It's Like Arithmatic The Way I Make It Stick
So. You're a new Senator, and you want to know about filibustering, eh? Want to be able to hold up legislation indefinitely, in theory? Want to be able to stop the government dead in its tracks? You're saying to yourself, how do I exercise my procedural right to require supermajorities on everything? Well, my good chum, you're in luck, because I happen to know about filibustering. Sit right back and let me, your close friend and confidant, explain things to you.
The word "filibuster" itself comes from Dutch, by way of French and then Spanish (vrijbuiter to filibustier to filibustero), originally meaning "freebooter." The tactic was so named because it was seen as a way of hijacking/pirating the debate.
"Ok," you say, "so that's where the word comes from, but what does it actually MEAN?" I'm glad you asked. The actual practice dates back to Republican Rome, specifically Cato the Younger, who took advantage of Roman Senate rules requiring Senate business conclude by nightfall. By talking, quite literally, all day, Cato was able to prevent votes on proposals he found offensive, for whatever reason. Specifically, he used it to try to dick over Julius Caesar on two occasions. The first time, he successfully forced Caesar to choose between his triumph and becoming consul by preventing the Senate from voting on Caesar's proposal to convene Senatorial election of consul in his absence (Caesar became consul). The second was in response to a land-reform bill that ended with Caesar jailing Cato (briefly) before circumventing the Senate entirely by taking the bill to the Tribal Assembly (Roughly equivalent to the House of Representatives)
"Hold on a minute, Mr. English," I hear you grumble. What does any of that have to do with the U.S. Senate? Well, I don't know if you've been paying attention, but these days, it seems like EVERYTHING is getting filibustered. Everything from judicial nominees to executive branch appointments to health care bills to war spending to the budget. What's the problem, you say? Shouldn't the minority be able to exert some influence over the national dialog? The problem, you see, is that filibustering wasn't always the norm. Time was, it was reserved only for the most extreme cases. Of course, time was, filibusters couldn't be cut off, but if you wanted to filibuster you actually had to be present and speaking on the Senate floor. Over time, that all changed, culminating with the advent and subsequent proliferation of the procedural filibuster.
Bear with me, though, because it's worth knowing how the procedural filibuster came into being. In 1789, the Senate had rules which allowed it to "move the previous question," but thanks to Aaron Burr (famed for his duel with Alexander Hamilton), the rules were changed, as such a procedure was seen as "redundant." This allowed for theoretically unlimited debate, and quickly came to be seen as a Senatorial right. Originally, the House of Representatives had similar traditions, but the growing size of the plebeian representation made unlimited debate impractical relatively quickly and rules were implemented to limit discussion time in 1842. In 1841, Democratic* Senators filibustered a bill sponsored by Henry Clay, which would have created a national bank system. This was the first time a filibuster had become anything but theoretical, and Clay attempted to change the rules to allow for cloture, but ended up failing, being rebuked for trying to eliminate the right to unlimited debate, as well as having the bill vetoed by President Tyler. Procedures for cloture wouldn't come until 1917 under Woodrow Wilson, when the Senate adopted Rule 22 (unrelated to Catch-22), providing for ending of debate with the consent of 2/3 of those present. Cloture was invoked for the first time two years later to end a filibuster against the Treaty of Versailles, but the two-thirds requirement kept filibusters effective.
We still haven't gotten to procedural filibusters, yet, but we're getting there. In the mid-20th century, filibusters were used primarily by Southern Senators (of both parties) to block civil rights legislation (see: Strom Thurmond's 24.3 hour filibuster in 1957, the filibusters against the creation of a permanent Fair Employment Practices Commission, etc). Even then, they were fairly rare, as the Senator or coalition of Senators who were actively filibustering were still required to speak on the floor. Think Mr. Smith Goes To Washington and you've got the idea. In fairness, there were more liberal members of the Senate who also made extensive use of the tactic, notably Huey Long (D-LA), who tended to used the filibuster to hold up bills that he thought favored the rich over the poor, though his 15.5 hour filibuster was a bid to retain oversight on the NRA (National Recovery Administration) so he could prevent political rivals from getting jobs in said administration. Basically, it's always been an obstructionist tool; a political rather than a policy tactic.
