Senate Filibuster Reform: The Real Nuclear Crisis Isn't Averted

With the help of Sen. John McCain (R-Ariz.), Senate Republicans managed to avert a total political meltdown on Tuesday. Crisis averted, right?

Wrong.

The Senate is still on the brink of nuclear disaster, and the threat stems from one source and one source only: The filibuster.

With all the recent media buzz about Sen. Majority Leader Harry Reid's (D-Nev.) "nuclear option," what most people don't realize is that there was hardly anything nuclear about Reid's threat in the first place. To borrow a line from John Oliver on a recent episode of The Daily Show, "Wait wait, hold on. So in this context, the nuclear option is just a simple change in parliamentary procedure? That is the world's worst Jerry Bruckheimer movie."

Rather than "kill the Senate," as Republicans bemoaned, Reid's contingency plan would have made a narrow change to Senate rules, lopping off the tip of the filibuster iceberg but leaving the rest to lurk below the surface.

The Senate's current filibuster rules have brought the gears of American government to a grinding halt. Need I remind you about the times congress dropped the ball on student loan rates, almost drove us off the fiscal cliff (which it created in the first place), and came inches from smashing America's skull into the debt ceiling (which is still a threat, by the way)?

As Ezra Klein wrote in the Washington Post at the end of Congress' last term, the 112th Congress "achieved nothing of note on housing, energy, stimulus, immigration, guns, tax reform, infrastructure, climate change or, really, anything."

Mutually Assured Destruction

The 113th Congress, which was gaveled into existence in January, hasn't exactly had a better track record. If anything, the current term has demonstrated that the filibuster, as wielded by the Republican minority in the Senate, is a true weapon of mass self-destruction.

Take the recent vote on the student loan bill, for example. On July 1, rates for federally subsidized student loans doubled from 3.4% to 6.8% percent because the Senate failed to meet a deadline that it had known about an entire year in advance

Why did it miss that deadline, despite the fact that a majority of senators were already in favor of a plan to keep the rate from spiking? Because a Republican filibuster increased the number of required votes from 51, the amount needed to pass the bill, to 60, the amount needed to needed to break the filibuster and bring the bill to a vote in the first place.

But wait, there's more! On July 10, after the deadline had already passed, a group of Democratic senators introduced a last-ditch worst-case-scenario bill that aimed to push the student loan rate back down to 3.4% percent and extend the deadline by one more year. That bill also gained enough votes to pass, but met its fate at the hands of a Republican filibuster.

See the problem here? Because the minority party has an arsenal of unlimited filibusters, it can hold the Senate majority hostage. As a result, no new laws get passed, and the American public loses.

Stuck In Traffic

There's nothing more frustrating than a traffic jam, and Americans are getting fed up with all the congressional congestion. A June 2013 Gallup poll found that nearly four in every five Americans are unhappy with the job Congress is doing.

What's more, "gridlock" was cited as the main reason for disapproval more than any other category, including the deficit, gun control, health care reform, immigration reform, taxes, personal integrity, or congressional accountability.

Just take a look at this chart, which shows just how little faith Americans have in Congress.


Image courtesy of the Washington Post.

You know you're in a bad place when Americans would rather hang out with Richard Nixon during the Watergate scandal and Paris Hilton over you. Worse, this chart was created by a Senator, which speaks volumes about the Senate's self-esteem.

But what's even more depressing is how few laws Congress has passed in recent years. The 112th Congress was the least productive Congress in history, passing only 240 bills that became law. To put that in perspective, the 80th Congress, which Harry Truman notoriously dubbed the "Do Nothing Congress," passed 906 bills that became law.


Image courtesy of the Washington Post.

What do you call doing a quarter of "nothing"?" Pathetic. 

But hey, at least Congress is more popular than Fidel Castro.

Don't Hate the Player, Hate the Game

Today's Senate is operating in a way that its original manufacturer never intended it to. If you read the instruction manual (a.k.a. the Senate Rules and Procedure), you'll find that a given measure is designed to pass with the support of a simple majority of 51 or more votes.

Alas, no one reads the instructions anymore — including our senators. As Eric Black points out in the Minneapolis Post, "When a senator informs the body that he wants to filibuster a particular bill or nomination, the matter generally disappears from the floor unless the majority thinks it can muster 60 votes to pass the bill."

What's more, the filibuster was never part of the original rules — our patented system of "checks and balances" — in the first place. The Constitution doesn't mention the filibuster. Instead, the procedure known as "filibustering" evolved only in the last half-century. Although the first real-live filibuster took place in the Senate in 1837, it wasn't until the 1960s that the tactic became regularly integrated into the Senate's day-to-day business.

One of the most notable filibusters in history took place in 1964, when Southern Democrats attempted to block the passage of Lyndon B. Johnson's Civil Rights Act. Senator Robert Byrd, who got into politics as a recruiter for the Klu Klux Klandelivered an address that lasted 14 hours and 13 minutes as part of an unsuccessful opposition filibuster that lasted 75 hours in total. Ultimately, the majority was able to muster enough votes to call "cloture" and pass the bill with 73 yea's and 27 nay's.

