Should the Democrats Change the Filibuster Rule?
With the Democrats holding the presidency and solid majorities in both houses in Congress, Republican filibusters are now the only thing preventing truly progressive legislation. Should the Democrats therefore try to change or get rid of filibusters? We should keep in mind that the Democrats could do this if they wished, possibly turning the Senate into a majority-rule chamber like every other legislative body.
How could this be done? There are two possible ways to change the rules. Rule changes in the Senate currently require a two-thirds majority of Senators present and voting. So theoretically this is possible, but the Republicans of course would never allow it. The other way is to use what is called the nuclear option (by its opponents), or the constitutional option (by its advocates).
This is a complicated use of parliamentary procedure that ultimately results in a majority vote that ends a filibuster. Essentially a Senator wishing to end the filibuster makes a point of order calling for an immediate vote and the presiding officer of the Senate upholds this, citing the Constitution rather than Senate precedent as a guide (hence the name Constitutional option). When this happens the only recourse in parliamentary procedure is to appeal the decision of the chair. If one of the filibustering Senators does this, then an anti-filibuster Senator immediately moves to table that appeal. Since motions to table are non-debatable in parliamentary procedure, a vote to table the appeal is held immediately, and if it is passed by a simple majority then the chair's ruling that a vote must take place is upheld, and so a vote is taken. The filibuster is broken by a simple majority.
The Republicans threatened to use this option when the Democrats were filibustering some of George Bush's judicial nominees, but a compromise was eventually reached and it was not employed.
It has been used in the past, however, and it definitely does work. If the Democrats wanted to use it they could, and once this option is employed it becomes precedent-setting, so the Senate would then become a majority-rule body. There is no question, really, about whether this would work. It does work if a majority votes for it. The only real question is political: does the majority want to do it?
A bit of history is in order here. The Senate had unlimited debate, and no cloture rule, until 1917, when a rule was adopted requiring a supermajority of two-thirds of Senators present and voting in order to cut off debate and end a filibuster. This rule remained in force until 1975, and filibustering was used most importantly by Democratic Senators from the south in order to block civil rights legislation. The longevity of this rule despite the fact that it can be overridden demonstrates the political considerations, as does the next step in the evolution of the rule.
In 1975 a version of the nuclear option was used to change the filibuster rule by a simple majority vote of 51-42. However, the filibuster was not eliminated, rather the supermajority that was required to end a filibuster was changed from two-thirds of Senators present and voting to three-fifths of the Senate's full membership. This shows the political caution that Senators feel they must exercise regarding the filibuster rule. Polls have shown support for the filibuster rule, so Senators have two reasons not to use the nuclear option. First, they might want to use filibusters themselves at some point, second, they might not get re-elected if voters disapprove. The result is that Senators are very reluctant to get rid of the rule completely.
The 1975 change was supposed to reduce the use of filibusters by lowering the cloture requirement from two-thirds to three-fifths, but it hasn't worked out that way. In the past, the requirement of two-thirds of those present and voting meant that the filibustering minority had to keep its Senators constantly present in order to maintain a one-third blocking minority anytime a vote to cut off debate might be held. This required a lot of personal commitment and discomfort f the majority decided to keep the Senate in session around the clock. This also produced high drama at times, as was depicted in the classic Jimmy Stewart movie Mr. Smith Goes to Washington.
The 1975 change made the required supermajority to cut off debate three-fifths of the Senate's full membership, or sixty Senators if there are no vacancies. This means that the filibustering minority really only needs to mobilize one Senator at a time to conduct a filibuster, just the one doing the talking. If they rotate people speaking, then even if a cloture vote winds up 59-1 in favor of cutting off debate, it still fails and the filibuster continues.
The result has been that the minority now just tells the majority that they intend to filibuster, and if the majority can't find sixty votes, it gives up. This is called a procedural filibuster, because an actual one is no longer necessary. Due to this, filibusters have proliferated tremendously. In the old days, filibusters were only employed when the minority felt very strongly about something, because filibusters were really uncomfortable and took a lot of effort and sacrifice. Now, any time a minority has 41 votes, they just announce a procedural filibuster, and they win.