Finally, we're get to the modern era. Finally this weird Kraut is going to stop haranguing me about filibustering. Hold your horses. We've finally gotten to the rule changes that allowed for that procedural filibuster I mentioned at the beginning of this little diatribe. In 1975, the Democrats had a 61-seat majority, and managed to amend Senate Rule 22 to require only 3/5 majority, as opposed to 2/3. As a compromise with those who opposed the rule change (such as the Senators from Missouri)**, instead of "2/3 of those voting" it was changed to "3/5 of those duly chosen and sworn," meaning that no matter how many Senators were present, cloture now requires 60 Senators (unless there are two or more empty Senate seats). Additionally, rule changes allowed filibusters to be "invisible." Rather than actually getting up and speaking for hours on end (prevented from eating, sleeping, leaning on anything or going to the bathroom), the Senate allowed for simple declaration of intent to filibuster.
To illustrate: consider the opening scene in The Hitchhiker's Guide To The Galaxy. Arthur Dent is lying in front of a bulldozer in order to prevent the demolition of his house when Ford Prefect shows up and proposes that, since all parties concerned can assume that Arthur will be lying in front of the bulldozer all day, the delay can be conducted in absentia. It's not a precise analogy, but this is what the filibuster has been reduced to: declaring that you are ready to lie down in the mud, so why don't we all just move along and save everyone the trouble?
While this sounds good in theory, when you don't have to actually have to put in the work to get the same result, that result becomes a lot more tempting. Simple economics, really: if the price of a good/service drops, then you move further out along the supply curve. By making filibustering easier, in other words, the geniuses in the Senate guaranteed that there would be more of them. The result was fairly predictable, and you can get a nice little illustration of the trend here. The trend line is pretty clear, until you get to the projected number of cloture votes for the 110th Congress (the actual number of cloture motions was 139; in the past 6 months, 30 cloture motions have been filed).
"Whoa!" you say. What the hell happened? Simple. The 2006 elections happened. The balance of power was swung in both houses of Congress, and as soon as the GOP found itself out of the majority, it started filibustering pretty much every bill that hit the floor, hence the "Party of 'No'" label that's been floating around. If they can't outright kill the Democrats' proposed legislation in committee anymore, Republicans are going to try their damnedest to make any and all reform die a slow death by suffocation.
"But Mr. English!" I hear you ask. "Why aren't they forced to actually get up on the floor and talk? Is that even possible under the new rules?"
Why, yes. Yes it is. The Senate Majority Leader has discretion as to whether the minority actually has to go through with a threatened filibuster or whether the Senate can just assume that a filibuster has happened and move directly on to cloture. In practice because a) requiring an actual filibuster would be "unseemly," b) no one really wants to sit through an actual filibuster, c) it consumes massive amounts of time, which is always in short supply on the Senate floor, and d) Harry Reid is tremendously ineffective and spineless, none of the threatened filibusters have ever been carried out. Regardless, it's had the desired effect of slowing government to a crawl.
And before you ask, yes, there was a "nuclear option" on the table to try to limit filibustering a few years back. Specifically, Democrats were filibustering a couple of Bush's judicial nominees, and Republicans were publicly livid. "Up or down vote!" was a pretty common talking point. The nuclear option was a proposed rule amendment allowing the majority to cut off debate, rather than the 3/5 majority currently required. They failed, and once the balance of power reversed, they suddenly discovered how very wonderful the filibuster was, like a kid rediscovering a favorite toy. The fun bit is that they've not only applied it to proposed legislation, but also to pretty much every single Cabinet-level nominee that's crossed the plate, meaning they're obstructing governmental functioning on both the legislative and executive stages.
The point to all of this is that the Senate is (surprise) broken and desperately needs some sort of reform,*** the Democratic leadership is (surprise) being spineless and Republicans are (surprise) hypocritically abusing the very procedural rules they once considered eliminating. The real cherry on top is that the GOP has then been accusing Congress of being ineffectual while simultaneously insisting that requiring supermajorities on every piece of major legislation is in keeping with historical precedent. In other words: the GOP is pulling shenanigans that are threatening to shut down the government in the midst of two wars, a severe economic depression and a burgeoning health care crisis, and the Democrats, despite winning sweeping victories in both houses, are rolling over and letting them get away with it. All thanks to the magic of the filibuster!
*As a side note, the modern Democratic and Republican parties bear almost no resemblance to their pre-Civil War incarnations. Reconstruction and the Civil Rights movement did all kinds of interesting things to the American political landscape, but that's a subject for another post.
