When the 112th Congress convenes on Wednesday one of the first orders of business in the Senate will be to set the rules of debate for the new term. This seemingly routine bit of parliamentary housekeeping will be a lightning rod for partisan contention, dividing Democrats and Republicans over filibuster reform.
The story so far: At the close of the last session, every returning Senate Democrat signed a letter to Majority Leader Harry Reid (D-Nevada) calling for filibuster reform. Under Senate procedures, a two-thirds vote is ordinarily required to change the rules. But a procedural loophole makes it possible on the first day of a new term to adopt new rules by a majority vote, a procedure that the Republican minority rejects.
The filibuster rule is by definition a partisan issue, but one defined less by party label than by shifting electoral fortunes and consequent majority or minority status.
Since the filibuster is a legislative tool used by the minority party (Democrat or Republican) to avoid being steamrollered by the majority, members of the minority (in this case, Senate Republicans) have a vested interest in opposing reforms that would make it more difficult to mount filibusters.
Senate Democrats, by the same logic, have a vested interest in enacting reforms that would make it harder to filibuster their legislative agenda.
Settling the debate
Who’s right is more than a matter of whose ox is being gored. There are constitutional arguments on both sides of the issue. Democratic proponents of reform are demanding an end to the almost automatic way that filibusters have been used in recent years. They say that current Senate procedures subvert majority rule and promote legislative gridlock.
Republicans contend that the Senate’s role in the constitutional order is to check unrestrained majority rule and that filibuster rules, adopted under powers given to Congress by the Constitution, fulfill that function.
The filibuster debate has unfolded over decades. At one time, filibusters were reserved primarily for matters of obvious national importance and cloture motions (to end debate) were generally filed only after an extended period of debate had actually taken place. During the civil rights era in the 1960s, for instance, filibusters attracted national attention because of the importance of the issues involved and because they were fairly unusual events, involving marathon speeches on the Senate floor. Today, by contrast, cloture votes have become a routine part of the Senate’s floor procedures, even though marathon floor speeches are still quite rare.
Ground zero in the filibuster debate is Senate Rule 22, the cloture rule, which requires a 60-vote supermajority, to end debate. The rule is routinely invoked, often as soon as a measure is brought to the floor for consideration and before debate takes place. As a result, 60 votes are needed to block a threatened filibuster and move legislation through the Senate.
Proponents of reform argue that the Constitution clearly specifies those rare instances where a supermajority is required (the two-thirds vote required to ratify a treaty or propose a constitutional amendment, for example) and that creating, in effect, a 60-vote threshold for ordinary legislation imposes a supermajority where the framers contemplated a simple majority.
Opponents of reform counter that Article I gives each house of Congress the authority to establish its own rules, including the one governing cloture. They further maintain that the framers of the Constitution created a Senate that would serve as a check on popular majorities. whose will is reflected in the House.
The reforms being proposed by the Democrats on Wednesday would not end filibusters, but among other changes, they would require senators to speak continuously on the floor to keep a filibuster going, instead of simply threatening to do so to trigger the cloture rule.
As we await the outcome of Wednesday’s parliamentary showdown, here are 10 things to know about Senate filibusters:
1. In 1841 a threatened filibuster foiled Senator Henry Clay’s attempt to end debate by a majority vote on a bill to charter the Second Bank of the United States. If Clay refused to back down, said the threatening Senator, he “may make his arrangements at his boarding house for the winter.”
2. When senators started to filibuster in the mid 1800s, senate leaders grappled with lax limits on debate and several times sought to amend Senate rules. But most such efforts to bar the filibuster were themselves filibustered.
3. In 1917 a group of 12 anti-war Senators successfully filibustered a bill to allow President Woodrow Wilson to arm merchant vessels to combat German submarine warfare. In response, the Democratic senate, at Wilson’s urging, adopted a rule allowing for the “cloture” of debate to end a filibuster.
4. Huey Long, the populist Depression-era Senator from Louisiana, perfected the art of the filibuster in the 1930s to block bills he thought favored the rich over the poor. Long once held the Senate floor for 15 hours, reciting Shakespeare and reading favorite recipes.
5. In 1946, a filibuster by Southern senators that lasted for weeks blocked creation of a permanent Fair Employment Practices Committee.
6. Oregon’s Senator Wayne Morse set an individual record for filibustering in 1953, when he spoke for 22 hours and 26 minutes to protest legislation concerning offshore oil.
7. Morse’s record fell four years later, in 1957, when Senator Strom Thurmond filibustered the Civil Rights of 1957 for 24 hours and 18 minutes.
8. In the 1960s, no Senate term had more than seven votes on cloture. In recent years, it has climbed to more than 100.
9. In 2005, a group of Republican senators, responding to the Democrats’ threat to filibuster some of President George W. Bush’s judicial nominations, threatened to have Vice President Dick Cheney, as President of the Senate, rule that a filibuster on judicial nominees was inconsistent with constitutional “consent” of presidential appointments by a simple majority of senators. The constitutional showdown was averted when a bipartisan group of senators agreed to limit filibusters of judicial nominees to “extraordinary circumstances.”
10. In December, at the close of the recent lame-duck session of Congress, Vermont Senator Bernard Sanders hearkened back to the tradition of marathon speechifying, speaking for nearly nine hours on the floor of the Senate to protest the tax-deal compromise backed by President Obama and congressional Republicans.