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.
Follow the author's Tumblr page: Electoral Dysfunction