Given all this, I think we can expect that in the very near future we will see a huge number of filibusters. There is a lot of pent-up demand for progressive legislation, and the Democrats control the presidency and both houses of Congress, but the 41 or 42 Republican Senators can still effectively kill all the new legislation that the country needs. We also should keep in mind that several Democratic Senators are from Republican states, and we are as likely to lose votes at the margin as to gain them.
So, the question soon will be: should the Democrats use the nuclear (oops, I mean Constitutional) option? I think they should, but in the same cautious way it was used in 1975. The Democrats will not be willing to just go completely to majority rule, because voters are not in favor of it.
I feel that the Democrats should use the constitutional option to amend the filibuster rule, changing it from three-fifths of the full membership of the Senate to three-fifths of those present and voting. That would make it like the old days, but with the magic number being three-fifths instead of two-thirds. Then the chronic absenteeism of Senators becomes a very big factor. If only 90 Senators are present for example, then you would only need 54 votes to end a filibuster. This would require the Republicans to work for it if they really wanted to oppose something. They would have to do the Jimmy Stewart thing, which would also have the added benefit of making the Senate a lot less boring.
I think we should expect this issue to be prominent in the coming months and prepare for it. The slogan should be "the filibuster - amend it, don't end it", and I have some talking points. The first is "when a vote is 59-1, one shouldn't win, and the second is "90% of life is showing up, except in the US Senate". Be prepared.
I am going to have to review this several times. In the end I project that the Dems will threaten, and the Reps will feign a defense and four or five or even six Reps will cut a deal.
I could be way off, but I think the issue will come to the fore on judicial appointments. The thing that drove Delay and others crazy.
December 10, 2008 10:16 PM | Reply | Permalink
Thanks for commenting, DD. I think your scenario is plausible, and I hope you're right, but it could go the other way also. The big issue could well be fiscal stimulus. The Republicans define themselves as small-government conservatives opposed to government spending, so the massive stimulus program that we clearly need could easily trigger a major filibuster.
December 11, 2008 8:27 AM | Reply | Permalink
Why not amend it to 55 votes and leave at that? You still have the supermajority but a smaller one and one that is less than the Dem majority.
December 11, 2008 12:20 PM | Reply | Permalink
Excellent discussion, and I learned a lot from it. I will be utterly astonished if the Democrats do anything at all to change the filibuster rule, other that request that when they bend over on demand by Republicans, they get to do so in private.
The first test will apparently be the confirmation vote on Holder for AG.
I admit that I am curious about why American voters want the Senate to have filibusters, but make no similar demands of the House. Could it be that American voters, being notoriously uninformed about just about everything, have no idea what they are in favor of in this instance? If so, then framed correctly, those voters will favor eliminating filibusters entirely.
An exception to that would be if one Senator, once able to speak, manages to continue to speak endlessly, thus performing a personal filibuster. That, I believe, is what the American voters think is being discussed when the word filibuster is tossed around.
December 10, 2008 11:44 PM | Reply | Permalink
I agree. Learned a lot from this. I think the anonymous senatorial hold should be revisited also.
December 10, 2008 11:49 PM | Reply | Permalink
Thanks, HC2, I agree that filibuster reform is probably unlikely, but I'm suggesting it anyway, at least in a limited form that I think might have a chance. I also agree with you, definitely, that the polling on this issue is asking the public about an issue that most people have probably not thought about very much, and that this could be changed with the right education.
Lux, thanks again for commenting. I totally agree with you about Senate holds. In fact, I think a culture has evolved in the Senate of extreme respect for any and all Senatorial privileges, and that this culture has now just come to reflect an attitude of entitlement on the part of Senators.
December 11, 2008 1:34 AM | Reply | Permalink
Absolutely Not
It would be an extremely stupid thing for the Democrats to do. The filibuster is there to restrain mob rule. America has never been a democracy. It is instead a republic, with representatives chosen in a democratic fashion. Filibusters have often been abused, but the abuses resultant from simple majority rule for all acts of The Senate would be far worse. Do you not remember how the Democrats kept the very worst of Bush's Federal Judiciary nominees from being affirmed? It was the same filibuster process. Are you unhappy that they were able to use it this way? If not, then why do you desire to change the rules, now that the tables have been turned?
