The filibuster was once a measure of last resort. It is now used casually and consistently to obstruct legislation, debilitate the Senate and turn our government into an ineffective debate club.
- filibuster: a parliamentary tactic in which any legislator can talk endlessly (or even threaten to do so) in order to delay, and thereby prevent a vote on a given bill or proposal.
- cloture: the method used to end a filibuster whereby a “supermajority” of 60 members of the Senate vote to conclude all discussions on a bill.
A little history: The filibuster is not an American invention – Cato used it in Ancient Rome – but no modern legislative body has employed it with as much zeal as the United States. Speaking indefinitely to delay a vote on a bill seems like a parliamentary gimmick, but the procedure has been used hundreds of times in the US Congress. In Mr. Smith Goes to Washington, the title character of the film resorts to a filibuster to “do the right thing”. Strom Thrumond, on the other hand, presided over what is perhaps the most famous filibuster in US legislative history when he read for over 24 hours in opposition to the Civil Rights Act of 1957.
The current situation: The filibuster has always been a thorn in the side of almost every Congressional majority – both parties have used it over the past few decades. The difference now is that the practice is used so frequently that having a simple majority in the Senate (51 votes) is no longer enough. Even routine matters, like the appointment of federal judges and agency directors are held up until 60 votes are achieved. Frequent use of the filibuster is a good way for the Senate minority to prevent just about any legislation from passing. These days, most filibusters are not even carried out; the mere threat of one is enough to derail legislation. The current Senate minority party is basically saying “if we can’t govern, nobody will”. And if the current majority should happen to become the minority in the next Congress, there’s no reason to believe that they would behave any different. Call it retribution, call it political warfare, but don’t call it hope. As you can see below, the level of political obstruction we are witnessing is historically unique.
The problem: As Francis Fukuyama recently told Thomas Friedman for the New York Times
“There is a crisis of authority, and we’re not prepared to think about it in these terms…When Americans think about the problem of government, it is always about constraining the government and limiting its scope…But we forget that government was also created to act and make decisions.”
Checks and balances are good, but after a point, they are burdensome. Given that the country is divided 50-50 on many issues and the intensity of that polarization, it is unlikely that any party will amass the 60 votes needed to consistently invoke the cloture needed to circumvent filibusters. Friedman goes on to describe the end result:
To put it another way, says Fukuyama, America’s collection of minority special-interest groups is now bigger, more mobilized and richer than ever, while all the mechanisms to enforce the will of the majority are weaker than ever. The effect of this is either legislative paralysis or suboptimal, Rube Goldberg-esque, patched-together-compromises, often made in response to crises with no due diligence. That is our vetocracy.
Perhaps we have been lucky that until now, this flaw in our Constitution has not been exploited to its fullest potential. It took 200 years for this flaw to be made obvious, and now that it has, it does not look like it’s going to get any better any time soon.