Did you know that the super-committee’s recommendations could have passed the Senate with only fifty-one votes? That is, if the super-committee had made any recommendations, they could have passed the Senate without the threat of a filibuster.
Does anyone other than politics junkies or James Stewart fans even know what a filibuster actually is anymore? I Googled when was the last filibuster in the United States Senate. Do you know the answer? It was in 1992, almost twenty years ago. That was shortly after Ronald Reagan left office. Most filibusters last from ten to twenty hours. Strom Thurmond spoke for twenty-four hours on the Senate floor in 1957. A team of Southern Democrats conducted a talkathon in the 1960s that lasted about seventy-five hours, or three days. That’s it. Every senator has an internal timer that will take him off the floor no matter how little water he drinks. Ten to twenty hours is the longest a senator can hold the floor without going to the bathroom – no chamber pots allowed in the senatorial chamber.
So ask a Washington know-it-all why we don’t have filibusters anymore. Why don’t they occur, even though filibusters supposedly explain why the Senate needs sixty votes to pass anything? You’ll get some complicated procedural answer about how Senate rules require a three-fifths majority for a vote of cloture. Don’t you even pause to consider whether the answer is true or not. Every word of it is true, but it doesn’t answer the question at all. The reason you don’t see filibusters in the Senate anymore is that the senators don’t want to filibuster.
Let’s say the Democrats want to bring a bill to the floor for a vote, but they have only fifty-nine votes to support it. The Republicans have forty-one votes in opposition. The Republicans say they’re going to filibuster the bill, which means they threaten to take the floor and debate the bill for some indefinitely long period of time, measured in hours. The speaker may read from the Bible or from a cookbook, he may talk about his hometown or he may even talk about the bill. The Democrats can’t stop him because they need sixty votes to cut off debate. One vote shy of a three-fifths majority, they have to listen to the speaker blab.
Why is this matter of Senate procedure even a question? For years now we’ve said the Congress is dysfunctional. What is the main reason we know it’s dysfunctional? Well, you can’t pass anything in the Senate without sixty votes, and the majority party rarely has sixty votes. Why do you need sixty votes to pass legislation in the Senate? Because the minority threatens a filibuster in every case. Since the majority can’t muster sixty votes to force an end to debate, and because it expects the minority to make good on its threat, it backs down.
Have you heard anyone explain why the majority backs down in every case? I haven’t. Perhaps someone thinks it would harm the Senate’s reputation if its business ground to a halt for twenty-four hours. Perhaps they think the mere spectacle of a filibuster would be the type of political theater the Senate’s reputation doesn’t need right now. Get real. The Senate’s reputation is about as low as it can go right now. It has been low since it stopped passing bills. No filibuster will harm a reputation that’s already in the toilet.
The behavior surrounding filibusters has become so institutionalized that the minority doesn’t even have to threaten a filibuster anymore. All the senators assume now that you need sixty votes to pass anything, and that’s the end of the matter. If these sorry creatures took their jobs, their conflicts and their legislative duties seriously, the majority party would force the minority party to carry out its threat. Challenge the filibusterers to hold the floor as long as they can. Give them the satisfaction of making their demonstration, then pass the bill when the opposition party fags out. That’s what happened in the civil rights debates nearly fifty years ago. Southern Democrats tried filibusters to block new civil rights legislation, but the bills passed anyway. A filibuster is a visible demonstration of dissent – it is not a successful parliamentary tool to block legislation over the long term.
Reputations aside, the only other argument in favor of the current practice is the argument to efficiency. You avoid filibusters to keep the Senate’s business going. But the Senate’s productivity is already near zero, partly because the institutionalized sixty-vote requirement resigns everyone to helplessness. That’s not quite true – the Senate occasionally passes something. Not so long ago, it managed to pass the Dodd-Frank financial reform bill with votes from both parties. I’d say that bill was quite an exception. It was so general and so symbolically important, it couldn’t help but pass.
These arguments also ignore the Senate’s ability to change its own rules. Fairly recently some senators contemplated changing the Senate’s rules with something less a two-thirds majority, a constitutional reinterpretation so apparently radical that insiders dubbed it the nuclear option. What is so radical about changing the rule? Nothing much, except that to change Senate tradition does seem rather apocalyptic to club members. To outsiders, it’s an odd tempest, since the Senate doesn’t allow real filibusters anyway. The institution found itself tied in knots over a rule change that would affect something that doesn’t happen anyway.
All of these reflections return us to the dysfunctionality we alluded to above. The tacit agreement between the parties not to allow filibusters forms an interesting foundation stone in this pattern of dysfunctionality. When partisanship has worn you down, you think: “Well, at least we don’t have to worry about filibusters. Do you know how tiring they are? That kind of theater sucks up a lot of oxygen, even when you’re not the speaker. Thank God we don’t have to go through those.” In other words, stay with the devil you know. Stay with an institutional pattern of behavior that’s discouraging but predictable. Stay with a pattern of behavior that lets you make excuses. When citizens complain, senators can point to their poor reputations and say with still more pessimism, “What have we got to lose? We’re doing our best. Get off our backs.”
You can tell yourself that, but the citizens who gave you this high honor and responsibility know better: you’re not doing your best.