written by Mark Roth
July 3, 2012
In 1957, Sen. Strom Thurmond of South Carolina decided to filibuster a civil rights voting act, even though his fellow Southerners had already agreed to a compromise.
For the next 24 hours and 18 minutes, speaking softly so he wouldn't lose his voice, Thurmond read each state's election laws, the nation's founding documents and anything else he could lay his hands on to keep his speech going. Rumor had it he even designed a special catheter so he wouldn't have to use the bathroom. In the end, he had set a record for the filibuster, a parliamentary maneuver that is unique to the Senate.
Today, the filibuster is more popular than ever, but the current version is a far cry from what it was when the segregationist senator stayed on his feet for more than a day.
Some reformers say that is exactly the problem.
Because senators no longer have to talk for hours to maintain a filibuster, these experts say, the tactic is being grossly overused, and has now become the poster child for inaction in the modern Congress.
“My own view is that the routinization of the filibuster process has been a major reason for the gridlock of recent years,” said William Galston, co-founder of the Congressional reform group No Labels, and an expert on the filibuster with the Brookings Institution.
The current filibuster works this way: Any senator — but usually one in the minority party — can state his intention of launching a filibuster against a bill or a motion. It then takes a vote of 60 or more senators, known as a cloture vote, before any action can be taken on the matter.
When the minority party is strong, as the Republicans are now, with 47 of the Senate's 100 votes, filibusters can block virtually any piece of legislation.
Just two weeks ago, for instance, the Senate failed to overturn filibusters on a postal reform bill, and immediately after, on the “Repeal Big Oil Tax Subsidies Act,” both by 51-47 votes.
The use of the filibuster, technically known as a motion to invoke cloture, has skyrocketed in recent years. After a period of almost no such actions from the late 1940s through the 1960s, the Senate recorded about 40 cloture motions in the early 1970s, 80 during the mid-1990s, and finally 139 motions in 2007-08, according to the Harvard Law & Policy Review.
No Labels, a Washington, D.C., advocacy group that is working to reduce the current polarization of the political parties, is one of the organizations pushing hard for filibuster reform.
Of 12 major anti-gridlock proposals recommended by the group, two are aimed at the filibuster.
One would require senators to go back to speaking on the floor to carry out a filibuster, which would once again require some “sweat equity” for anyone wanting to use the technique.
“Then, if senators think it's important enough to take whatever political heat might be coming their way, so be it,” Mr. Galston said. By not requiring senators to do anything more than announce their intention to filibuster, he said, “the filibuster is sort of a ‘Look ma, no hands' way of avoiding accountability.”
The other reform would prohibit using the filibuster on motions to proceed.
Under the current rules, senators not only can use the filibuster to debate legislation they don't like; they can use it to block legislation or appointments from coming up for debate in the first place.
“If the classic reason to filibuster is to preserve your right to debate, that's not legitimate,” said University of Miami professor Gregory Koger, author of the 2010 book, “Filibustering: A Political History of Obstruction in the House and Senate.”
Some political scientists say it is also a way for the minority party in the Senate to make the majority look incompetent.
In their book, “Winner-Take-All Politics,” professors Jacob Hacker and Paul Pierson said the minority party has discovered that “you didn't just block reform with a filibuster; you bloodied your opponent. Tying Washington up in knots made the majority look ineffectual and fueled popular disdain for politics, which was hugely beneficial to the minority.”
Despite such criticism, not everyone feels the filibuster rule needs to change.
Brian Darling, a senior fellow at the Heritage Foundation, said he wouldn't mind requiring senators to return to a “talking filibuster,” but he is also content to leave the rule the way it is.
“I have no problem with going back to the old way of senators taking the floor and speaking as long as they can,” he said, “but what I don't want is to move forward with a reform that would just strip the rights of the minority to debate.”
In a briefing paper last year, Mr. Darling also said that many of the filibuster motions by Senate Republicans were an attempt to counter an arcane parliamentary maneuver by Senate majority leader Harry Reid, D-Nev.
If Mr. Reid wanted to act on a certain bill, he would exercise his prerogative as majority leader to use up most of the amendments allowed on the legislation with minor amendments of his own, a process known as “filling the amendment tree,” Mr. Darling said.
In the two decades before Mr. Reid took over, he said, previous majority leaders had never used that practice more than 12 times in a Congressional session, but from 2007 through early 2011, Mr. Reid employed the maneuver 44 times.