Democrats will not retain the majority in the Legislative branch eternally. This is guaranteed. The filibuster is a proper restraint upon the tendency of democratic institutions to use the guillotine.
December 11, 2008 12:10 AM | Reply | Permalink
Actually, PCA, the filibuster was not instituted in order restrain mob, or even majority rule. it evolved by accident. When Congress began, debate could be ended by majority vote. In 1806, Aaron Burr (that guy again) insisted that the cloture rule be dropped because it wasn't being used, and this was accepted. At that point there were no restrictions on filibusters, but Senatorial courtesy was such that it was very rarely used in the 19th century, until the administration of Woodrow Wilson, when its use caused the rule to be changed to the version that allowed cloture with a two-thirds vote. So, actually, filibusters were created by accident in 1806 and the Senate has been periodically limiting them since then. Its true that the filibuster was used by Democrats recently to keep a quite small number of Bush's appointees from appellate courts, but it's also true that filibusters delayed the enactment of civil rights in the south and the repeal of Jim Crow by decades. Ultimately, I'm not a fan.
December 11, 2008 1:26 AM | Reply | Permalink
It seems like every time we are faced with anything approaching true democracy we revert to the stance that people can't be trusted. For example, we require 2/3 votes on issues involving us having to spend more money on our government. And, the filibuster, as it now exists, is an ultimate anti-democracy tactic.
Mob rule? Democracy is mob rule by definition. We have just spent the last 8 years giving lip service to the joys and benefits of democracy, so how can we now call it "mob rule"? We do this so consistently it has to be obvious to everyone in the world that we do not support democracy period.
And, I have to once again bring up the acts of Congress following 9/11/2001. There is the example of mob rule you should be concerned about, and we had a fully operational filibuster system working then.
It is also time to accept that Democrats will never use a filibuster for any useful purpose even if we leave it alone. Filibusters are for use by conservatives only - it is a conservative act in itself. Sure, Democrats made a very limited use of filibusters during the Bush administration, but backed away from that process entirely when the Republicans said "Booo!" That reaction isn't likely to change.
December 11, 2008 1:32 PM | Reply | Permalink
"Mob rule"? I can just picture a mob of composed of 51 senators.
December 11, 2008 4:38 PM | Reply | Permalink
I have mixed feelings on this. Changing the filibuster rule sounds great with the Democrats running the show, but I shudder to think about the Republicans regaining control. Would the Democrats put forth the sacrifice to filibuster important issues? I wouldn't gamble on it.
December 11, 2008 5:41 AM | Reply | Permalink
Thanks for commenting, FT. I agree that mixed feelings are appropriate. No rules change can be a permanent guarantee of advantage for either side. I think the question of how desirable this is hangs on the issue of how quickly you want your government to respond to shifts in public opinion. Filibusters impede and slow down changes, no filibusters means changes will be more rapid.
I would say two things regarding this. First, I feel that the immediate need for significant change is very great, as the country really is in a major crisis. Consumption, and therefore labor markets, and therefore the entire economy, are in free fall. We are looking at a likely depression (defined as unemployment more than 10%) and need massive fiscal stimulus to forestall it. Will the Senate republicans go along? No guarantee, and that could be the thing that forces the filibuster issue.
Second, our system already has more brakes on change than other advanced democracies, and I don't see that the others suffer for it. We have two coequal legislative chambers and a separately elected president that all have to agree to pass a new law. Many other countries have a parliamentary system, with an executive automatically controlled by whatever party controls that legislature. Some also only have one legislative chamber. They seem to do OK. All in all, I believe that the filibuster is an unnecessary addition to the built-in brakes on change already in our system.
December 11, 2008 8:23 AM | Reply | Permalink
I see your point. Our system of checks and balances ends up being a system of can't get crap done because no one lets anyone do squat. (pardon my redneck)
December 11, 2008 12:39 PM | Reply | Permalink
I would argue for the elimination of the procedural filibuster regardless of which side is in the majority. This would force debate on the floor of the Senate... the very purpose of the Senate being debate. Certainly, it will make for better CSPAN2 viewing; more importantly, it will make the minority explain itself... and that is a good thing for the country.
