The filibuster was once an entirely different animal. It was, in and of itself, the Senate’s “nuclear option.” Members inclined to use it had to talk ceaselessly on the Senate floor without interruption. Amid the Great Depression, at a moment when a majority of both houses of Congress were prepared to embrace the cornerstone of President Franklin Roosevelt’s New Deal, Sen. Huey Long decided to filibuster the National Recovery Act. The Louisiana Democrat took to the floor and began speaking without end. Five hours in, at 3:50 a.m., he threw in the towel, desperate to pay a visit to the restroom. Roosevelt’s agenda prevailed.
Today, the Senate’s rules and traditions have changed the filibuster at its core. Senators need not stand up and make a cogent speech, or read the phone book, or hold their bladders. Rather, they simply indicate privately their intention to filibuster and, like magic, the filibuster comes into effect. The burden of overcoming that silent filibuster falls on those championing the underlying legislation. Unless the bill’s sponsor can find 59 other senators to support a so-called “cloture motion” ending debate, the bill is effectively dead. The filibusterer, thwarting the will of what may well be a majority of his or her peers, isn’t put out in the least.
Is it any wonder why the filibuster is now being abused? When Sen. Strom Thurmond endeavored to filibuster the Civil Rights Act of 1957, he literally took a steam bath, so as to have less liquid in his system, ahead of commanding the Senate floor for a full 24 hours. His crusade to defend Jim Crow was despicable and immoral. But Thurmond’s steely resolve was something to behold. The South Carolina Democrat never lived down the dishonor of having sacrificed so much for such an amoral undertaking. But he didn’t shy away from the fight—he stood on the Senate floor for all to see.
That’s the difference. Today, senators can have much the same effect Thurmond had on much more minor bills simply by announcing their intention to filibuster. And that’s what they do with regularity. Don’t like a budget bill, a security bill, an immigration bill, a crime bill, an agriculture bill? The subject almost doesn’t matter. The 50% threshold doesn’t mean much in the Senate anymore because, at the drop of a hat, a senator can “filibuster” the bill. Without even having to show their faces, they can filibuster a piece of legislation.
That’s made the filibuster a target for elimination in Washington, particularly among Democrats who watched Republicans use the procedural measure to stymie a great deal of President Obama’s agenda. Now, as Democrats sit poised, potentially, to assume control of the Senate after the November election, many presume they will get rid of the filibuster altogether, fearful that if Joe Biden wins the presidency and Democrats control both houses of Congress, a minority of Republican senators will nevertheless use this lazy version of the filibuster to hold up the Democratic agenda.
But the filibuster isn’t just about obstruction. It’s supposed to be a tool that draws senators to collaborate—to head off conflicts with their peers in a collaborative way. Because neither party frequently maintains a 60-vote bloc, the filibuster is designed to incent members to reach across the aisle. Knowing that an opponent could mount a Huey Long-, Strom Thurmond-, “Mr. Smith Goes to Washington”-type filibuster, members have reason to reach out to work through objections to any legislative proposal.
The easy filibuster has upended that dynamic. Rather than enhance bipartisanship, as the talking filibuster served to do, the procedure today simply nurtures obstruction. That’s a problem that deserves a remedy. But by eliminating the filibuster altogether, the Senate will also lose the impetus to collaborative leadership. If a simple majority can work its will without even the threat of opposition, the Senate becomes a mirror of the House, where the minority is almost entirely locked out of power and where huge changes to the rules and regulations that govern our lives and our economy could happen every two or four years depending on who is in power. And that certainly is not what the Founders intended for the world’s greatest deliberative body.
In America’s constitutional system, every branch is charged with certain responsibilities and subjected to certain limitations. The Senate, designed to cool the passions of the House, is supposed to be a bastion of wisdom—a body balanced enough to incorporate perspectives from multiple points of view. If too many of those voices have an effective veto, obstruction reins. To strike a better balance, the Senate shouldn’t eliminate the filibuster, but rather make it harder to mount. Returning to the old tradition will incentivize the bipartisanship that Americans of all stripes are desperate to restore.
Nancy Jacobson is a founder of No Labels, a national organization of Democrats, Republicans and independents dedicated to a new politics of problem solving.