Mr. Darling also argued that President Barack Obama has been able to achieve much of his legislative agenda despite the filibuster. “I think it's a mischaracterization to say the Senate is broken. It's hard to govern, but every single time we've had a big controversy, everything has worked out, even though there was a lot of brinkmanship.”
Others note that most of the president's legislative victories came in his first two years of office, when Senate Democrats had 60 votes. Since the midterm elections, much less of the administration's agenda has been approved.
When the minority party invokes cloture votes frequently, it makes it harder to get anything done, said Barbara Sinclair, a filibuster scholar who is an emeritus professor at UCLA.
“If you have a large, determined minority willing to use its prerogatives in the Senate, it can take an enormous amount of time to get something through, and if the majority has a big workload, it just has to jettison some things. The majority has to figure out what is it going to use its limited time on.”
The roots of the modern filibuster go back to 1917, when a small group of progressive Republicans blocked legislation proposed by President Woodrow Wilson to put weapons on merchant marine ships.
A furious Wilson reconvened Congress and demanded action so that “a little band of willful men can't keep this country from making decisions when they are absolutely necessary,” the University of Miami's Mr. Koger said.
That led to adoption of the first rules for a cloture vote to shut off debate, which at that time required two-thirds of the Senate (the threshold was changed to 60 votes in 1975).
In the 1950s and '60s, the filibuster became linked to Southern senators fighting civil rights legislation, as Thurmond did in his 1957 marathon. Democrats often were reluctant to invoke cloture on those debates, he said, because Northern Democrats who secretly opposed civil rights bills could let the Southerners carry the burden on that.
Once the civil rights fights faded into the past, the floor-speech filibuster became less common as the tactic of merely using the threat of a filibuster to hold up legislation became more common, Mr. Koger said.
That didn't immediately cause filibus
ters to skyrocket, partly because the Senate in the 1960s and 1970s was much more collegial than it has been since, said Ira Shapiro, a Washington attorney and author of a new book, “The Last Great Senate: Courage and Statesmanship in Times of Crisis.”
Under the leadership of such men as Mike Mansfield and Robert Byrd Jr. on the Democratic side and Everett Dirksen and Howard Baker on the GOP side, “the Senate worked during that period despite the threat of filibusters because they were used relatively rarely and for big issues,” Mr. Shapiro said.
All of that changed beginning in the late 1970s, he said, when “the Republicans started lurching to the right and the bitter partisanship of the House and the tactics of politics as war came over to the Senate.”
For those who would like to reform the filibuster, there is one other huge hurdle, said Sen. Tom Udall, D-N.M., who led the last big push for changing the rule.
That's the fact that the Senate needs a two-thirds vote to change any of its own rules.
Mr. Udall has argued — unsuccessfully so far — that the Senate has a right at the beginning of each new Congress to change its rules by a simple majority vote.
“The issue has been, do we have 51 senators who will hang tough on reforms?” he said in a recent interview.
Asked why he hasn't been able to assemble such a majority to alter the Senate rules, Mr. Udall said that “a big part of it is the power for each individual senator that results from this utilization of the current rules.”
As things stand now, any individual senator can use the filibuster technique to hold up legislation or a federal appointment, and “if one senator gets to hold up the show, it allows him to get individual things done that he wants for his state.”
To counter that, he said, “my argument is that all of us need to give up some individual power so that we can accomplish things for the good of the American people.”
Mr. Udall also said that the stalemate over filibuster reform doesn't just break down along party lines. Instead, he has seen much more interest in changing the rules among younger senators of both parties.
The political divisions in the Senate today in large part reflect polarization among American voters, he added, but “still, I think what many of voters want us to do is try to find something we can agree on and move forward with some kind of common ground.”
No Labels' Mr. Galston agreed.
When the group came up with its 12 reform proposals, an independent survey showed they were supported by 74 to 88 percent of voters, depending on the issue.
“I think people understand that the institution isn't getting the people's business done,” he said, “and they do know enough about filibusters to know that they are a way of slowing things or bringing them to a halt.”
At the same time, added Mr. Koger, he would not want to get rid of the filibuster altogether, because “if the minority party doesn't have the right to filibuster, the majority party will limit debate in the chamber.”
Retaining the right of the Senate minority to debate fits the concept of founding father George Washington, he said.
According to the U.S. Senate website, when Thomas Jefferson returned to America from France and found that the Constitutional Convention had created a Senate, he asked Washington why.
“Why did you pour that tea into your saucer?” asked Washington. “To cool it,” said Jefferson.
“Even so,” responded Washington, “we pour legislation into the senatorial saucer to cool it.”