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Filibuster Fight Isn’t Over

Until the filibuster rules change for legislation as well as for nominees, a minority of Senators can continue to seriously hamper the chamber’s effectiveness.

December 3, 2013

Cross­pos­ted on The Hill

The Senate’s dramatic curtail­ing of fili­buster use for exec­ut­ive and judi­cial nomin­ees is a substan­tial break with the past. But most comment­at­ors have failed to note that the fili­buster in its current form is itself a relat­ively recent devel­op­ment. The ‘mod­ern’ fili­buster, too, has design flaws that have contrib­uted to unpre­ced­en­ted levels of obstruc­tion in recent years. Because last month’s change in the fili­buster rules applies only to nomin­ees, these flaws will continue to threaten the Senate’s abil­ity to pass legis­la­tion and govern. 

The popu­lar image of the fili­buster — with a senator read­ing the diction­ary or quot­ing from the Bible to delay a vote — bears no resemb­lance to the fili­buster in its modern form. These days, speak­ing fili­busters are vanish­ingly rare. Since proced­ural changes in the 1970s, senat­ors can fili­buster without saying a single word. The burden is on the major­ity to garner 60 votes to halt the obstruc­tion. With polit­ical polar­iz­a­tion reach­ing new heights in recent years — and Senate collegi­al­ity hitting new lows — the modern fili­buster has effect­ively become a minor­ity veto.

It wasn’t always like this. In recent years, the number of motions to end debate (called cloture motions) has risen dramat­ic­ally, reflect­ing a profound shift in how busi­ness is done in the Senate. Accord­ing to Senate data, 391 cloture motions were filed from 2006–2012 — more than the total number filed in the 70 years between 1917, when the cloture rule was created, and 1988, the last year of Ronald Reagan’s pres­id­ency.

The impact on Senate productiv­ity has been signi­fic­ant. Accord­ing to a Bren­nan Center analysis, in 2011–2012, the Senate passed a record low 3.96 percent of bills intro­duced in the cham­ber, a 51 percent decrease from 2005–2006 and an 85 percent decrease from the high in 1955–1956.

Debates over cloture have also crowded out other Senate activ­ity. In the last three Congresses, the percent­age of Senate floor activ­ity devoted to cloture has been more than 50 percent higher than any other time since at least World War II.

Iron­ic­ally, the fili­buster also under­mines open debate in the Senate. Most fili­busters are done silently and behind closed doors, blunt­ing legis­lat­ive account­ab­il­ity and trans­par­ency and giving proced­ure preced­ence over substant­ive lawmak­ing.

Although the rules of the game have now changed for most nomin­a­tions, the fili­buster rule — and accom­pa­ny­ing abuse — is still alive and well for legis­lat­ive activ­ity. In fact, the very same day the Senate changed the fili­buster rules for pres­id­en­tial nomin­ees, a Senate minor­ity blocked a major defense author­iz­a­tion bill from moving forward. Until the fili­buster rules change for legis­la­tion as well as for nomin­ees, a minor­ity of Senat­ors can continue to seri­ously hamper the cham­ber’s effect­ive­ness.

The stakes of contin­ued obstruc­tion are high. A recent Gallup poll found that the percent­age of Amer­ic­ans who approve of how Congress is doing its job has fallen to single digits — the lowest level in history. The Amer­ican people know that our govern­ment isn’t work­ing.

To regain Amer­ic­ans’ confid­ence, the Senate needs to curb fili­buster abuse in the legis­lat­ive process by creat­ing rules that facil­it­ate debate and delib­er­a­tion and impose some costs on obstruc­tion. Recent propos­als include requir­ing senat­ors to stay on the floor during a fili­buster and actu­ally debate, shift­ing the burden to require at least 40 votes to sustain a fili­buster, rather than requir­ing 60 votes to break one, or redu­cing the number of votes required to break a fili­buster.

Until reforms for the fili­buster of legis­la­tion are adop­ted, the “world’s greatest delib­er­at­ive body,” as the Senate is often called, will continue to be hampered not only in its abil­ity to delib­er­ate, but to govern effect­ively at all.

(Photo: Think­stock)