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Analysis

How Filibusters Are Like Zombies

Like the undead, filibusters are hard to kill. Unlike the undead, filibusters have a worthy purpose.

March 25, 2015

Is the fili­buster on the verge of extinc­tion? The pree­m­in­ent Repub­lican colum­nist Charles Krau­tham­mer’s wants it dead. The reli­ably thought­ful Ezra Klein thinks it’s on its way out.  

But the fili­buster is a zombie. It never dies. And it eats brains — espe­cially pundit brains.

Like many zombies, the fili­buster was created by acci­dent and by a bad man. In 1805, not long after he killed Alex­an­der Hamilton, Vice Pres­id­ent Aaron Burr proposed changes to the Senate rules. The next year, the Senate adop­ted many of them, one of which created the oppor­tun­ity for Senat­ors to fili­buster. Since then, every effort to kill the fili­buster — and there have been many — has failed.

It took the Senate a few decades to feel the full force of its mistake. But by the early 1840s, as the battles over a national bank raged, Kentuck­y’s Sen. Henry Clay tried to limit the fili­buster. However, even the redoubt­able Clay could not kill it.

In 1917, the Senate finally managed to lay a hand on the fili­buster. But it did not die.

As the year opened, a devast­at­ing German U-boat campaign sink­ing neut­ral Amer­ican merchant ships was under way. Pres­id­ent Woodrow Wilson sought author­iz­a­tion to arm the vessels. But a group of Repub­lican Senat­ors used the fili­buster to stop the proposal.

The Pres­id­ent howled in protest: the “Senate of the United States is the only legis­lat­ive body in the world which cannot act when its major­ity is ready for action. A little group of will­ful men, repres­ent­ing no opin­ion but their own, have rendered the great govern­ment of the United States help­less and contempt­ible.” Sound famil­iar?

The public, incensed that a small clique of Senat­ors was doom­ing merchant marines to death, burned Senat­ors in effigy. The Senate got the message and created a way to end fili­busters: cloture. The year cloture was created is import­ant. Amer­ican declared war on Germany a month after the Senate produced the rule. Cloture came into being only as an urgent national secur­ity neces­sity.

(For those not steeped in the arcane language of fili­busters, a quick primer. A fili­buster is, in essence, hold­ing the floor of the cham­ber and thereby deny­ing the Senate an oppor­tun­ity to vote on the pending matter. Cloture is a proced­ure for getting around a fili­buster. It suspends the fili­buster long enough for the Senate to vote on whether to end the debate. If 60 votes can be mustered to end the fili­buster, then the vote on the pending matter can take place).

Iron­ic­ally, cloture did not limit the fili­busters; it insti­tu­tion­al­ized it. In the near-century since cloture was intro­duced, the fili­buster has shambled on.

It has grown partic­u­larly viru­lent in the last 25 years. Recently, calls for its elim­in­a­tion have grown stronger and stronger. No wonder. The fili­buster runs counter to our basic sense of demo­cracy: the major­ity rules. By effect­ively requir­ing 60 votes to pass any slightly contro­ver­sial bill, it has created a super­ma­jor­ity rule in the Senate.

Why then has the fili­buster lived so long and grown so strong? Simple. Senat­ors like it. In fact, they need it. From the moment one party takes control of the cham­ber, Senat­ors in that party know that they may be only two years away from slip­ping into the minor­ity and irrel­ev­ance. Many of them look across the Hill at the House and see just how awful it is to be constantly steam­rolled. In the Senate, it’s an insult to be “Housey.”

Sure, in the midst of a bitter fight over a partic­u­lar bill, they may decry the fili­buster as undemo­cratic, but in their hearts they know just how much they need the fili­buster. See, it’s not the fili­buster they hate: it’s abuse of the fili­buster.

Every once in a while, the fili­buster comes out to find some pundit brains. Last month it found Charles Krau­tham­mer’s. Like many before him, Krau­tham­mer has been driven to hate the fili­buster by his desire for a partic­u­lar polit­ical outcome.

If we kill the fili­buster, he dreams, “the GOP could be send­ing bill after bill to the pres­id­ent’s desk — on tax reform, trade, Obama­care and, if it has the guts, immig­ra­tion. Obama’s choice? Sign, veto or nego­ti­ate a comprom­ise.”

Holy cow. If you thought getting to 60 to pass a bill was hard, just try over­com­ing a veto.

Oh, but that’s not relev­ant. Krau­tham­mer does not want to abol­ish the fili­buster in order to get policies imple­men­ted. He wants a full-scale show­down between the Pres­id­ent and the legis­lat­ive branch. He wants to “clarify the antag­on­ists.”

That’s just substi­tut­ing one form of abuse (fili­buster abuse) for another (veto bait).

Under the right circum­stances, though, the fili­buster can serve as a means of ensur­ing comprom­ise and bipar­tis­an­ship. Under the wrong circum­stances, it can be endlessly abused. Many of our prob­lems with the fili­buster today stem not from the fili­buster per se but with the circum­stances we find ourselves in: deeply polar­ized parties fight­ing over core prin­ciples and aching for confront­a­tion.

That does­n’t mean the fili­buster is an inno­cent party. There are plenty of ways it can and should be modi­fied to encour­age productiv­ity and bipar­tis­an­ship. Here are a few I like:

  • We should keep the changes to the rule imple­men­ted for nomin­a­tions.
  • We should modify the rule to fast track bills and nomin­ees coming out of commit­tee with super­ma­jor­it­ies. As I proposed earlier this year, bills and nomin­ees that come out of commit­tee with 80 percent or more of its members in favor, should be exped­ited for passage on the floor. A cloture vote should be guar­an­teed within three hours of the legis­la­tion being called up for full Senate consid­er­a­tion. And post-cloture debate should be limited to three hours.
  • We should prohibit fruit­less second and third order fili­busters, i.e. fili­busters that occur for the sole purpose of wast­ing time after cloture has already been invoked.

Imple­ment­ing these reforms is not easy. It took Sen. Chuck Grass­ley (R-Iowa) more than a decade to elim­in­ate anonym­ous holds. It’s hard to tame a zombie. But it’s got to be better than letting it eat your brain.

The views expressed are the author’s own and not neces­sar­ily those of the Bren­nan Center for Justice.

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