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It's Time To End The Filibuster Once And For All

Nathaniel Haas |
May 28, 2014 | 9:30 p.m. PDT


"Rule by the super majority" is contrary to everything the founders envisioned for the United States. (Jennifer Parr, Wikimedia Commons)
"Rule by the super majority" is contrary to everything the founders envisioned for the United States. (Jennifer Parr, Wikimedia Commons)
There are 100 senators in the United States Senate. A bill must receive 51 supporting votes to pass the Senate and have the potential to become a law. 

In late April, the Senate’s bill to raise the federal minimum wage received 54 votes for and 42 against. 

It did not pass the Senate. 

Two weeks ago, a bill to promote energy efficiency received 55 votes in the affirmative and 36 in the negative (with nine not voting). 

It, too, did not pass the Senate. These days, the support of the majority is not good enough to pass legislation. Think about that for a moment: these days, put simply, democracy is no longer rule by the majority—in the Senate, to move legislation, a super-majority of 60 votes in support is needed.


The filibuster is to blame. Since its "invention," it has allowed senators to talk, or threaten to talk, for an unlimited amount of time, thus preventing the Senate from moving on to a final vote on the current bill or judicial nomination under consideration. This means that dissenting Senators can theoretically continue to talk indefinitely, ensuring a bill is never brought to a vote or a nominee is never confirmed.  

Because of another procedural rule, senators don’t actually have to physically talk indefinitely—they can simply suggest the absence of a quorum (enough senators present to do business), and are allowed to adjourn and continue speaking the next day the Senate is in session.

To end the filibuster, and move to a final vote, another vote must occur (think of it as a "vote to vote"). Called cloture, it originally required 67 (two thirds) votes, but was reduced to 60 in 1975. This means that to end a filibuster, and move to a final vote to pass a bill, 60 votes are needed, hence, rule by the super-majority.

In 1787, Alexander Hamilton warned America of the dangers of rule by the super-majority when he penned The Federalist No. 22

Its real operation is to embarrass the administration, to destroy the energy of government and to substitute the pleasure, caprice or artifices of an insignificant, turbulent or corrupt junta, to the regular deliberations and decisions of a respectable majority.

James Madison ridiculed rule by the super-majority in much the same fashion in Federalist 78

In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. It would be no longer the majority that would rule; the power would be transferred to the minority.

So when, then, did democracy become rule by the super-majority? The Constitution prescribes just six instances in which Congress requires the support of the super-majority: impeaching the president, expelling its members, overriding a presidential veto of a bill or order, ratifying treaties and amending the Constitution.

In other words, big things. Not passing every day legislation or confirming the dozens of people nominated to be judges each year. And yet, a super-majority is exactly what's needed to put an end to the filibuster, which didn't appear on the American political landscape until almost 70 years after the Constitution was ratified. 

The filibuster, derived from a Dutch word that means "pirate," dates back to the 15th century. Around 1865, some wise guys started using its American form to refer to legislators who “pirated” (filibustered) debates or the traditional rules of the Senate. 

Its invention was purely a fluke of history – in 1806, the Senate eliminated the “motion to previous question,” which was essentially a procedural vote that took place to move the Senate to the next item on the agenda. The conventional wisdom suggested that being honorable elected officials, senators would know when to stop talking and start voting. 

How wrong the conventional wisdom often is. 

A study in the New Yorker revealed the majority party sought to end a filibuster (invoke cloture) 58 times between 1917 and 1970. The Democratic majority in the Senate has sought cloture almost five times as often (over 250) since President Obama was inaugurated. Seeking cloture means trying to end a filibuster by the minority party - the above statistic tells us that the GOP has filibustered (blocked legislation and nominations) of the Democrats under Obama at beyond historic levels. 

The filibuster should be done away with in its entirety. In the last decade, members from all ends of both parties have agreed on the need to end the filibuster, but at different times that are (unsurprisingly) correlated with whose party is filibustering, and whose party is being filibustered.

To be fair, use of the filibuster cuts through both parties. While it's the GOP today, beginning in 2005, Senate Democrats (who were in the minority under then-President Bush) filibustered countless judicial nominations, a repeal of the estate tax, and (albeit thankfully) a law that would define marriage as solely between a man and a woman, to name a few. 

