The Huffington Post
February 15, 2013
The filibuster is a procedural tactic used in the United States Senate to stall or block new legislation.
In the classic 1939 movie “Mr. Smith Goes to Washington,” a reporter called it “democracy’s finest show,” the “American privilege of free speech in its most dramatic form.” The nature and frequency of filibusters has changed since then.
The increased use of the tactic, which had previously been rare, is part of the procedural warfare that has reached a zenith over the past two years in the Senate. Republicans threaten to filibuster and propose politically charged amendments, Democrats block Republican amendments through a technique know as “filling the tree,’' and Republicans filibuster in retaliation.
The tactic was initially intended to speed passage of bills but has instead slowed them down. The Senate — the legislative body that was designed as the saucer to cool the House’s tempestuous teacup — has become a deep freeze, where even once-routine matters have become hopelessly stuck and a supermajority is needed to pass almost anything.
In 2011 and 2013, frustrated young Democratic senators pushed hard for changes to make filibusters harder and therefore rarer, and argued that on when a newly elected set of senators convene for the session’s first meeting, the Senate’s rules could be changed by a simple majority vote.
In 2011, the majority leader, Senator Harry Reid, a Nevada Democrat, considered the proposals only briefly before striking a gentleman’s agreement with the minority leader, Mitch McConnell of Kentucky, that was supposed to make it easier in particular to bring presidential nominees to a final vote.
At the start of 2013, with the chamber if anything more gridlocked, Mr. Reid spoke at length about the need for significant filibuster reform. But he then went on to make a deal with Mr. McConnell for more modest changes. Senior Democrats had warned against going as far as some younger members wanted, warning that the minority’s rights should be preserved for the day control of the chamber changes hands, and that using a majority vote to alter the Senate rules — the so-called nuclear option — could produce outright partisan warfare.
Mr. Reid extended the formal first day of the session by more than three weeks to buy time for negotiations that ultimately led to a deal with two main parts. First, in a concession from Republicans, the majority party — Democrats currently — would no longer have to marshal 60 votes in order for debate on a bill to proceed. But, in turn, Democrats would have to agree to allow Republicans two amendments to the bill.
The reformers had wanted a requirement that senators be present on the Senate floor when they want to block a bill from coming to a vote, continuing the practice of allowing them to filibuster in absentia.
Doing almost anything in the Senate today requires 60 votes, because Republicans, who will have 45 seats when the Senate convenes in 2013, are blocking even procedural motions to begin debating bills or considering nominations. The act of doing so is commonly called a filibuster, although it no longer requires holding the Senate floor for hours.
Both parties bear some responsibility for the changes, experts say, though not in the same precise ways.
Before 1917, senators could delay final votes on legislation by holding the floor and talking. There was no mechanism to stop them, but such filibusters were rare until the debates surrounding entry into World War I. In 1917, the Senate adopted its first “cloture” rule: two-thirds of the Senate could cut off debate on a bill and force a final vote.
Between 1917 and 1971, no session of Congress had more than 10 such votes in its two years. Still, filibusters were common enough that in 1971, Mr. Byrd, a master of Senate procedure, shifted the rules to allow the Senate to take up other legislation during a filibuster.
That change began an escalation of tactics, in which both delays and attempts at circumventing delays have become more common, with one often leading to more of another. Moves by the minority to obstruct bills elicited responses from the majority worsening the environment.
In the 93rd Senate, which met in 1973 and 1974, the number of cloture motions filed — a rough measure of filibuster threats — jumped to 31, from an average of fewer than two per Congressional term between 1917 and 1970. Throughout much of the next two decades, cloture votes continued to rise, regardless of which party was in the minority, with many such motions filed in anticipation of filibusters.
But the current Republican minority has taken the practice to a new level. During the past three sessions of Congress, the majority leader has resorted to an average of 129 cloture motions, a near doubling from the level when Democrats were in the minority from 2003 to 2007.
The current Democratic majority has contributed to the parliamentary tit-for-tat, by filling the tree more than in any previous Congress. It has done so over 20 times in each of the last three sessions of Congress. The previous high had been 11, under Republican leadership in 2005 and 2006.
Senators from both parties agree that one cause of the trends is the ease with which lawmakers can now bring the institution to a halt. Once the Senate found a way to move on to other business while a bill was being filibustered, senators faced little personal pressure against mounting one. And when the number of votes needed to break a filibuster dropped to 60 in 1975, from 67, the Senate minority could claim that this change allowed for reasonable bipartisan compromise.
But there have been major cultural shifts as well, past majority leaders and academics say. Lyndon B. Johnson once said the Senate was an ecosystem of whales and minnows. Get the few whales and the minnows follow.
The advent of C-Span 2, which put cameras in the Senate in 1986, helped turn all the minnows into whales in their own right. The influx of House Republicans in the 1990s, steeped in the partisan fights of Newt Gingrich, furthered the shift. Republicans and Democrats alike point to a moment in the 1990s when Rick Santorum, then a Republican senator from Pennsylvania and a former House warrior, refused to yield the floor to a colleague when asked, a refusal almost unheard of in the Senate.