If you are going to filibuster, at least have the gonads to debate on the Senate floor as opposed to having Senate staff pulling the strings behind the scene.
December 11, 2008 6:12 AM | Reply | Permalink
I heartily agree. CSPAN2 is not exactly razzle-dazzle TV viewing, but a true, old-fashioned filibuster, with Senators taking turns sleeping in cots in case a vote is called, would be the kind of drama that would actually make governance interesting again.
December 11, 2008 8:31 AM | Reply | Permalink
TH: CSPAN I @ II is my favorite 'background music'. Cleaning up or reading or typing. Regardless of the punditry and 'deep background information' CSPAN becomes a primary source for the Plebeans I got to watch Stevens melt down and threaten to go to every senators state and 'tell them what they have been doing.' I get to watch senators scream: 'No I will not yield'. Just like it was in 1866. I am droning on again. I kind of agree with you and wooing a few Reps will cure a lot of problems. But this parliamentary comment is superb because that is what this is all about.
December 11, 2008 10:50 AM | Reply | Permalink
The filibuster can be a useful check by a minority on an onrushing majority, but that does not seem to be the case right now. The Senate GOP is a small, ideologically rigid group of people from basically one region: the South. Even the few so-called “moderates” are not really moderate. This group of people with an archaic economic/cultural philosophy have the ability under the cloture rule to block the real change that the American people have made clear they want.
Indeed, it looks like the current GOP group will successfully block the bridge loan to save the auto industry that Democrats have worked out with the White House. (And in doing so, they will give up all hopes of the GOP again capturing Michigan and Ohio in national elections for the next 25 years.)
I wonder how patient the public will be with these filibuster shenanigans under the current dire circumstances, especially if a bad recession is made markedly worse by the failure of the Big 3 (you could then expect the unemployment rate to march on into double digits).
I’d like to see Harry Reid call the Senate into session around the clock, and force the Republicans to in fact talk 24/7, exposing the Republican obstructionist efforts for all to see, for the national press to comment on it. I wonder how long the public would put up with it?
The filibuster rule as it now stands (and is abused) is NOT a check on majority rule. It represents a broken government, a non-functioning democracy. We need major remedial change to fix the government, to deal both with economic collapse and with climate change and environmental issues, and with poverty and many other issues. And the public wants this change. I cannot wait two more years to get a Democratic super-majority in the Senate. The rule has to change.
But I suspect that the GOP is condemning itself to irrelevance in national politics for the next 50 years if it continues on its current, obstructionist course.
December 11, 2008 10:54 AM | Reply | Permalink
The filibuster as I see it, was intended to prevent the tyranny of 50% +1 one vote locking out any minority participation (essentially it was there to force compromise). The problems with the current Republicans include:
1. the media war; the Republicans feel that by forcing the last congress to be the do nothing congress by virtue of the hidden filibuster, they've made the Democratic majority look like the "do-nothing congress" and for their party's uninformed rank and file base, this has worked.
2. The Republicans are extremely fearful that Obama's going to get his way, and more importantly, his way is going to demonstrably work. (Never mind that it might truly be necessary, he's a Democrat!)
3. The Republicans are extremely fearful of a New New Deal, which they feel will weld the average US voting citizens' loyalties to the Democratic Party for a generation to come. (Never mind that we may very well need it to survive as an economy/nation.)
Overall, the Republicans aren't smart enough to recognize that what's happened to the country under their leadership is simply cause and effect, they think that they've just been unlucky, and if they stall long enough, holding to the party line, they'll get "lucky" again.
At the time that these rules were made, nobody hypothesized the "Party uber alles" mentality of the Republican party. These guys would do anything to win, and doing the right thing be damned, if it looks like a Democratic idea.
December 11, 2008 11:37 AM | Reply | Permalink
No way. The dems all gave sweeping speeches in favor of the procedure when the GOP had this exact same idea less than 5 years ago. The same arguments about mandates and the stupid obstructionist democrats were the basis for the GOP's justification. I say play by the rules - don't change them in your own favor.