Even Rush Limbaugh so eloquently argued against the filibuster on his radio show back then:  

This filibuster, as you know, they're [Senate Democrats] filibustering these nominations which requires essentially 60 votes for a judge to be confirmed. The Constitution says nothing about this. The Constitution says simple majority, 51 votes. But because they're invoking the filibuster, which, you know, the Senate can make up its own rules but not when they impose on the Constitution and not when they impose on the legislative branch…

Of course, true to his abhorrent and offensive form, Limbaugh did an about-face last year and compared the attempts to reform the filibuster to a group of men raping a group of women, but I digress. In the former instance, Limbaugh is at least right about the uselessness of the filibuster: the Senate has made a ton of procedural rules to govern daily business, none of which are outlined in Article I of the Constitution, and that's all fine and good. When those rules, however, functionally limit the power of the Senate to pass laws via simple majority, those rules become impediments to democracy. 

The quickest way to put the filibuster to the death is the tactic ominously known as the nuclear option. While it's a great sadness that this tactic received such a nasty label, what's needed now is really just a "half nuclear" option, because the other half of the nuclear option was detonated in November. Senate Majority Leader Reid went before the Senate and, with the support of 52 Democrats, reduced the votes needed to end a filibuster on federal judge nominations to 50 (the same amount needed to confirm them). The tactic is called the nuclear option because normally, to change a Senate rule like the 60 vote end-of-cloture requirement, one needs greater than that number of votes to do it, (rather logical if you think about it). 

Reid ended the filibuster for the portion of Senate business that deals with nominations to federal judgeship, but the 60 vote requirement to override a filibuster still applies to Supreme Court nominations and all legislation. Given this, it's easy to see what must happen next. It’s time for the nuclear option again, though don't be surprised if the media dubs it the "penultimate political vaporizing weapon of mass nuclear destruction of all time in the history of ever," or something similar. 

The late Senator Robert Byrd, who served in the Senate for 51 years warned that without the filibuster, the minority would be powerless to stop a (potentially dangerous) majority from enacting everything it wants. Byrd is right - but there are alternatives. Law professors Richard Painter and Michael Gerhardt, a Republican and a Democrat respectively, wrote of the introduction of the "delay rule," which would replace the filibuster with a delay of the final vote until the next Senate (every two years), at the objection of a more substantial number of the minority (they suggest 44). Though they suggested the rule for nominations only, such an alternative could also be applied to legislation. This proposal would both give the minority a say, and prevent them from killing a bill or nomination forever. It isn't pretty, but it's certainly an upgrade.  

There's another drawback for the current party seeking to reform the filibuster: with the Democrats facing a not insignificant chance of losing control of the Senate this November, it's logical to think that such a deployment could come back to harm them: if they find themselves in the minority, they won't be able to filibuster anything the GOP in the Senate puts on the agenda. Thankfully, Senate Minority Leader Mitch McConnell has vowed to deploy the nuclear option if the GOP takes control of the Senate anyways. 

“You’ll regret this, and you may regret this a lot sooner than you think,” McConnell told Democrats. "There is not a doubt in my mind that if the majority breaks the rules of the Senate to change the rules of the Senate with regard to nominations, the next majority will do it for everything."

If the GOP doesn't, it will be Reid to whom the duty of pressing the red button falls in January. Early indications are that Reid is coming around to the idea: recognizing the Democrat's rampant use of the filibuster to block Bush nominees in the mid 2000s, Senator Reid promised to move forward: 

“The rest of us were wrong,” he said on the Senate floor. “If there were anything that ever needed changing in this body, it’s the filibuster rule, because it’s been abused, abused and abused.”

Clearly, something's gotta give. The filibuster is unconstitutional, bad for democracy and nuking it has received support from everyone at some point. As this election season approaches, write your Congressional representatives and ask them to get rid of the filibuster. 

If they already agree on it, what are we waiting for?  

Nathaniel Haas is a junior majoring in political science and economics. He currently lives and works as an intern at the United States Senate. His column, "Over The Hill," runs Wednesdays. Reach him here; follow him here.



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