Maybe this title is a bit of a hyperbole. But in a recent interview, Speaker Pelosi gives the impression that filibusters are beginning to irk her. Pelosi’s statements are hardly out of step with her Democratic colleagues or majorities in general. Majority parties have had serious issues with the filibuster, particularly in the past four Congresses. As their frustration builds Democrats are more frequently hinting at filibuster reform. The million dollar questions is: are the Democrats playing politics or are they really eyeing Senate reform?
Recent Senate proceedings suggest the latter. Over the past couple months Senate Committee on Rules chairman, Chuck Schumer (NY), has held hearings examining the filibuster’s history and purpose. The witnesses included two well known congressional scholars, Sarah Binder and Gregory Wawro, along with two senior Senate parliamentarians, Robert Dove and Stanley Bach. Their testimonies were poignant and illuminated several aspects of the filibuster’s history probably unknown to sitting senators. However, the senators’ interest in the filibusters history was not strictly historical. Their questioning evolved from, “how has the filibuster been used in the past?” to, “we can eliminate the filibuster at the next Congress by not renewing the rules?”
Despite the committee’s changing interest in the witnesses’ testimonies, Stanley Bach offered a pointed question: “Why do Senators filibuster?” As Bach notes, the answer is likely one of two options. Either senators want legislative concessions from the majority or they want no legislation at all. Bach says he can support the filibuster if the objective is legislative moderation in favor of the minority. He cannot, however, endorse a filibuster meant to stop all legislation in its tracks.
The problem is that filibusters, and filibuster threats, effectively achieve both goals at once. It’s difficult to part one objective from the other. Filibusters will not hold much weight if you condition your filibuster with, “I just want an amendment added to the bill.” Similarly, nested within contemporary politics, filibusters are increasingly viewed as obstructionist politics. Politicians and commentators alike echo the idea that minorities are only trying to gain electoral advantage. By stopping the process completely, they’ve achieved their primary, and some say, only goal. This is when we slip back into the contemporary dichotomy of winning elections v. governing. At best, these arguments are depressing.
So which is it? Are filibusters principled examples of opposition or merely political tactics aimed at electoral advantages? To an extent they are probably both but in recent years the data appear to point toward politics. Over the past two decades, cloture motions – votes to cut off debate – have increased 110%. Since the 1960s, cloture votes have increased 1453% (no, not an exaggeration. See page 8 of Bach’s testimony linked above). Some of this increase is due to changes in majority tactics. Majority parties have increasingly used Rule 22 to cut off debate as opposed to the old-school tactic of attrition (Attrition was used more often in the 20s-60s. The majority would simply force the minority member to speak continuously until he became too tired. Strom Thurmond is probably the best known abuser of unlimited debate. In an attempt to block civil rights legislation he would systematically dehydrate himself. Needless to say, he holds the record are 24 hours 18 minutes.). Personally, I’d love to see more of these. If you really disagree with something, prove it by standing and talking for 15 hours at a time. And perhaps not surprisingly, after Schumer’s April hearing highlighting the history of the filibuster, Democrats rolled out cots outside the Senate doors after Republicans threatened a filibuster.
In all likelihood, the increased use of unlimited and cloture votes have put the filibuster in between the crosshairs. Minorities are eager to slow the process and majorities are increasingly eager to shut them up as quickly as possible. Regardless, in the past five years the filibuster has come under attack from both Democrats and Republicans. I’d be surprised if the Senate completely changed cloture to a pure majority vote. I think their are enough “institutionalists” in the Senate to prevent this type of reform. However, I would not be surprised to see the rule altered in this Congress or the next. The Senate could possibly revert back to pre-1975, using 3/5ths of those “present and voting” to cut off debate – potentially reducing the number of senators needed to invoke cloture. What is more certain though is the abuse of Rule 22 has become a universal characteristic of Senate minorities. As long as this remains the norm, the filibuster will continue to attract the wrong kind of attention.