**I have no idea whether this bit is actually true or not.
***Personally, I suggest starting by eliminating the possibility of filibustering Cabinet appointees.
The more you know!
The word "filibuster" itself comes from Dutch, by way of French and then Spanish (vrijbuiter to filibustier to filibustero), originally meaning "freebooter." The tactic was so named because it was seen as a way of hijacking/pirating the debate.
"Ok," you say, "so that's where the word comes from, but what does it actually MEAN?" I'm glad you asked. The actual practice dates back to Republican Rome, specifically Cato the Younger, who took advantage of Roman Senate rules requiring Senate business conclude by nightfall. By talking, quite literally, all day, Cato was able to prevent votes on proposals he found offensive, for whatever reason. Specifically, he used it to try to dick over Julius Caesar on two occasions. The first time, he successfully forced Caesar to choose between his triumph and becoming consul by preventing the Senate from voting on Caesar's proposal to convene Senatorial election of consul in his absence (Caesar became consul). The second was in response to a land-reform bill that ended with Caesar jailing Cato (briefly) before circumventing the Senate entirely by taking the bill to the Tribal Assembly (Roughly equivalent to the House of Representatives)
"Hold on a minute, Mr. English," I hear you grumble. What does any of that have to do with the U.S. Senate? Well, I don't know if you've been paying attention, but these days, it seems like EVERYTHING is getting filibustered. Everything from judicial nominees to executive branch appointments to health care bills to war spending to the budget. What's the problem, you say? Shouldn't the minority be able to exert some influence over the national dialog? The problem, you see, is that filibustering wasn't always the norm. Time was, it was reserved only for the most extreme cases. Of course, time was, filibusters couldn't be cut off, but if you wanted to filibuster you actually had to be present and speaking on the Senate floor. Over time, that all changed, culminating with the advent and subsequent proliferation of the procedural filibuster.
Bear with me, though, because it's worth knowing how the procedural filibuster came into being. In 1789, the Senate had rules which allowed it to "move the previous question," but thanks to Aaron Burr (famed for his duel with Alexander Hamilton), the rules were changed, as such a procedure was seen as "redundant." This allowed for theoretically unlimited debate, and quickly came to be seen as a Senatorial right. Originally, the House of Representatives had similar traditions, but the growing size of the plebeian representation made unlimited debate impractical relatively quickly and rules were implemented to limit discussion time in 1842. In 1841, Democratic* Senators filibustered a bill sponsored by Henry Clay, which would have created a national bank system. This was the first time a filibuster had become anything but theoretical, and Clay attempted to change the rules to allow for cloture, but ended up failing, being rebuked for trying to eliminate the right to unlimited debate, as well as having the bill vetoed by President Tyler. Procedures for cloture wouldn't come until 1917 under Woodrow Wilson, when the Senate adopted Rule 22 (unrelated to Catch-22), providing for ending of debate with the consent of 2/3 of those present. Cloture was invoked for the first time two years later to end a filibuster against the Treaty of Versailles, but the two-thirds requirement kept filibusters effective.
We still haven't gotten to procedural filibusters, yet, but we're getting there. In the mid-20th century, filibusters were used primarily by Southern Senators (of both parties) to block civil rights legislation (see: Strom Thurmond's 24.3 hour filibuster in 1957, the filibusters against the creation of a permanent Fair Employment Practices Commission, etc). Even then, they were fairly rare, as the Senator or coalition of Senators who were actively filibustering were still required to speak on the floor. Think Mr. Smith Goes To Washington and you've got the idea. In fairness, there were more liberal members of the Senate who also made extensive use of the tactic, notably Huey Long (D-LA), who tended to used the filibuster to hold up bills that he thought favored the rich over the poor, though his 15.5 hour filibuster was a bid to retain oversight on the NRA (National Recovery Administration) so he could prevent political rivals from getting jobs in said administration. Basically, it's always been an obstructionist tool; a political rather than a policy tactic.