What the democrats should do is actually MAKE THEM DO IT. It used to be if the opposition wanted to filibuster they had to actually hold debate open while talking nonstop. What needs to stop is the Senate tabling issues when the opposition threatens to filibuster - it's like "oh no, a filibuster ... what will we do? What WILL WE DO?!?! We can't let them FILL-I-BUSTER us!!!!!"
I'd like to see them force any filibuster to a minimum of 12 hours debate.
December 11, 2008 1:26 PM | Reply | Permalink
That is a good suggestion, but I would take it further. Let filibusters be filibusters. A filibuster is when one man has the floor and will not yield it to allow a vote. That one man can talk as long as his voice holds out, and there is no reason to adjourn the day's session just to give the guy a break. At most, restroom breaks could be allowed, but no meal breaks.
The effect of this is to gain publicity for the heroic efforts of that single filibusterer, which could turn public opinion in his favor. But, merely announcing that your party will not allow a vote to take place is tyranny by the minority, surely as bad as tyranny by the majority.
December 11, 2008 1:40 PM | Reply | Permalink
The Republicans have had their time to run this country and they have squandered every minute of it. Now it is the Democrat's time, and they should not allow anybody to get in their to thwart effort to advance programs that are critical to the improvement of the well-being of the working families in this country. Everybody knows the Republicans are presently embittered by their recent losses of the White House as well as both houses of Congress. They are sure going to seek to resort to acts of vengeance for their defeat. Filibustering, stalling, delaying tactics and others act of legislaive sabotage can be expected from Republicans, all for the purpose of derailing Democratic-initiated programs designed to meet needs of the American people.
In order to counter Republican legisltive shenanigans what should congressional Democrats do? As much as Democrats should at all times ensure that Republicans are consulted and included in the enactment of legislations, Democrats should maintain vigilance against against all acts of Repubilcan sabotage calculated to undermine Democrats to ensure the falure their governance. Thus a nuclear option
December 11, 2008 1:45 PM | Reply | Permalink
What's sauce for the goose is sauce for the gander!
A few short years ago, the Republicans thought the nuclear option was a good idea. And it is.
While they did not invoke the nuclear option, they basically got the judicial confirmations they wanted.
Now the shoe is on the other foot, and the GOP suddenly does not like the nuclear option. Maybe the Democrats should offer a compromise similar to that offered by the GOP several years ago? Namely, the Democrats will not invoke the nuclear option so long as the Republicans agree not to filibuster progressive legislation. That is, the Republicans will still get to filibuster so long as they do not block things like health care reform, a fiscal stimulous package, or the repeal of last minute regulatory changes made by the Bush administration.
The truth of the matter is, the filibuster serves conservative interests in that it has been used to block reforms. The filibuster serves to preserve the current state of affairs.
Or constitution guaranteed that making laws would be difficult. Unlike a parliamentary system, where one elects a dictator for five years (as in the U.K.), broad support is needed to get anything done. Not only must laws pass two houses of Congress, they can be vetoed by the President and declared unconstitutional by the courts. And the doctrine of Federalism limits, at least to some extent, the powers of the national government. (If the states really object to something, they have the power to change or even abolish the Federal government to one more of their liking.)
The current system of fillibusters is almost, but not quite as, ridiculous as the medieval Polish parliament, where unanimity was required to pass any measure. Is it any wonder that ancient Polish state failed?
December 11, 2008 1:51 PM | Reply | Permalink
This is a shocking report. I didn't know the filibuster was just an elite gentleman's agreement.
I'm so frustrated with Reid and Pelosi. They're mild-mannered, sort of complacent in their power, no sense of urgency and populism.
December 11, 2008 2:05 PM | Reply | Permalink
The filibuster is important because the Senate is not a proportionally-representative body. It made sense for the Democrats to have the filibuster under the Republican-led Senate because they actually represented more people than the Republicans. Now, the Democrats have both a majority of Senators and represent a substantial popular majority. That boosts the rationale for reducing the filibuster margin for this Senate.
