Made famous by the 1939 film Mr. Smith Goes to Washington and infamous by senators who used it to block civil rights legislation, the filibuster was initially conceived as a way to prevent a Senate majority from steamrolling the minority. As long as a senator kept talking on the floor, a bill could not move forward unless a supermajority of senators voted to end debate. For much of the 20th century, the Senate required a two-thirds majority vote (a device known as cloture) to break a filibuster. In 1975, the Senate reduced the number of votes required for cloture to three-fifths, or 60 of the current hundred senators.
The filibuster has been used for good and for ill, but for most of the Senate's history, it was rare, and it required members to stand up for hours on end to make their case. Neither is true anymore.
In the first 50 years of the filibuster, it was used only 35 times. In the last two years alone, it was used over 100. And senators don't even have to show up on the floor to explain themselves – just signaling their intent to filibuster effectively stalls legislation.
As a result, the Senate has become a place that one senator described as "non-functional," where even routine bills must now clear 60 votes. This means that 41 senators, representing as little as 11% of the U.S. population could theoretically obstruct passage of a bill supported by 59 senators representing as much as 89% of the population.
This is completely contrary to the intent of our Founders. They believed a supermajority should be required only in select circumstances including the passage of treaties, constitutional amendments and motions of impeachment.
Finally, constant filibustering gums up the Senate calendar. Every filibuster kicks off a complex set of Senate procedures that effectively brings the institution to a stop for as long as a week and prevents other critical issues from being addressed.
Our filibuster fix is based on a simple idea: If senators want to filibuster legislation, they should actually have to explain why in public. We propose a two-part solution to reduce unwarranted use of the filibuster in the Senate:
This proposal require a change of House and Senate rules, which can be made effective when the new Congress is seated in 2013.