The battles over procedure themselves helped corrode the environment. Talk of the “nuclear option” began almost a decade ago, in President George W. Bush’s first term. With Democrats thwarting Mr. Bush’s judicial nominees, Senator Bill Frist of Tennessee, the Republican majority leader, considered overriding filibusters with a majority vote. Mr. Reid, then the minority leader for the Democrats, fought back. “We believe in following the rules, not breaking the rules,” he said. “It will change the Senate forever, and that is not good.”
Ultimately, the two parties averted a larger confrontation by a gentlemen’s agreement to filibuster judicial nominees under only the most egregious circumstances, as when a nominee is overly partisan or obviously unqualified. In Mr. Bush’s first term, the Senate approved 89 percent of his judicial nominees. The rate fell to 74.5 percent in his second term, and was 75.5 percent in Mr. Obama’s first term.
How the Filibuster Was Born
What is the good of a tradition whose essence is wasting time? Many historians and congressional scholars respond that the filibuster is a valuable check against the passage of ill-considered legislation.
The word filibuster is derived from the Dutch vrijbuiter, or pirate. Passed down through French and Spanish, “filibuster” landed in Congress in the mid-19th century as a tongue-in-cheek label for a senator whose interminable speech held a bill, not to mention his colleagues, hostage.
Those changes introduced what maybe the era of the classic filibuster, as recorded in “Mr. Smith Goes to Washington.’' When it comes to filibusters, perhaps no performance exceeded that of the populist Democratic senator, Huey P. Long, of Louisiana. Hoping to stave off a bill that would have given his political enemies at home lucrative New Deal jobs, Mr. Long took the floor on June 12, 1935. He read the Constitution and the plays of Shakespeare. He offered up a recipe for fried oysters and a formula for Roquefort dressing. He asked his exhausted colleagues to suggest topics for his monologue. When they wouldn’t oblige, he invited reporters in the press gallery to pass down suggestions.
Only at 4 a.m. did the urgent call of nature put an end to Mr. Long’s 15-hour soliloquy. Yet this is not the Senate record. That dubious honor belongs to Senator Strom Thurmond of South Carolina, who held up the 1957 civil rights bill for a brain-numbing 24 hours and 18 minutes.
Sarah A. Binder, a political scientist at George Washington University and co-author of a book on the filibuster, said that both the House and Senate began work in 1789 with a measure called a “previous question motion” that required only a simple majority to cut off debate. The House has kept such a rule to the present day.
But the Senate dropped it in an 1806 housecleaning without fully understanding the implications, she said.
As early as 1841, a frustrated Senator Henry Clay of Kentucky threatened to try to change the debate rules when opponents tied up his banking bill with interminable talk. But the Senate finally adopted a formal means of ending a filibuster only in 1917, at the urging of President Woodrow Wilson.
Infuriated by the failure of Congress to act on war measures, Mr. Wilson fumed. “A little group of willful men,” he declared, “representing no opinion but their own, have rendered the great government of the United States helpless and contemptible.”
With that push, the Senate decided that a two-thirds vote could cut off a filibuster, borrowing the French parliamentary term “clôture” for such a motion. In 1975, the Senate cut the required vote for cloture to three-fifths, or 60 senators, instead of 67.
At about the same time, the Senate created a two-track process that allows senators to block action on a piece of legislation merely by invoking the right to filibuster, without actually having to stand before the chamber and drone endlessly on. Meanwhile, the Senate can take up other business.
The measure, intended to promote efficiency, inadvertently encouraged filibusters by making them painless, and made them a normal tool of political debate. In 1995, almost 44 percent of all major legislation considered by the Senate was delayed by a filibuster or the threat of one.
The filibuster has at times symbolized, justifiably or not, the courageous stand of principled individuals against a corrupt or compromised majority. That symbolism was captured in “Mr. Smith Goes to Washington,” the classic Frank Capra film in which James Stewart plays a naïve newcomer who holds the Senate hostage for longer even than Strom Thurmond did, before collapsing in fatigue and triumph.
Such iconography is so powerful that, even as he attacked the Democrats’ filibustering in 2005, Bill Frist, the former Republican Senate majority leader, praised the movie and what it represented. “The right to talk — the right to unlimited debate — is a tradition as old as the Senate itself,” Dr. Frist said. “It’s unique to the institution. It shapes the character of the institution. It’s why the United States Senate is the world’s greatest deliberative body.”
Dr. Frist threatened to try to ban filibusters against judicial nominees through what became known as the “nuclear option.” That led to the so-called Gang of 14 agreeing to a compromise on review of judges.
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SEARCH 610 ARTICLES ABOUT FILIBUSTERS AND DEBATE CURBS:
The Times’s Megan Liberman and Diana Kasdan of the Brennan Center for Justice discuss the prospects for filibuster reform.
The Times’s Megan Liberman and Diana Kasdan of the Brennan Center for Justice discuss the prospects for filibuster reform.