The concept of cloture, the process by which a super-majority breaks a filibuster and brings a given law to an immediate vote, is integral to understanding just how much the filibuster has impacted the way the Senate operates. Since 1917, 1,406 motions for cloture have been filed in the Senate. 1,348 of those motions were filed after 1970.

But those numbers don't do justice to the tremendous rise in cloture motions and the corresponding surge of filibusters. Between 1955 and 1961, Majority Leader Lyndon Johnson faced one filibuster. Since 2007, Majority Leader Harry Reid has faced more than 400


Image courtesy of healthreformtrends.com

As the above graph reveals, filibustering isn't a "Democratic" or a "Republican" strategy; it's the weapon of choice for the minority party in the Senate and it has been used by Democrats and Republicans in equal measure. Role reversal à la mode de Freaky Friday is par for the course in American two-party politics. As one side gains favor with the public, the other passes out of power and takes its turn on the sidelines.

This week, Democrat Senate Majority Leader Reid threatened Republican Senate Minority Leader Mitch McConnell (R-Ky.) with the dreaded "nuclear option". But in 2005, Reid and McConnell each had the other's position when Democrats under Reid threatened to filibuster George W. Bush's executive nominations, and McConnell whipped out the same exact "nuclear option."

Even if Reid and the Democrats had decided to go nuclear this week, little would have changed in the Senate. In essence, Reid's proposal would have allowed a simple majority, rather than the required 60 senators, to break a filibuster. The catch? The change would have applied only in the case of a filibuster blocking the confirmation of a presidential cabinet appointment.

Apparently, the prospect of Reid's rather modest nuclear contingency was enough to convince Senate Republicans to back down. But because Senators retain the ability to filibuster any and every other bill or motion, the true nuclear threat remains on the table.

The Solution: Keep Talking

The act of filibustering wasn't always so effortless. Before 1975, Senators had to physically occupy the Senate floor in what is known as a "talking filibuster." They were forced to make their case before their colleagues and constituents in order to stall legislation. 

The rationale behind the filibuster was simple. In order to ensure that minority opinions were heard by the Senate, senators could keep talking for as long as they wanted. When they felt they had gotten their point across, they could cede the floor, allowing debate to give way to a vote.

But in 1975, a Senate rule change allowed senators to declare a "virtual filibuster" in absentia. Under these rules any senator who wants to hold up a vote on a particular piece of legislation — for whatever reason — can simply let their floor leader know of their intention, instantaneously erecting a blockade 60 votes high.

It shouldn't be possible to pull the emergency brake on the world's biggest legislative engine simply by uttering four syllables. There should be consequences for anyone who dares to places themselves in the path of American political progress.

That's why we need a new nuclear option; one that packs a much bigger punch than Senator Reid's puny rule change. We need to nuke the virtual filibuster and put an end to partisan brinksmanship. It's time to go back to the days when good old-fashioned phone-book reading and monotonous yammering were the only way to stall the Senate.

It's time to revive the talking filibuster.

The talking filibuster is the true test of loyalty; it forces senators to show how much they care about a given issue by giving up their own physical comfort. During her recent 11-hour talking filibuster on the floor of the Texas Senate, Senator Wendy Davis had rely on the support of a back brace (unfortunately, Texas legislators took advantage of that fact to end Senator Davis' crusade on the grounds that she didn't "stand continually without assistance").

Sometimes, the pressure of filibustering can literally become too much to bear. After holding the U.S. Senate floor for nearly 13 hours, Senator Rand Paul (R-Ky.) ended his filibuster by saying, "I would try to go another 12 hours and try to break Strom Thurmond’s record, but there are some limits to filibustering and I am going to have to go take care of one of those here." In other words, Senator Paul had to pee.


Image courtesy of the Washington Post

In addition to serving as a physical endurance test, the talking filibuster acts as a measure of a senator's political will. It places the filibuster-er in the spotlight of the media, drawing the nation's attention to the issue being championed.

Senator Davis' stand started a national firestorm over abortion on Twitter and prompted pro-choice protests outside the Texas legislature building. Meanwhile, Senator Paul's filibuster gave rise to a national dialogue on the constitutionality of drone strikes and forced the Obama administration to clarify its position on the issue.

The problem with the virtual filibuster is that it often slips under the nation's radar. Senate filibusters rarely make for exciting news; they're often technical and dry, and they happen frequently. As a result, the media is reluctant to cover them, and the public is left in the dark. There's a reason why another term for virtual filibuster is "silent filibuster."

We Americans shouldn't be content to watch our legislators sit idly. They have a duty to keep the political dialogue moving, and so do we.

Consider this article my own little filibuster. I've made my stand, here, on this page. Now, I need your help to make sure that this issue reaches the public through the internet. My format may be virtual, but with your support, my message will never be silent.

Gabe Grand is an editorialist for PolicyMic. Share his article on Facebook, Twitter, or Google + and keep the discussion going!

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Gabriel Grand

Gabe is a Politics Fellow for PolicyMic and an incoming student at Harvard University. An avid fan of The Daily Show, he enjoys puzzling over the legal and political issues of our time. Gabe prefers to examine both sides of an argument, although as a New Yorker he usually finds it easier to just side with the liberals.

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