The Senate got tied up in knots in February 1917 when President Woodrow Wilson asked for authority to arm U.S. merchant ships to defend against Germany’s submarine warfare. Despite the Democratic president’s re-election and the Democratic majority in the Senate, Republican senators mounted a filibuster to block the legislation.
Wilson solved the immediate problem by arming merchant ships by executive order, but he also used the national security issue to leverage public opinion behind a change in Senate rules to limit the century-old tradition allowing unlimited debate in the chamber. Senate Rule 22 provided that a vote of two-thirds of the Senate could invoke “cloture” and cut off debate.
Today, nearly a century later, the Senate is routinely tied up in knots even though a rules change in 1975 reduced from two-thirds to three-fifths the supermajority needed to limit debate. Over the past decade, the filibuster has come to be so commonly wielded that it takes a three-fifths majority to get anything passed in the Senate.
Over the past two years, minority Republicans were especially active in using the tactic to slow or thwart President Obama’s legislative program. Despite majority support from the public, Obama managed to get his health care plan and repeal of “don’t ask, don’t tell” through the Senate only by dint of intense lobbying by the White House and outside groups.
Now, with the Senate set to convene on Wednesday (Jan. 5) with a fortified Republican minority, some Democratic senators are pushing proposals to revise Senate rules to limit obstructionist tactics. The outcome is uncertain. Republicans are laying down markers against any change. A spokesman for Senate GOP leader Mitch McConnell is throwing cold water on reform by warning Democrats that they could rue any changes the next time they are in the minority.
Federal courts have a stake in the fight. The proposed reform being pushed by first-term Democrat Tom Udall of New Mexico would not only change the rules on filibusters but also curb the use of anonymous “holds” on judicial nominations and other presidential appointments. Those two tactics have combined to slow Senate confirmation of Obama’s nominees and to leave the federal courts with a record number of vacancies as Congress adjourned in December.
The reform efforts collide with what one congressional expert calls a historical misunderstanding of the Senate’s “tradition” of unlimited debate. Sarah Binder, a senior fellow in governance studies at the Brookings Institution in Washington, notes that the Senate and the House of Representatives both began with rules permitting simple majorities to “move the previous question” that is, call for a vote on a pending bill or resolution. But the Senate deleted that provision in 1806, merely to simplify its rules.
The pejorative term “filibuster” derived from a Dutch word for pirates had been coined by the 1850s, but the tactic was rarely used before the Civil War and still infrequently for the rest of the 19th century. Southern Democrats made the most frequent use of the tactic in the 20th century, blocking anti-lynching legislation in the 1930s and broader civil rights proposals in the 1950s and ’60s. The Civil Rights Act of 1964 was enacted only after President Lyndon B. Johnson used his intimate knowledge of Senate politics and the memory of his slain predecessor, John F. Kennedy to overcome a 57-day filibuster.
The Senate’s decision a decade later to allow cloture by a three-fifths vote represents a kind of historical judgment against abuse of the filibuster. The leader of that effort was Walter Mondale, then a Minnesota senator and later vice president. Today, Mondale says further reform is needed in a Senate that he describes in an op-ed in the New York Times as “arguably more dysfunctional than at any time in recent history.”
The possible changes under discussion are varied, according to Binder’s colleague, Steven Smith, a professor at Washington University in St. Louis and a Brookings fellow. One idea would be to lower the supermajority needed to invoke cloture, perhaps to 55 senators. A variant would reduce the number in stages: perhaps 57 votes after a specified period, 54 votes after additional time. Another idea would require that filibustering senators actually come to the Senate floor and debate. As currently practiced, senators can simply declare their intention to block a vote without so much as taking the floor to explain their opposition.
Senate Democrats, who succeeded in invoking cloture 63 times during the past congressional session, were all but unanimous in a letter in December urging Majority Leader Harry Reid to support rules changes. Reid and McConnell are reportedly negotiating over the issue even as Udall and others are shaping their own proposals.
One critical preliminary issue will be whether any change requires a two-thirds vote, as Rule 22 ostensibly requires, or a simple majority, as Udall argues. Under what Udall and others call the “constitutional option,” a new Senate is free to adopt its own rules by majority vote, unbound by the rules of a prior body.
The Senate’s new partisan alignment with 53 Democrats and 47 Republicans adds to the need for changing the rules. Barring the unlikely breakout of bipartisanship on Capitol Hill, a Senate that cannot act without a 60-vote majority could be tied up in knots for a full two years. In the long run, a dysfunctional Senate disserves the public and discredits both parties alike.