Momentum for Senate filibuster reform is stronger than ever. But is the proposed cure worse than the disease? By Jay Pinho This article first appeared in Communiqué Magazine. At 8:54 PM on August 28 th , 1957, United States Senator Strom Thurmond took to the dais and started to speak. The South Carolinian began, “Mr. President, I rise to speak against the so-called voting-right bill H.R. 6127, which bill was passed by the House of Representatives.” By the time Thurmond concluded his speech, saying, “I want to thank the Presiding Officer and the others for their courtesies extended to me, and with this I now give up the floor, and suggest the absence of a quorum,” it was 9:12 PM the next day, August 29 th . What transpired for the 24-hour, 18-minute duration was a marathon discourse that encompassed the voting rights laws of every state in the United States; readings from the Declaration of Independence, the Bill of Rights, and George Washington’s farewell address; an extensive tangent into jury trial procedure; and even a reference to a cooking recipe preferred by Thurmond’s grandmother. The stated purpose of the senator’s loquacious diatribe was to prevent the passage of the Civil Rights Act of 1957, legislation designed to establish protections for the rights of African-Americans to vote. His methodology of choice was the filibuster, an arcane Senate procedure by which a single member can prevent the floor from conducting a vote by simply refusing to stop talking. And although the length of Thurmond’s speech established a Senate record that has yet to be broken, the use of the filibuster to stymie opponents’ proposed bills was hardly a new phenomenon. But this particular filibuster’s deployment in the service of such a dubious objective presents an altogether fitting portrayal of the rule’s inherent danger. Although a vote by 60 senators to close debate and thus end indefinite oratory (also known as invoking cloture, under Senate Rule XXII) is technically possible, in practice – and especially in the polarization of recent years – such votes fall along party lines for the most contentious issues. In that neither Democrats nor Republicans generally have 60 senators in office at any one time, today all that is needed is the mere threat of a filibuster in order to kill the prospects for many proposed bills. Even an anonymous “hold,” a request sent by a senator to his party’s leadership, can stall progress on a bill. This procedure does not even require the senator’s physical presence in the Senate at the time of the obstruction. Needless to say, in the current political climate, this can severely curtail legislative efficiency. Unsurprisingly, calls for filibuster reform usually emanate from whichever party finds itself most victimized by its use at the time. For the duration of the Obama administration, that party has been the Democrats, whose simple majority in the Senate (augmented from a 53- to a 55-member caucus in the wake of the November 6 elections) is nevertheless impotent in the face of the omnipresent filibuster threat. As SIPA dean Robert Lieberman notes, “The filibuster used to be a very rarely-used tactic, and it’s become much more routine. And it’s really allowed the minority in the Senate to pretty much stop almost all regular business in Congress, which the majority finds increasingly frustrating.” Indeed, the trend is inescapable: the filibuster menace has exploded in recent years as a significant disruptive force in the Senate, paralyzing everything from routine judicial nominations to landmark financial reform legislation. As with much of our anachronistic political machinery, the filibuster’s widespread condemnation has been almost completely unmatched by political reform. The institutional inertia is substantial, especially because the party in the best position to enact change often has the greatest incentive not to. This paradox is common to other areas of governance as well, including campaign finance reform. What, then, would it take to move the needle on filibuster reform? Many are arguing that this brief, transitory post-election confluence of Democratic ascendance and Republican introspection represents the best shot to dramatically limit the use of the filibuster for the first time since 1975. The avenue available to achieve this goal is highly controversial, however. Most prominently advocated is the “nuclear option” – dubbed the “constitutional option” by its proponents – a complicated procedural move that would allow a simple majority to eliminate, or at least modify, the use of the filibuster as a tool of would-be senatorial stallers. The term “nuclear” is used as a descriptor to indicate the partisan fallout that would likely take place in the aftermath of such an unprecedented change. “I would imagine it will lead to a pretty tough war of words and perceptions,” Lieberman predicts, later adding: “You can already project what the arguments will be. The calculation for the Democrats is: how do they expect to come out in that battle?” Even so, the nuclear option may give reformers the best chance of succeeding. Under such a scenario, changes to Senate rules – which usually require a two-thirds majority vote to override a filibuster attempt – can be