Finally, we're get to the modern era. Finally this weird Kraut is going to stop haranguing me about filibustering. Hold your horses. We've finally gotten to the rule changes that allowed for that procedural filibuster I mentioned at the beginning of this little diatribe. In 1975, the Democrats had a 61-seat majority, and managed to amend Senate Rule 22 to require only 3/5 majority, as opposed to 2/3. As a compromise with those who opposed the rule change (such as the Senators from Missouri)**, instead of "2/3 of those voting" it was changed to "3/5 of those duly chosen and sworn," meaning that no matter how many Senators were present, cloture now requires 60 Senators (unless there are two or more empty Senate seats). Additionally, rule changes allowed filibusters to be "invisible." Rather than actually getting up and speaking for hours on end (prevented from eating, sleeping, leaning on anything or going to the bathroom), the Senate allowed for simple declaration of intent to filibuster.
To illustrate: consider the opening scene in The Hitchhiker's Guide To The Galaxy. Arthur Dent is lying in front of a bulldozer in order to prevent the demolition of his house when Ford Prefect shows up and proposes that, since all parties concerned can assume that Arthur will be lying in front of the bulldozer all day, the delay can be conducted in absentia. It's not a precise analogy, but this is what the filibuster has been reduced to: declaring that you are ready to lie down in the mud, so why don't we all just move along and save everyone the trouble?
While this sounds good in theory, when you don't have to actually have to put in the work to get the same result, that result becomes a lot more tempting. Simple economics, really: if the price of a good/service drops, then you move further out along the supply curve. By making filibustering easier, in other words, the geniuses in the Senate guaranteed that there would be more of them. The result was fairly predictable, and you can get a nice little illustration of the trend here. The trend line is pretty clear, until you get to the projected number of cloture votes for the 110th Congress (the actual number of cloture motions was 139; in the past 6 months, 30 cloture motions have been filed).
"Whoa!" you say. What the hell happened? Simple. The 2006 elections happened. The balance of power was swung in both houses of Congress, and as soon as the GOP found itself out of the majority, it started filibustering pretty much every bill that hit the floor, hence the "Party of 'No'" label that's been floating around. If they can't outright kill the Democrats' proposed legislation in committee anymore, Republicans are going to try their damnedest to make any and all reform die a slow death by suffocation.
"But Mr. English!" I hear you ask. "Why aren't they forced to actually get up on the floor and talk? Is that even possible under the new rules?"
Why, yes. Yes it is. The Senate Majority Leader has discretion as to whether the minority actually has to go through with a threatened filibuster or whether the Senate can just assume that a filibuster has happened and move directly on to cloture. In practice because a) requiring an actual filibuster would be "unseemly," b) no one really wants to sit through an actual filibuster, c) it consumes massive amounts of time, which is always in short supply on the Senate floor, and d) Harry Reid is tremendously ineffective and spineless, none of the threatened filibusters have ever been carried out. Regardless, it's had the desired effect of slowing government to a crawl.
And before you ask, yes, there was a "nuclear option" on the table to try to limit filibustering a few years back. Specifically, Democrats were filibustering a couple of Bush's judicial nominees, and Republicans were publicly livid. "Up or down vote!" was a pretty common talking point. The nuclear option was a proposed rule amendment allowing the majority to cut off debate, rather than the 3/5 majority currently required. They failed, and once the balance of power reversed, they suddenly discovered how very wonderful the filibuster was, like a kid rediscovering a favorite toy. The fun bit is that they've not only applied it to proposed legislation, but also to pretty much every single Cabinet-level nominee that's crossed the plate, meaning they're obstructing governmental functioning on both the legislative and executive stages.
The point to all of this is that the Senate is (surprise) broken and desperately needs some sort of reform,*** the Democratic leadership is (surprise) being spineless and Republicans are (surprise) hypocritically abusing the very procedural rules they once considered eliminating. The real cherry on top is that the GOP has then been accusing Congress of being ineffectual while simultaneously insisting that requiring supermajorities on every piece of major legislation is in keeping with historical precedent. In other words: the GOP is pulling shenanigans that are threatening to shut down the government in the midst of two wars, a severe economic depression and a burgeoning health care crisis, and the Democrats, despite winning sweeping victories in both houses, are rolling over and letting them get away with it. All thanks to the magic of the filibuster!
*As a side note, the modern Democratic and Republican parties bear almost no resemblance to their pre-Civil War incarnations. Reconstruction and the Civil Rights movement did all kinds of interesting things to the American political landscape, but that's a subject for another post.
**I have no idea whether this bit is actually true or not.
***Personally, I suggest starting by eliminating the possibility of filibustering Cabinet appointees.
The more you know!