemployment benefit extensions, and incentives to hire unemployed workers, and more.

- Other filibustered legislation would have helped correct pay disparities between men and women, enabled collective bargaining for police and firefighters and provided $30 billion in funding for jobs for first responders. 

As the rule once stood, any senator could take the floor on a bill and then speak on the bill without any time limit (many may remember the way Jimmy Stewart filibustered a bad bill, speaking for days, until he was virtually a physical wreck in the movie Mr. Smith goes to Washington).

The best known real world filibuster took place in 1957 when Republican Senator Strom Thurmond of South Carolina set a filibuster record — 24 hours and 18 minutes — as part of a move that successfully blocked the Civil Rights Act of 1957. Today a senator doesn’t need to do that. All the senator must do is indicate a desire to speak on a bill and refuse to relinquish the floor. Unless the other side can muster 60 votes to close debate (the cloture rule), the bill is effectively filibustered to death.

Sick and tired of seeing bill after bill figuratively talked to death by the Republicans, as the 113th Congress went into session this month, Democrats in the Senate demanded changes that would allow all legislation to eventually come to a vote. The only way for the Democrats to do so without Republican agreement, though, with the Supreme Court decision of United States v. Ballin as precedent would be to invoke the so called “Nuclear Option,” allowing a simple majority of senators to eliminate the filibuster entirely thus allowing a simple majority of the Senate to end debate on any measure and call for a vote.

It is argued that the nuclear option could be a horror show because there is a host of ways other than the filibuster for minority party senators to block action on virtually everything the Senate does. Invoking such actions could bring Senate business to an indefinite standstill. I don’t know if that is worse than the current sort of standstill.

I sympathize with Democrats who want the filibuster rule to remain to enable them to block unpalatable legislation the next time the Democratic Party is in the minority in the Senate. But that’s what the ballot box should be for. We elect our Senators to act, not sit on their hands. If Congress passes stuff you don’t like, at the next election, throw the bums out.