The filibuster is at the center of the current debate on health care reform. The stalling tactic is used by U.S. senators to bollix up legislation they don't like with the aim of tossing it into the dustbin of parliamentary privilege. Most recently, Independent Sen. Joseph Lieberman and others have been aggravating Democrats by threatening to filibuster a public option and an alternative plan to expand Medicare.
Pundits and bloggers on the left have launched endless debates amongst themselves over what to do about the filibuster. Most want to bring cloture -- legislative-speak for closure -- to the use and abuse of the delaying tactic.
Dennis Cook, AP
When filibusters delay votes late into the night, cots pile up in the Senate chamber, as they did in 2003.
Lieberman co-sponsored a bill in 1995, with liberal colleague Tom Harkin, D-Iowa, that would have gradually lowered the number of votes needed to move legislation forward if senators couldn't reach the current 60-vote threshold. Harkin is considering re-introducing the measure because, "this health care debate is showing the dangers of unlimited filibuster."
The party in control always complains that the will of the majority is thwarted by the need to have a super-majority. Senators in the minority hold on to the maneuver even tighter as their only recourse to avoid being run roughshod by those in charge.
Citizens outside the Beltway just can't understand why their elected officials can't get things done more quickly.
The truth, said Steven Smith, a political science professor at Washington University in St. Louis, is that, "every time the party in control changes, they go in a dark room and exchange their speeches on the filibuster."
Smith said Democrats "lost their heart for reforming the filibuster rule" when they fell into the minority in the 1990s. "Lo and behold, they began filibustering themselves," he said. Indeed, former Senate Majority Leader Trent Lott, R-Miss., was so flustered by Democratic filibustering on President George W. Bush's judicial nominees that he threatened a nuclear option to break the logjam. He called the tactic "obstructionist."
Of course, Smith said, now that the Democrats are " back in the majority, they're kind of regretting they didn't do it."
George Washington saw the Senate as "the saucer into which we pour legislation to cool" after the tea is poured in the House of Representatives, where a simple majority has always sufficed.
Smith said it is a myth that the framers of the Constitution intended that a minority of senators be able to slow or block a vote on controversial legislation. Article I, Section 5 merely says that "each house may determine the rules of its proceedings."
The early Senate operated with a simple majority but over time the upper chamber adopted rules that led to unending debate to block anti-slavery legislation in the years leading up to the Civil War.
In 1917, after what President Woodrow Wilson called "a little group of willful men" filibustered a bill to rearm for World War I, the Senate passed a new rule. It was called cloture, and it allowed the Senate to cut off debate if two-thirds agreed.
The rule change did little to quiet Southern Democrats, who railed against civil rights bills in the 1950s and '60s. Round-the-clock filibusters saw senators camp out on cots near the Senate chamber. Strom Thurmond, R-S.C., set a record for speaking 24 hours and 18 minutes against the Civil Rights Act of 1957.
Those days are over. Yet more rule changes in 1975 did away with the speechifying and allowed senators to cut to a vote on whether to close debate. They also reduced the number of votes required from two-thirds to three-fifths, or the current 60.
Except, that is, for any measures that would change the filibuster rule. In those cases, the Senate still needs 67 votes to even consider the merits.
As Norman Ornstein, a congressional expert at the American Enterprise Institute, has written, "the unintended consequence of a well-intentioned move" actually increased the number of filibuster actions. With marathon speeches no longer required, Senate leaders found it easier to "quietly shelve bills or nominations that would have trouble getting to 60."
Cloture motions to shut off debate went from an average of less than two a month in the 1970s to more than two a week in the last Congress, according to Ornstein. Filibusters may not stop major issues like health care from being debated, he said, but they have become a way of "throwing molasses in the works."
Smith blames more than rules for senatorial gridlock. Growing polarization has weeded out moderates who once were willing to cross party lines to end filibusters. But as the parties have become more politically pure, liberals and conservatives have respectively demanded members remain united. "The restraints on the minority have faded away," Smith said. "It's a no-holds-barred, full exploitation of parliamentary rights."
And that can be habit-forming.
"It is like addiction," Smith said. "Once you've tried it, it becomes more and more tempting to do it again."
