Teary-eyed nostalgists may see the bill-blocking procedure called the filibuster as a chief reason that the Senate has been called "the world's greatest deliberative body," but anyone with a passing knowledge of history knows this is ridiculous. The filibuster has played a fairly minor role in the Senate until recent decades, during which it has become the greatest threat to that reputation for deliberation. Though exact numbers are hard to establish, the occurrence of filibusters has clearly exploded, from single digits per Congress in the 1950s and '60s to more than 100 in recent terms.
The rare exception has become the rule that is crippling government.
The Senate has the power to halt this trend by revising its rules. Yet a majority of senators last month rejected several proposals to do just that.
Reformers should not give up, though. And their next push may succeed if they frame their revision not as a radical overhaul of a famously tradition-bound body, but as a modest tweak that keeps the current rules but puts the onus where it belongs: on the filibusterers.
The filibuster is actually an unintentional byproduct of an 1806 housecleaning that removed the parliamentary mechanism for majorities to end debate; another 30 years elapsed before the first filibuster occurred. That brief history reveals two key points: The filibuster was never part of the intentional design of the Senate, and it exists because opportunistic members are willing to exploit this void in the rules.
Forget 'Mr. Smith Goes to Washington'
Senators have always had plenty of ways to delay matters. Nonetheless, most people think of the filibuster as an endless speech à la Jimmy Stewart as Mr. Smith. There have been a notable handful of such speeches in Senate history, but the only reason real-life senators chose that tactic was to attract attention. If the goal was merely to delay or kill a bill, there were always less-exhausting options.
So it may seem amazing that filibusters were relatively rare events until recent decades. The reason is that senators saw filibusters as an affront to themselves and the institution, and actively discouraged them.
Those norms have now collapsed. It would have been no surprise, even under the old order, to find opponents filibustering something as high-profile as heath-care reform. But filibusters have proliferated on all sorts of bills and nominations, so it is now commonplace to find senators blocking popular measures that they themselves end up supporting on final passage. That has little or no precedent. Some of this amounts to old-fashioned horse-trading, where senators use the threat of delay to extract additional concessions even on bills they like. Most, however, reflect the new partisan reality in which senators feel bound to support their party's efforts to block a bill. Indeed, the leader of today's Republican minority, Sen. Mitch McConnell, openly brags about his success in organizing filibusters of practically everything he can.
Increased polarization makes it unlikely senators will ever voluntarily return to the days when filibusters were rare. But since even uncontroversial bills often lead to spasms of delay, it is clear that the Senate must update its rules in order to be able to deal with matters that large majorities of its members favor.
But how? Critics complain that the majoritarian House systematically excludes the minority party from policymaking, while the Senate gives the minority a virtually unfettered veto. Is there a happy medium to be struck?
We think so. The key is recognizing the filibuster for what it has been during the vast majority of Senate history: an act of extraordinary resistance. Senate norms once ensured that only the most intolerable proposals (to various senators) generated filibusters, so there was no reason to make them particularly difficult to mount. Instead, the most difficult part of the whole process is breaking filibusters – by a vote of a supermajority of senators, a process known as "cloture" – not starting them.
That unequal division of labor makes no sense in today's filibuster-happy Senate. As it currently stands, senators can filibuster merely by not voting for cloture; they do not even need to vote against it. It would be more faithful to Senate tradition to make filibustering senators vote to sustain their filibuster, a sort of reverse cloture.
Blocking bills shouldn't be effortless
Here is how it would work. Rather than forcing its opponents to come up with 60 votes to end a filibuster, its proponents would need to provide 41 votes to continue delaying. That maintains the current set of rules but puts the onus on filibustering senators to do simple things like show up and vote.
We would also streamline the process by shortening the time needed before and after a cloture vote and by limiting filibusters to the vote for final passage. It is contrary to the notion of deliberation, for instance, to use the filibuster to prevent the Senate from even considering a bill. The principle is simple: Preventing the Senate from acting should be possible, but it should not be effortless.
This piece of jujitsu would accomplish several things. It would raise the cost of filibustering, making it unlikely that noncontroversial bills would encounter endless delays. (This would also have implications for the practice of placing "holds" on bills, since it would allow the Senate to proceed more quickly over the objections of a single senator.) And senators would have to work hard – as they once did – to prevent high-profile bills from coming to a vote.
The explosion of filibusters is at odds with the Senate's history and undercuts its ability to function. This must be fixed to restore the Senate to what it was intended to be: a body dedicated to debating and deciding key issues facing the nation.