implemented via a simple majority. Multiple senators, including all seven incoming Democratic freshmen and independent Senator-elect Angus King from Maine, are looking to take advantage of this loophole to change the way the filibuster works, but not eliminate it entirely. Majority Leader Harry Reid (D-NV), who once opposed reform, has since changed his mind after experiencing firsthand the bureaucratic slow-crawl that has inevitably accompanied its continued usage. Senator Tom Udall (D-NM) and Senator-elect Elizabeth Warren (D-MA), among others, have promised to make filibuster reform a high priority when they begin the Senate’s new session in January 2013. Key to the proposed changes is a stipulation that senators wishing to obstruct progress on a bill must be physically present in the Senate chambers and must speak against the bill indefinitely to prevent a vote. In short, it forces senators out of the shadows and compels them to go on the record to defend their blockade of proposed legislation. Not everyone is onboard with an overhaul of Senate rules, however. Unsurprisingly, Senate Republicans are concerned that restricting the filibuster will eliminate their party’s most potent weapon against the Democratic majority. Minority Leader Mitch McConnell’s spokesman warned, “We hope Democrats will work toward allowing members of both sides to be involved in the legislative process — rather than poisoning the well on the very first day of the next Congress.” Filibuster reform comes with its own set of caveats for Democrats as well. “Forcing the minority to [be present in the Senate] in order to actually mount the filibuster also requires that the Senate stay in session endlessly,” Lieberman notes, creating a burden borne equally by both parties. “In order to go down that road,” he says, “Democratic senators would have to be willing to spend more time in Washington, spend more time hanging around the Senate floor and actually participating in this nonsense than they’re probably willing to do.” Additional caution has been expressed by unelected political observers. In an op-ed piece for the Washington Post , Brown University professor Richard Arenberg declared, “No one should be fooled. Once the majority can change the rules by majority vote, the Senate will soon be like the House, where the majority doesn’t consult the minority but simply controls the process. Gone would be the Senate’s historic protection of the minority’s right to speak and amend.” But many are skeptical of the assertion that Senate Republicans are merely exercising their minority right to “speak and amend.” Given the spike in cloture motions and votes in the first term of the Obama administration, the filibuster often seems to resemble an offensive weapon more than a last-ditc
h protection against a tyrannical majority. This perception is bolstered by antagonistic comments articulated by high-ranking Republican figures such as McConnell, who famously said in 2010, “The single most important thing we want to achieve is for President Obama to be a one-term president.” That same year, in fact, was the last time the Senate Democrats made a concerted effort to change the filibuster rules, but they failed to muster even a simple majority in favor of the proposals. This time, however, Senator Udall is convinced that not only will the strengthened Democratic majority ensure the success of reform attempts, but that some Republicans will acquiesce as well: “We’re working with them. We’re having private discussions. I can tell you privately many Republicans are not happy with the way we do business in the Senate right now.” This is a sentiment shared by the vast majority of the American public, whose collective Gallup-measured approval rating for Congress hit 10% in August of this year, before recovering somewhat to 21% in October. And in the wake of President Obama’s reelection, Americans expressed significant doubt about the motives of Congressional Republicans in particular. While 65% of Americans now believe that Obama will attempt to work with Republican leaders, and 57% feel that Congressional Democrats will do the same, only 48% predict that Republicans will reach across the aisle similarly. For some members of the GOP, then, this disparity in public perception – amplified by their dismal performance in an election during an anemic economic recovery presided over by a Democratic president – may provide the impetus to rethink their traditional opposition to modification of the Senate rules. Even with some bipartisan support, however, it is virtually certain that proponents of reform will fall far short of the requisite 67 votes needed to sidestep the constitutional option. Under today’s procedures, Strom Thurmond would not even have had to step foot into the Senate chambers to force legislative gridlock. The consequence of these rules has been a partisan cold war, pitting a Democratic simple majority against a determined and unified Republican opposition. Given the paralysis that has characterized the upper house’s proceedings in recent years, it is no wonder that detonating the nuclear option looks increasingly attractive to filibuster reformers. But as with every war, what happens after a nuclear strike is anyone’s guess.