What the filibuster is and why it’s important

In civics class, every child learns that it takes 51 votes to pass something in the Senate, with the Vice President breaking ties if necessary. Of course, those civics lessons no longer apply to today’s Senate. Because of the Senate’s rules surrounding filibusters and cloture, it now takes 60 votes to pass a motion in the Senate. These rules directly contradict of the intentions of the framers of the Constitution and have made the Senate increasingly dysfunctional and ineffective.

I’ve written before that for the good of the country, the filibuster needs to be gotten rid of. Since its in the news again, here is a rundown on what the filibuster is and why you should care.

What, exactly, is the filibuster?

The filibuster is a Senate rule that allows unlimited debate on an issue before the Senate. This unlimited debate can only be ended by the votes of 60 Senators (called invoking “cloture”). From the mid 1800s to the mid 1900s the filibuster was primarily used by lone Senators or small groups of Senators to block or call attention to legislation they disapproved of. Since 2009, the filibuster has been used to block the Senate from voting on any bills or nominations unless they have 60 votes. Predictably, this has result in intense and debilitating gridlock in Congress.

Where did the filibuster come from?

The filibuster is not in the Constitution. It came about (like anything else) by accident. As Ezra Klein writes:

In 1806, the Senate, on the advice of Aaron Burr, tried to clean up its rule book, which was thought to be needlessly complicated and redundant. One change it made was to delete something called “the previous question” motion. That was the motion senators used to end debate on whatever they were talking about and move to the next topic. Burr recommended axing it because it was hardly ever used. Senators were gentlemen. They knew when to stop talking.

That was the moment the Senate created the filibuster. But nobody knew it at the time. It would be three more decades before the first filibuster was mounted — which meant it was five decades after the ratification of the Constitution.

This extremely powerful and controversial rule was created by accident and should never have come into existence.

When did the Filibuster achieve its current form?

As I said, the filibuster didn’t always function like it does today. In the earliest days, it was a tool for a single Senator (or group of Senators) to use to oppose a particular bill that he didn’t like. After Senators tried to block the Treaty of Versailles from being considered, “cloture” was developed. In its early days, cloture allowed 67 Senators to cut off debate on a motion, ending a particular filibuster. Most famously, the filibuster was used by Southerners to block civil rights legislation in the 1950 and 1960s.

Along the way, the filibuster evolved from being something that a single Senator or group of Senators might use to block a single bill and instead because a tool the entire minority party in the Senate would use to block the majority from doing what it wanted. This turned the balance of power in the Senate on its head, giving the minority party a veto over what got done in the Senate. Today, this forces an electorally victorious Senate majority to beg its defeated opponent for the right to pass legislation the minority opposes.

When it seemed that the number of filibusters was getting out of hand in 1975, the Senate lowered the number of votes required for cloture to 60. In that session of Congress, there had been about 40 filibusters.

Via the Washington Post

Now, the minority party in the Senate stages nearly 140 filibusters per session of Congress. Nearly every act of Congress, no matter how minuscule, is subjected to a filibuster. In this environment, its no wonder people complain about Congress not doing anything to help the American people.

Why the filibuster is important

Voters elect a party to power and expect them to govern. If they govern well, voters will reward them at the next election. If they govern poorly, voters will punish them. Republicans figured out in 2009 that if they simply block everything the majority party wants to do, then it starts to look like the majority party is doing a very bad job at governing. Few bills are passed, and the ones that are have to be loaded down with pork in order to scrounge up enough votes to get to 60. Americans’ problems start to go unaddressed and it starts to look like the majority party is doing a very bad job. So who do voters reward? The minority party.

In short, the filibuster allows the minority to sabotage the majority party, and by extension the will of the people and the good of the country, and then reap the rewards from voters’ dissatisfaction. Obviously, this is not how a democracy should work. Since it is nearly impossible to amass 60 votes in the Senate, this dynamic will be near-constant in the years  ahead.

Would the Framers have liked the filibuster?

Obviously no framers were around to see a filibuster, but many of the filibuster’s defenders claim that the framers would have liked having it around.  This claim doesn’t make any logical sense. After all, the framers had the opportunity to create the filibuster and they didn’t. Turns out that this claim doesn’t make any historical sense either. The framers thought about creating a super-majority requirement for the Senate and specifically rejected it. Again, from Ezra:

In Federalist 22, Alexander Hamilton savaged the idea of a supermajority Congress, writing that “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.”

In Federal 58, James Madison wasn’t much kinder to the concept. “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.”

In short, the filibuster was a historical accident that was never intended to exist. It makes it impossible to legislate for our country and should be gotten rid of immediately by changing the rules for the Senate.

2012

05/15

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political reform

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