We didn’t do it on purpose, and we’d take it back if we could.
But I’m getting ahead of myself.
The US Senate is undemocratic in its representation; its filibuster rule compounds that undemocratic streak, requiring 60 votes to end debate on a bill so that the chamber can actually take a vote to pass it. Thanks to small-state rule and the filibuster, it’s hypothetically possible for states representing about 12 percent of the US electorate to block the will of the other 88 percent—by mustering 41 Senators who refuse to end debate. (In the current Senate, the 41 Republicans represent about one third of the US population.)
Some still defend the filibuster, but their arguments are so much special pleading to my ears. Matt Yglesias eviscerates their case (with irony) here:
As Robert Byrd explained in a letter early in March, “Extended deliberation and debate—when employed judiciously—protect every senator and the interest of their constituency, and are essential to the protection of the liberties of a free people.” Indeed, this is why countries from Norway to Japan to Canada that lack such measures have long ago degenerated into totalitarian hellscapes, the all-consuming power of their dictators interrupted by only the occasional anguished screams loud enough to be heard outside the gulag walls. Indeed, even here in the United States, absent a filibuster we might have adopted an anti-lynching bill back in 1922, and who knows to what that could have led.
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In 1806, the former Vice President Aaron Burr (who killed Alexander Hamilton in a duel, earning himself a place in US history books as one of the greatest villains of the founders’ generation) suggested streamlining some Senate rules and the chamber took his advice. One of the rules he recommended striking was the motion to end debate (by majority vote). He noted that this motion had almost never been used during his term. He would have known: the Vice President routinely presided over the Senate in those days. It doesn’t seem to have occurred to him, nor to anyone else for three decades, that the lack of such a rule made it possible for a minority to block laws by blabbering endlessly. In those early years of the Senate, no one did that.
(My family’s role in all of this? Aaron Burr was my great-grandmother’s great-grandfather’s brother. I am a descendant of his niece Rachel Burr. My mom has a cross-stitch sampler that Rachel made when she was eight. Being related to the black sheep of independence is not a fact that brings great pride to my heart. Still, from what I’ve read, Burr could not have been half as bad as the reputation he left behind. After all, with the backing of most of the nonslave states, he tied no lesser a person than Thomas Jefferson for the presidency. Jefferson-Burr was the original Gore-Bush 2000: the election was decided in the House of Representatives. It turns out that the worst thing Burr did, arguably worse for the nation than challenging Hamilton to a duel, was to accidentally sow the seeds for the filibuster.)
In the years preceding the Civil War, filibustering grew more common. Eventually, the Senate formalized a rule for ending debate called “cloture”—a supermajority first set at 67 Senators and then, in the mid-1970s, at 60 Senators. Interestingly, though, according to Yale political scientist David Mayhew, as the threshold has declined, the filibuster’s power may have increased. That is, Senate minorities may hold more sway than ever.
Partly, that’s because other changes made the cost of the filibuster lower to individual Senators: they could simply announce their intent to filibuster, without actually standing in the Senate chambers and talking hour after hour. What’s more, under the new “virtual filibuster,” the Senate could proceed with other business. This reform meant to speed Senate action had the unintended consequence of making filibusters more common. The pressure not to filibuster fell away, because a filibuster no longer stopped every single bill before the Senate. Consequently, the number of filibusters has grown explosively. Once an exceedingly rare parliamentary maneuver, it has become routine procedure in the Senate, effectively making the Senate operate under supermajority rules for almost everything. (Read brief histories of the filibuster here, here, here, and here.)
The filibuster rule is a historical accident (blame my ancestor Aaron Burr!) and exists only in the self-written rules of the Senate. Unlike the Senate’s undemocratic overrepresentation of small states, the filibuster is not even mentioned in the Constitution. So changing it is a simple matter of changing Senate rules. How to do that?
- The normal way to change Senate rules (as prescribed by those rules) is to get a vote of 67 percent. That’s a tall order; the most recent attempt never got off the ground. Blogger Matthew Yglesias thinks the way to get 67 percent is to post-date the reform. That is, propose the rule change and pass it now, but make it take effect at a future date. If no party wants to give up its tactical benefits for the minority in the near term, postpone the effective date to a point in the future where it’s unclear which party will be the minority.
- In the so-called nuclear option, suggested in 2005 by then-Majority Le
ader Bill Frist (R-TN), the vice president would make a “finding” while presiding in the Senate that the filibuster rule and other Senate procedural rules can be changed by a simple majority. It’d be a bold move—a procedural coup—that would violate Senate tradition plus a number of written Senate agreements. But it would support the Constitution and align with Supreme Court rulings that say the Senate is intended to operate on the principle of majority rule. No court could overturn it, though it would inspire high drama in the Senate chamber. It might even spark fist fights like those that break out periodically in Taiwan’s legislative body (see video below). (YouTube reveals that legislative slug fests are not so unusual as we North Americans might assume. You can watch fighting in Korea, punches in the Ukraine, a melee in Bolivia and a near-riot in India.)
- A gentler version of #2, proposed by Sen. Tom Udall (D-NM), is to do the same thing at the opening of a new Congress. The Vice President would declare the Senate to be “not a continuing body.” In the past, the Senate has considered itself one, continuous rolling legislative body, because two-thirds of its members stay on through each election cycle. If it is not a continuing body, the Senate can revise its rules by simple majority.
Either option 2 or option 3 would violate Senate tradition and strain Senate rules. Either option would create a temporary hullabaloo in the Capitol. That’s why many observers argue that a majority party should only use them if there’s a filibuster threat so egregiously unpopular that voters grow restive.
My own view is less timid. After all, my family (accidentally) gave the United States this anathema of undemocratic procedure, with the ruinous unintended consequence of blocking essential progress on many fronts while eroding public trust in democracy. It’s not an exaggeration to say that the filibuster-engendered obstructionism of the US Senate is the single largest obstacle to a clean-energy revolution, a price on carbon, and a more-sustainable Northwest.
We’d like that off our consciences.
Besides, despite all the precedent and procedural backing that’s accumulated behind the filibuster over the decades, one thing remains unarguable: By whatever means it’s killed, the filibuster will stay dead. No majority party—now or later—will resurrect it. Why would they? It makes life hell for majorities, even while it makes governing exceedingly difficult in the fast-changing circumstances of the Twenty-first Century. Plus, it’s unfair. Ending the filibuster would be a tremendous victory for the principle of majority rule. What’s more, the US public is way ahead of the Senate on the filibuster: in a February survey, a majority said they want it gone immediately.
Besides, anyone who feels the need for a scapegoat—either for the filibuster or for its removal—can blame me. Me and my great-grandmother’s great-grandfather’s kid brother Aaron Burr. He didn’t mean to do it, and we’re sorry. Please correct the error already!
CORRECTION, 4/7/2010: This post previously said that Senator Tom Udall supported #2 above. His office phoned to say that the Senator actually supports #3, not #2. The post now reflects this information.
Image of Aaron Burr portrait by John Vanderlyn can be found at Wikimedia Commons and is considered to be in the public domain.