How the filibuster evolved and why it’s here to stay
“In the older and better times of the Senate, it was supposed that the representatives of sovereign states … would restrain themselves from the excessive use of irrelevant talking.” Speaking over 150 years ago, Senator Willie Mangum of North Carolina deplored what he saw as the shameful use of obstructionist tactics in the U.S. Senate. Recently, the frustration caused by the filibuster has grown dramatically, and today, we face a Senate that is paralyzed by gridlock as members of the Republican minority have fallen into the habit of filibustering, or threatening to filibuster, on nearly every major issue. The idea that every bill needs 60 votes has become commonplace. But a look at history reveals that the filibuster is simply a quirky tradition that evolved over time, not a fundamental principle of congressional procedure. Still, though the call for reform has been forceful, the “irrelevant talking” is probably here to stay.
EVOLUTION OF THE FILIBUSTER
Though the founders intended for the Senate to be a bastion of free debate, the filibuster was never part of the body’s original design. The quality and length of debate in the Senate was meant to come as a result of its small size and senators’ relatively long terms. In an interview with the HPR, Columbia professor of political science Gregory Wawro clarified that “there is not clear guidance from the Framers on this. The Framers thought the Senate was meant to be a check on the democratic whims of the House. If the Senate worked exactly as the House, [that would] run contrary to Framers’ vision.” In short, the Framers never suggested we should have a filibuster rule, but they also never said we couldn’t have one.
The filibuster evolved piecemeal over many years. In an interview with the HPR, UC Berkeley professor Eric Schickler said, “[The filibuster] was not designed intentionally. It developed over time in part due to the absence of rules.” The filibuster can trace its heritage to 1806, when the Senate got rid of an obscure rule that would have helped the majority party retain greater control over the legislative process. Without this rule, the Senate never achieved a means to end debate, and over time, this tradition evolved into a right of free speech for every member of the Senate.
In the early 19th century, the small size of the Senate and its limited agenda made drawn-out debate pointless, but gradually the use of the filibuster expanded as a tactic for minorities to slow things down. A cloture rule, setting a certain number of senators that could override a filibuster, was only adopted after an 11-senator filibuster in 1917 put the kibosh on a popular bill to arm the U.S. Merchant Marine during WWI. Under the new rule, the Senate could cut off debate on a bill with the permission of two-thirds of its members, and in 1975, this was reduced to its current three-fifths.
THE FILIBUSTER TODAY
Thus, the filibuster itself is not new, but it has certainly become more widely used in recent years, and experts identify several factors that have contributed to this phenomenon. First, as the Senate’s workload has increased, the filibuster has become more effective. The majority can no longer afford to wait for long periods of time to pass key legislation, as was the case in 1964 when the Civil Rights Act was held up for months. Second, as Professor Sarah Binder of George Washington University told the HPR, the “ideological polarization of the two parties [means] not a lot of overlap in terms of policy proposals.” The two parties have little common ground on which to compromise, and this makes the filibuster a more attractive alternative. Third, the stigma that used to be associated with the filibuster has dissipated. According to Schickler, “People didn’t used to want to admit that they were filibustering. [Today] the idea of self-restraint, not making full use of your prerogatives, has faded away.” Indeed, many senators face the threat of primary challenges if they shy away from filibustering on those issues most important to their base constituents.
Perhaps the most important consequence of the increased use of the filibuster is that it allows both parties to “obscure accountability,” as Professor Steven Smith of Washington University in St. Louis told the HPR. It’s possible, Smith explained, for the minority to blame gridlock on the radical, partisan tendencies of the majority, while the majority, in turn, can accuse the minority of being deliberately obstructionist. For the public, then, it is difficult to see who is really at fault. In any case, if the minority can prevent the majority from achieving legislative successes, then the majority is vulnerable to accusations of incompetence and weakness, and will likely lose big in upcoming elections. Binder suggested that “cloture votes become rallying cries for parties and are treated like party tests.” In this way, the Senate has become more polarized, leading to a decline in bipartisan collegiality among members. And the polarization is self-fulfilling: both parties, when in the minority, have immediate incentives to continue with scorched-earth politics and forestall any achievements by the majority.
AVENUES OF REFORM
Despite these concerns about the abuse of the filibuster, serious reform is likely a non-starter. The main reason is simply that the Senate requires a two-thirds majority to alter its rules, an unrealistic goal for reformers considering how difficult it has become to muster the requisite three-fifths to invoke cloture. To circumvent this, some are proposing a return to the days when filibustering senators were forced to actually stand on the Senate floor and debate (or read from the phone book) for hours on end. Wawro addressed this proposal bluntly: “[It] is a ridiculous idea and ignorant of the historical development of the filibuster. Being a Senator is more than a full time job. They have far more on their plates than former Senators did.” Another possibility is the so-called “nuclear option,” in which the Senate’s presiding officer (the vice president, for instance) would nullify the rules that support the filibuster. This maneuver would require only a simple majority’s approval, but such a heavy-handed tactic may be labeled undemocratic or overly antagonistic. As Smith said, “The minority still has the opportunity to make trouble for [the majority],” and one would expect even more intense obstruction, lasting for months or years, should the nuclear option be employed. In short, full-scale reform is simply not politically feasible at this point.
Moving forward, then, the first step is to recognize the filibuster for what it is: an accident of history. It has a long and interesting past, but the founders never intended for a senator to hold up the business of the U.S. government simply because he or she can. Unfortunately, the filibuster has become so entrenched that it will require changes of heart by individual minority senators in order to effectively change the rules of the Senate.
Colin Shannon ’11 is a Staff Writer.
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