The principle of the filibuster is a sound one: Any member of the U.S. Senate may speak for any length of time, so a senator who is fiercely determined to oppose a bill may command the podium and stop other business in order to make a point of grave importance.
Used judiciously, the device prevents a narrow majority from imposing its will on a significant or determined minority. It allows passions to cool, and reinforces the Senate’s place as a deliberative body, an institution that the framers imagined might slow the more rampant and populist instincts they believed would emerge from the House of Representatives.
In practice, however, the rule - not, as many Americans think, a constitutional provision or even a law but rather merely a long-standing rule of the Senate - has been invoked with increasing frequency and has become a means of obstructing progress on a wide range of issues.
As detailed in a new report by the Brennan Center, which studies American law and justice, the filibuster has contributed to an astonishingly unproductive Senate. The current 112th U.S. Congress has enacted just 196 public laws, the lowest number of any Congress since World War II and lower than during previous periods of divided party control. In the Senate, just 2.8 percent of bills introduced have been passed, another record low in modern times. The number of cloture motions – to proceed to a vote and end a filibuster – has similarly skyrocketed. More such motions have been made in the last six years than in the 70 years prior.
Today’s filibusters bear little resemblance to those of the past. Where once filibustering senators were required to remain at the podium, speaking continuously – Sen. Strom Thurmond famously stood for more than 24 hours in his futile attempt to block the Civil Rights Act of 1957 – now they invoke it on a so-called motion to proceed. The result is that legislation is derailed without even the effort, or theater, that accompanied a lone senator’s passionate objection to a bill. And the Senate, which once halted all other business until a filibuster was resolved, now merely moves to the next matter. The modern filibuster has gone from being extraordinary – think of “Mr. Smith Goes to Washington” – to routine. And the predictable consequence is that very, very little gets done.
One response would be to eliminate the filibuster altogether. As a Senate rule, it can be changed by the majority party, and Democrats could eliminate it (though, of course, Republicans would almost certainly filibuster such a move). That, however, would also do away with the filibuster’s legitimate and historic place. Rather than eliminating the rule, the better approach would be to amend it in such a way as to preserve the ability for minorities to fight against one-party steamrolling while scaling back the filibuster’s capacity for obstructing everything.
Three reforms are worth pursuing.
First, the circuitous route traveled by most legislation through Congress offers at least half a dozen opportunities for opposing senators to filibuster a bill. As the Brennan Center report notes, permitting filibusters at each of those junctures thwarts thoughtful debate and decision-making. Senators who want to mount a filibuster should have just one chance to do so.
The center and others also have proposed reversing the burden for sustaining a filibuster. Rather than requiring the majority party to deliver 60 votes to end a filibuster, supporters of the device should be required to produce 40 votes to sustain it. That would put the burden on those who would obstruct, where it belongs, rather than those attempting to move forward.
Finally, it is time to make those who would filibuster a bill actually go through the exercise of doing so, and for the majority to cease yielding at the mere threat of it. Say what you will about Thurmond or the other opponents of civil rights, they were, at least, willing to stand up for those principles. Any senator who wants to block a bill today and is unwilling or unable to gather votes against it should have to do so by literally standing up for his principles, at a podium, reading or talking until he can stand no more.