December 11, 2008 2:14 PM | Reply | Permalink
This is short-sighted. If we hadn't had a filibuster rule in the 108th and 109th Congresses, the parade of legislative horrors from those dark years would have been even longer. In particular, the worst of the judicial picks the Democrats blocked with the threat of a filibuster during those years were just awful. Congresses and statutes come and go. Federal judges are on the bench till they get tired of it or die.
We're not going to be in the majority forever and I am not willing to take it on faith that the Republicans will have become more sane by the time that happens.
December 11, 2008 2:35 PM | Reply | Permalink
Ditto that! Also, how long ago was it that the Republicans were threatening to change the filibuster rule to force through Bush court appointees?
http://thehill.com/dick-morris/the-filibuster-fight-will-be-disastrous-for-the-gop-2005-04-20.html
The dispute was resolved by the Gang of 14, but it would have been enormously unpopular had it happened. There are enough moderate GOPers that I don't think we'll be filibustering very often anyway. If the GOP is obstructionist, Obama can use the bully pulpit much the way GWB did to get his will done in Congress.
No need to change a rule that is essential to protecting the minority voice regardless of which party is in power at a given time.
December 11, 2008 3:38 PM | Reply | Permalink
I think stepping for eliminating the filibuster is really jumping the gun considering the Senate leadership has failed so far to use most of the basic tools the majority has for limiting use of the filibuster.
Rather than eliminating the filibuster, why not just start using it properly? I.E., make filibusterers actually filibuster, tie filibuster-threatened legislation to basic funding bills, mobilize democrats in the filibusterers districts, go on television every 20 minutes and talk about how sad it is that Sen. Coburn is going to such enormous lengths to prevent gay immigrant children from getting the stem cell medication they need.
The Democratic congress has not really done any of these things the last two years, instead they just fold the moment the word "filibuster" is uttered. This approach does make some sense when you consider that anything a Republican was filibustering the President would have surely also vetoed, so playing filibuster hardball would have probably been a waste of time in the 110th Congress, but in the 111th Congress they will have no excuse.
December 11, 2008 3:01 PM | Reply | Permalink
Yes, this undemocratic and dysfunctional relic of the Federalist aristocracy, designed to prevent Congress from actually doing anything, should go. Form our point of view, what does it protect- i.e., how often did the Democrats use it successfully to block insane Rethug proposals when the Thugs were in the majority?
December 11, 2008 3:43 PM | Reply | Permalink
Good question, Steve! I assume you are referring only to the legislation that many of the Democrats were not voting for. As soon as I can think of any examples I will be back to discuss them. Let's see now, how about the Iraq invasion?....
December 11, 2008 4:16 PM | Reply | Permalink
I want to reply to few points made above in a general way while I have a few minutes between appointments. First, several commenters are arguing about the wisdom of eliminating the filibuster entirely. While I think that this is a very valid issue, I posted to present an alternative that would not eliminate filibusters, just make them more difficult to mount. I was hoping to get some reactions to that idea. Any opinions, anyone?
Some people remarked that democrats do not go after Republicans who filibuster politically. The reason is that filibustering is now no longer done actively, except perhaps by a single person who is talking. If a cloture vote is held, Senators don't vote against it if that is politically costly, they just don't vote at all. As I said, if cloture vote winds up 59 in favor and one opposed, the vote fails to break the filibuster. You can't go after filibustering Senators when they aren't really filibustering. One reason behind my proposal is that under it filibustering Senators would be required to go on record as voting against cloture, then it would be possible to go after them politically.
Several people are worried about losing the filibuster when Democrats might want it in the future. Under my proposal Democrats would retain the power to filibuster, but like Republicans, would only use it when it was important. If it's still there to be used in important circumstances, then I think minority rights are safeguarded.
December 11, 2008 4:42 PM | Reply | Permalink
December 11, 2008 5:37 PM | Reply | Permalink
Your proposed changes are brilliant, Tom. Requiring 3/5ths of those present for cloture would hold everyone accountable, republicans and Democrats alike. I doubt that Reid has the b*lls to do it though and, who knows, the blue dogs might vote to block it anyway. Something needs to be done because it's pretty obvious from the auto maker bailout that the repubs don't think much of bipartisanship.
December 11, 2008 5:58 PM | Reply | Permalink