The Senate Killed the Filibuster to Save Itself

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Nov. 26 (Bloomberg) -- Heritage Action, the angry conservative id that has swallowed the Heritage Foundation (and much of the House Republican Conference) whole, just announced that it will treat Janet Yellen’s nomination for chairman of the Federal Reserve as a “key” vote. The designation is intended to pressure Republican senators, who presumably risk being labeled soft on monetarism if they vote to elevate Yellen.

A week ago, this might’ve been big news. Today? Yawn.

In the interim, use of the filibuster in executive-branch nominations was eliminated. Yellen’s nomination now needs 51 votes to succeed, not 60 -- a threshold she can pass without a single Republican vote. But Heritage’s announcement is a good window into both why the rule was changed and how the Senate will work in the future.

Traditionally, the majority party was loath to alter the filibuster for fear of the consequences once it inevitably returned to the minority. But Senate Democrats, after having watched Republican colleagues repeatedly fold in the face of conservative pressure groups such as Heritage Action, stopped believing that Republicans would retain the filibuster when they returned to the majority. “There was an absolute belief that Republicans will do this when they get in charge,” said Brad Woodhouse, president of the liberal Americans United for Change.

Many Democrats thought Republicans were basically daring them to change the filibuster. A deal worked out in July by Senate leaders Harry Reid and Mitch McConnell barred filibusters against executive-branch nominees except in extraordinary circumstances. Then, on Oct. 31, Republicans filibustered the nomination of Representative Mel Watt to lead the Federal Housing Finance Agency, which supervises Fannie Mae and Freddie Mac. Republicans said Watt -- who’d served on the House Financial Services Committee, including its housing subcommittee, since 1993 -- was unqualified. “A good man up for the wrong job,” said Republican Senator Lamar Alexander.

Everyday Obstruction

If this sounds like the most boring dispute in Senate history, well, it probably is. But the small stakes are exactly why it proved consequential. Veteran senators with strong institutional loyalties, including Majority Leader Reid, Senate Finance Committee Chairman Max Baucus, Intelligence Committee Chairman Dianne Feinstein and Judiciary Committee Chairman Patrick Leahy, were never comfortable with calls to abolish the filibuster to pass major legislation such as the health-care bill. They viewed that as overreach, a violation of Senate traditions.

But the Republicans’ everyday obstruction, including the filibuster of Watt’s nomination, convinced them that Republican tactics were undermining the Senate. Reforming the filibuster, they came to believe, was not a power grab. Instead, it began to look like the bare minimum required to keep the chamber functioning.

The model Senate of the 20th century, which members of both parties say they yearn for, was the high-functioning product of a delicate balance. Senate Rule XXII stated that it took 60 votes to shut down a filibuster and 67 votes to change the rules on filibusters. Undergirding it was the Constitution, which makes it clear the rules can be changed by simple majority vote. In practice, the majority honored Rule XXII, acting as if 67 votes were required to change the rules. Meanwhile, the minority recognized that the Constitution actually reigned supreme, allowing rules to be changed with 51 votes. As a result, it took care not to abuse its filibuster powers.

Finding Balance

For most of the 20th century, the filibuster was seldom used. Its most significant and sustained application was as the South’s parliamentary defense against civil-rights laws. Precisely because they valued the filibuster so much, Southern senators used it rarely. There was a “tradition of southern senators who believed that in order for the filibuster to be respected on matters of great significance, it must be exercised with restraint at other times,” political scientist Steven Smith wrote in his forthcoming book, “The Senate Syndrome.”

In recent decades, however, that restraint broke down. There is no perfect gauge of the filibuster’s abuse. The most common measuring stick is cloture votes, which are used to break filibusters. By this measure, there were more filibusters in 2009 and 2010 then in the 1950s, 1960s and 1970s combined. But cloture votes miss the many filibusters the majority party doesn’t bother trying to break. It also doesn’t account for the legislation kept off the floor by the mere threat of a filibuster. Many political scientists have argued that, in the contemporary Senate, measuring filibusters is superfluous. In practice, everything is filibustered.

For Senate Democrats mindful of institutional history, the filibuster against Watt proved just how unbalanced the Senate had become. Subject to a minority unwilling to act with restraint, the majority was no longer willing to place so many checks on its own power.

The question now is whether other impediments to majority rule -- filibusters against legislation, for example -- will also be cast aside. In June, Minority Leader McConnell warned that if the Democrats went “nuclear” on nominations, Republicans would go nuclear on everything. “I wouldn’t be able to argue, a year and a half from now if I were the majority leader, to my colleagues that we shouldn’t enact our legislative agenda with a simple 51 votes, having seen what the previous majority just did. I mean there would be no rational basis for that.”

McConnell is right: There would be no rational basis for that. Just as there is no rational basis for maintaining rules requiring routine cooperation between parties in a polarized era in which such cooperation is especially difficult.

We are entering a scary new era in American politics, but scaling back the filibuster will ease the transition. The Senate is finding a new balance.

(Ezra Klein is a Bloomberg View columnist.)

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