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February 05
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FEBRUARY 5, 2010 10:41AM

Filibusters, Cloture, and Lazy Senators

Rate: 16 Flag

Now that Scott Brown has been sworn in as Massachusetts’s junior senator, the Democrats have lost their filibuster-proof majority.  Never mind the fact that it is nearly impossible to get 60 members of the Democratic caucus to agree on anything of value.  Joe Lieberman and Blanche Lincoln are not likely to agree with Russ Feingold or Tom Harkin very often, at least when it comes to ground-breaking social legislation.  I’m not convinced that the loss of the 60th vote means very much at all.  The watered down health care bill is a perfect case in point.  Is there anyone who really thinks the proposed bill would have made much difference in either the price, or the quality, of our nation’s soaring health care costs?

So I am not very concerned about losing that 60th vote.  I do have a minor suggestion, though.  Can we stop using the term “filibuster-proof majority”?  Let’s remember what a filibuster is.  A filibuster occurs when a senator takes advantage of the Senate rules allowing unlimited debate on a bill.  Unlike the House of Representatives, there is no limit to the amount of time allocated to a senator to debate an issue.  It is a grand senatorial tradition that reaches back to the time of the Roman Republic.  Back then, the Roman Senate had a rule that would require its business to conclude by dusk.  The great statesman Cato, who opposed granting senatorial approval to Julius Caesar’s grasp for dictatorial power, would speak until nightfall to prevent a vote from taking place.  That was the first use of the filibuster in recorded history.

In the United States, the first Senate filibuster occurred in the 1830’s.  The tool gained traction in the years leading up to the Civil War, but then dropped from frequent use until the 1930’s.  Senator Huey Long used the filibuster on numerous occasions to inhibit some of Franklin Roosevelt’s New Deal legislation.  Once in 1935, Long spoke for more than 15 hours.  At one point, when he ran out of germane things to say about the bill being debated, he began reading recipes from a cookbook.  Only after he had to leave the podium in the wee hours of the morning to use the restroom was the Senate able to bring the debate to a close, and that was only because a quorum of senators remained in their seats asleep until Long left the room.

Strom Thurmond holds the record for the longest filibuster.  In 1957, he spoke in opposition to the first Voting Rights Act.  He began his filibuster by reading each of the 48 states’ voting statutes.  He read and discussed a Supreme Court decision from years before.  He did the same with the Declaration of Independence and the United States Constitution, including the Bill of Rights.  Once he had exhausted those documents, he recited George Washington’s Farewell Address, and opined on it as well.  After 24 hours and 18 minutes, Thurmond was so fatigued and hoarse he could no longer continue.  He closed his filibuster with one of the greatest understatements of all time:  “I expect to vote against the bill.”

Of course, the Voting Rights Act passed.  So did Huey Long’s hated New Deal legislation.  The fact is filibusters in the United States rarely prevented a vote from taking place.  They rarely succeeded in their objective.  That is the big difference with the current situation.  Now, the simple threat of a filibuster brings the business at hand to a screeching halt.

There has not been a true filibuster in the United States Senate since the early 1970’s.  What we have had since then are cloture votes, not filibusters.  The political parties strive for “cloture-proof majorities”, not “filibuster-proof majorities”.  In 1975, the Senate changed the rules so that the simple threat of a filibuster was all that was needed to stop debate on an issue.  If 40% of the senators oppose a bill, they can prevent it from coming up for a vote.  If a bill’s opponents do not have the support of 40% of the Senate, the majority can vote for “cloture”, which halts debate and forces a vote.  If more than 40% oppose the bill, the opponents can prevent cloture.  That is a far cry from a real filibuster.

A filibuster required stamina.  A filibuster required passion.  You might have had more than 40% of the Senate oppose the Voting Rights Act, but with few exceptions, other senators did not oppose the bill with enough conviction to speak against it for hours on end.  Does anyone really think there are many senators today whose opposition to the watered down health care bill is so strong that they would be willing and able to speak for 10 or 12 or 24 hours in opposition to it?  Frankly, I don’t think Mitch McConnell or Jeff Sessions have the physical fortitude for it.   Even if they did, they would eventually wear themselves out, and someone else would take the floor and move to bring the bill to a vote.  It is highly unlikely that there would be enough filibusterers to keep the vote from taking place.

There were good reasons for the 1975 change in Senate rules that stopped filibusters from taking place.  When a senator held the floor for hours on end, all other legislation came to a stop.  Now the Senate can take up other business while the bill being “filibustered” is laid aside.  That is a good thing.  Still, I think the 1975 rule change has harmed the process more than it has helped it.  It is the ultimate expression of laziness and unaccountability.  If someone really opposes legislation with passion and conviction, let him prove it by standing up and speaking for 15 hours or more.  And then, let the rest of Congress take a stand and vote.

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filibuster, cloture, history, senate

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Steve, I wasn't familiar with all of this detailed history of the filibuster and cloture voting mechanisms. I have seen a lot of dissembling on the subject in recent days on the news. Thanks for the history on this important subject!

