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The Filibuster

Ins and Outs of Supermajority Rule

By | Updated April 30, 2014

The filibuster has its origins in the formative years of a nation fearful of majority tyranny. It allowed any U.S. senator to speak for as long as he chose, effectively letting individuals postpone legislative votes. By some accounts the practice grew out of a conviction that minority opinions should be guaranteed a hearing in a quintessential deliberative body. By others, it was a rule-making mistake with consequences the founders never imagined. By the 21st century the filibuster had turned Senate democracy on its head, upending the principle that most disagreements should be settled by majority vote.

The Situation

Over the objections of the chamber’s Republicans, Senate Democrats voted in November to alter its rules to let a simple majority advance nominees for appointment to courts and federal agencies. It ended a practice that effectively required a supermajority of 60 votes to cut off debate and approve presidential picks. The Senate takes history seriously and tends to change its rules by consensus. That’s why senators dubbed the filibuster vote “the nuclear option.” Senate Majority Leader Harry Reid, a Nevada Democrat, had warned for months that the increasing use of the tactic was harming the government’s ability too function. Supreme Court nominees can still be filibustered, as can legislation: This spring, Republicans blocked Democratic bills to change how the military investigates sexual assaults and to raise the minimum wage. Some cloture votes, like those two,  are designed to score political points. Many more bills simply never make it to the floor if leaders don’t see 60 votes in favor.

The Background

A visit to the Senate public gallery can dispel a few popular notions about how Washington operates. Most senators don’t even show up to hear their colleagues debate a bill. Another myth is that vote-blocking requires senators to talk to the point of exhaustion, as Jimmy Stewart did in the film “Mr. Smith Comes to Washington.” Though Hollywood portrayed the filibuster as democracy in action, it has often been deployed to frustrate majority rule, or simply to rally supporters, as when Senator Strom Thurmond of South Carolina stood on the floor for 24 hours and 18 minutes in 1957 in an unsuccessful bid to stop a civil rights bill. He has been followed more recently by Kentucky Senator Rand Paul, who held the floor for 12 hours and 52 minutes in March to slow the vote appointing John Brennan as director of the Central Intelligence Agency to protest the use of drones. (Texas Republican Ted Cruz’s 21-hour-and-19-minute philippic against Obamacare in September wasn’t technically a filibuster because it didn’t block Senate business.) Since the 1970s, the mere threat to filibuster has been enough to bring things to a halt. The notion of requiring a supermajority of senators to proceed to a vote, the so-called cloture rule, dates to President Woodrow Wilson in 1917. Since then there have been 1,300 filibusters, almost half of them taking place since 2000. Before the change in rules, Reid said that half of the 168 nominees delayed in the Senate since the nation’s founding were chosen by President Barack Obama.

The Argument

Obama applauded Reid’s move, repeating the Senator’s charge by saying that Republicans had engaged in an “unprecedented pattern of obstruction” in the upper chamber. The blocking mechanism isn’t part of the Constitution’s provision requiring the Senate’s “advice and consent” on nominations, as it says in Article II. Republicans counter that the action sets a dangerous precedent, allowing the majority party to run roughshod over the minority. Tennessee Senator Lamar Alexander, who is among the less partisan Republicans, called the curbing of the filibuster the biggest change in Senate rules since Thomas Jefferson wrote them more than two centuries ago. It’s clear that the Senate’s shakeup did not mark an end to partisan passions.

The Reference Shelf

  • A report from the Congressional Research Service on filibusters and cloture.
  • The Senate’s page on the history of the filibuster.
  • A report from the Brennan Center for Justice examines what it calls “Filibuster Abuse.”
  • Sara Binder of the Brookings Institution looks at the history of filibuster fights.
  • An analysis on the effect of the filibuster on the operations of the Senate by Prof. Gregory Koger of the University of Miami.
  • Politico has a slideshow on the longest filibusters.
  • Video of a Heritage Foundation talk with the co-authors of “Defending the Filibuster.”
  • A 2005 Harvard law journal article gives a detailed account of the filibuster’s evolution as well as methods of reining it in.
  • A Pew Research Center survey found that few Americans were well informed about filibusters.
  • A New York Times article from 1891 compared cloture rules in the U.S. Senate and the British Parliament.

(First published Nov. 21, 2013)

To contact the writers of this QuickTake:

Jim Snyder in Washington at jsnyder24@bloomberg.net

Laura Litvan in Washington at llitvan@bloomberg.net

 

To contact the editors responsible for this QuickTake:

David Ellis at dellis5@bloomberg.net

Jonathan I. Landman at jlandman4@bloomberg.net