The filibuster has been around since before the Civil War. It was designed as a means for a minority to slow down legislation. The intent in that is good. Unfortunately, it was used widely by people like South Carolina Sen. Strom Thurmond to slow down civil rights. Try as Thurmond might, it didn’t work.
Back in Thurmond’s day, he had to actually filibuster. That means Thurmond and other senators would take to the Senate floor and talk about their issue or recipes or sports or whatever they wanted. Unlike the House of Representatives, there is no time limit for a senator’s speaking. In 1957, Thurmond spoke for 24 hours and 18 minutes in an attempt to kill a 1957 civil rights bill.
Eventually, filibusters like this lead to the Senate changing the filibuster rule so that a senator only needed to say that he or she was going to filibuster. If 60 votes couldn’t be raised for cloture, then the bill was killed by filibuster threat alone. This filibustering-made-easy approach led to widespread filibusters, which reached an epidemic proportion after Barack Obama was elected in 2008. The graph on cloture votes since 1970 shows how a parliamentary procedure that was rarely used has become a commonplace abuse.
Senate Majority Leader Harry Reid has vowed to reform the filibuster. What he has in mind is not clear, but it will be better than the broken system now in place. With the Democrats increasing their majority in the U.S. Senate to 55, the votes are in place for change. Oddly, it may take 60 votes to stop a filibuster, but it only takes a majority to change the Senate rules. I’m not sure if someone can filibuster a filibuster, but we might see that tried by the Republicans who are not likely to favor Reid’s changes. Reid appears to have strong support as this list of comments from new and returning Senate Democrats and one independent makes clear:
- Angus King (I) Maine – “The Senate’s recent overuse of the filibuster has stalled progress on practically every issue of importance in America. The 60-vote requirement that it creates is not in the Constitution.”
- Maria Cantwell (D) Washington – “I’m not going back to the United States Senate to salute stalemate.”
- Tammy Baldwin (D) Wisconsin – “There have been a number of proposals that say you start with a 60-vote threshold, and maybe after a month, it is lowered — until a point that after a matter has been pending in the Senate for a very long time — where everyone has had adequate opportunity for input — the threshold needed to move forward would be a simple majority.”
- Martin Heinrich (D) New Mexico – co-sponsored house measure to force reform in the Senate in 2010.
- Mazie Hirono (D) Hawaii – “In my conversations with families across Hawaii, I have heard their frustration that Congress isn’t working to create jobs and get our economy moving. Washington is indeed broken and part of the problem is the misuse and abuse of the filibuster in the U.S. Senate. Senator Tom Udall has proposed several ways in which the filibuster could be reformed that I believe warrant further discussion including: eliminating secret holds and requiring Senators that use the filibuster to stay on the Senate floor during a filibuster. These proposals could potentially bring transparency and efficiency to the Senate and help increase the public’s confidence in Congress”
- Tom Kaine (D) Virginia – “A filibuster has had a venerable historical purpose, and the 60 votes to overcome a filibuster, I would leave that where it is. But I would make anybody who filibusters anything to have to stand on the floor of the Senate, and stand up and say, ‘This is why I’m acting to block … whatever’s going on.’ Because at the end of the day, the American public ought to be entitled to know whether the filibusterer is like Jimmy Stewart in ‘Mr. Smith Goes to Washington,’ or just an SOB who wants to stand in the way of progress, you know?”
- Chris Murphy (D) Connecticut – “The filibuster is in dire need of reform. Whether or not it needs to go away, we need to reform the way the filibuster is used, so it is not used in the order of everyday policy, but is only used in exceptional circumstances.”
- Elizabeth Warren (D) Massachusetts – “We need to reform the filibuster, beginning with a requirement that anyone who wants to stop the people’s business must go out onto the Senate floor and actually filibuster, live and in person, so that the American people see precisely who is creating gridlock.”