I wanted to add a greeting here for your birthday today! Please check out this post:
Yes! Those of use frustrated at the moment should remember how much we wanted to keep the filibuster 4 short years ago. Still, it needs to be tinkered to prevent the current abuses. Whether it be actually forcing the minority to debate (filibuster for real) or increase the number of votes required to prevent cloture over a span of time or successive procedures, something ought to be done.
I agree. Reconciliation is the way to go. The Dems need to grab power. Bush used it to get the his way on tax cuts.
Great post. I also didn't now all the history involved. Very interesting.

I agree with your conclusion.
I am down with you. Filibuster? Bring it on.
Nothing gets done and no ones is accountable. Now Shelby had put a hold on all of Obama's appointments until he gets the earmarks he wants.
John, thank you for your comment, and a BIG thanks for the linked post and its sentiment!

Caracalla, SPQR, and gratias.

Turtle, I was thinking about whether I would have written this two years ago. Perhaps not, but the point is still valid. Senators should not hide behind cloture, take a stand, and really filibuster if they feel strongly about it. Then, if things pass and all goes to hell, the voters will at least know whom to blame.

J.B., Too often, Dems just don't seem to have the guts to take a Machiavellian stand. For some reason, Republicans nearly always do.

Kaysong, thanks.

Steve, I'd like to see just how many Senators have the principled will to do a real filibuster.

sheepdog, good grief.
I would love to see a resumption of the actual filibuster. Great post!
Thank you for the recap. I think the entire country needs to learn this lesson. Many of us envision the filibuster scenes in movies and have a hard time wrapping our brains around the concept of a cloture vote as a preemptive parliamentary maneuver.

The GOP refusal to govern will only come back to bite them in the ass even if they pick up seats in 2010. The US Senate has succeeded in making itself irrelevant to our Democracy. Now it's up to the Democrats to point that out to Americans.
I have some procedural questions. What does it take to change the Senate rules so that they return to the use of a real filibuster? Does it take a simple majority vote to change Senate rules, or can a rule change be filibustered? And when can a rule change be proposed? Can it only be done at the convening of a new Session, i.e., after the midterms?
Bring on Mr. Smith Goes to Washington.
Superb. By far the finest article I've read on filibuster and cloture. You make the subject crystal clear. The historical perspective is excellent. Thank you, Procopius.
You make some excellent points. I agree with you that requiring opponents of a bill to fillibuster it would be an effective way of finding out how committed they really are to their cause. Thank you for these valuable insights into the U.S. political system.
Roger, obviously I would too.

Virtual Dave, in our partisan society, I'm afraid campaigning on that issue would do very little, but we can hope!

alsace, the rules of cloture can be changed with a procedural majority vote. My understanding is that such a vote would not be open to filibuster, but I'm not 100% certain. I'd have to look into that a bit more. There have been threats to change procedure to prevent filibusters. That possibility has been called "the nuclear option", since it would cause a great deal of partisan rancor in the Senate.

Don, were it so simple!

Steve, thank you for your kind words. Glad you stopped by.
I liked Jeff Smith's filibuster. My favorite.
It appears to this foreigner that the filibuster is just kind of a stupid idea and has no function or validity in a democracy. Why should any small group of people even be able to delay the will of the majority? Abolish the damn thing.
Matthew, the House of Representatives (the lower house of Congress) did exactly that, way back in the early 1800's, by llimiting the amount of time a representative could speak on the floor. The only time a filibuster has worked in the Senate is when the speaker stays at the podium until there is no longer a quorum to take a vote. That almost never happened, however, at least not on important issues. Thus, your speculation that the filibuster serves little or no purpose is largely correct.
Great overview! I wasn't aware of this history.
The current filibuster rules are not a good thing. While it's true that other business can proceed, the deemed filibuster halts forever the legislation that the 41 object to. Do you think the health care bill would have been so twisted and hijacked if the Republicans were obliged to stage an old-fashioned filibuster?

Anyway, thanks for posting what a modern day filibuster really is. There have been lots of misconceptions floating around.
Alan, thanks.

Abrawang, I believe we're in agreement. Thanks for stopping by.
As others have pointed out, a senator who must actually speak to maintain a filibuster can look like a hero, like Jimmy Stewart/Mr. Smith, or a racist dinosaur like Strom Thurmond. I believe that under current Senate rules, Majority Leader Reid could force a real filibuster. But, you know, it would be oh, so ungentlemanly for him to do so, and so very inconvenient, because then the Senate must stay in session for all that time, and the majority wanting to stop the filibuster would have to be available for quorum calls to vote for cloture. When Thurmond spoke for 24 hours, senators favoring the civil rights act slept on cots in the corridors so they could jump right to the floor and vote. But, golly, it's not in the Constitution that our senators must actually work for what they get. But seriously, there should be a movement to force Reid to make them. It is the ONLY way to break the current log jam. Take it from a resident of California, where we need two thirds of both legislative houses to pass ANYTHING budgetary. Costless minority obstruction does not work.
David, excellent points. No wonder we keep hearing legislative horror stories out of California. Not something we should emmulate on a national level!