BOB MELVILLE: Killing the filibuster

They huddled, waiting for the next play call. The quarterback glanced at the scoreboard. Their rivals up by six. After a long drive, he had his team on the defenders’ 22-yard line. 18 seconds left in the game and counting. No timeouts. The entire season down to one play.

The quarterback looked at his teammates. After an incredible comeback, their confidence was sky-high. Just one more play, and they would win it all. He called a pass to his best receiver, a 6’ 4” tight end who towered over the defensive backs. A “money” receiver who never dropped a ball with the game on the line.

Fourteen seconds on the clock. The players looked at their leader one last time, preparing to break from the huddle. The quarterback shot them a broad grin, “Let’s do this.”

A voice from somewhere in the huddle, “I think I can.”

The players turned to the team’s star running back. He was staring at the ground.

“I think I can,” he repeated.

“You think you can … what?,” asked the quarterback.

“I think I can win the game,” the running back said, looking up at his teammates.

“I already called the play. Just block your man,” said the quarterback sternly. He looked up again at the scoreboard. Nine seconds remaining.

“I—think—I can, …, I—think—I—can, …, I—think—I … ,” the running back repeated, more loudly—and slowly—than before.

Stunned, the quarterback, snarled, “What the hell are you doing?”

The running back leveled his gaze at the quarterback and pronounced, “Filibuster.”

Stunned, the quarterback screamed, “There’s no filibuster in football.”

Football has its share of annoyances. Commercial timeouts. Instant replay challenges. But, we can be grateful for one thing, it doesn’t have the filibuster.

Only the U.S. Senate can boast of that mystifying rule. Like many traditions, the filibuster has outlived its creators and the successive generations who embraced it. Like some traditions, it has outlasted the reasons for its creation.

What is the filibuster? A quaint parliamentary procedure available to senators to prevent action on a proposed bill — a legislative tactic for shifting attention from the Senate to a senator. A device for bringing the body to a virtual halt.  One senator can block or delay a vote on any matter (except nominations) by simply extending debate for as long as he or she is physically able.

How does the filibuster work? Traditionally, senators used a strategy of “talking a bill to death” (i.e., the talking filibuster). For instance, a senator would speak on the floor for hours on any subject (no matter how irrelevant).  Once begun, the filibuster would not end until the garrulous senator ended it.  Under Senate Rule XXII, the entire Senate also could end the filibuster by invoking cloture, a vote requiring “three-fifths of the senators duly chosen and sworn" (60 of 100 senators).

A few senators have used the filibuster to similar effect. Wisconsin Sen. Robert La Follette used the filibuster to demand free speech during World War I. Louisiana Sen. Huey Long used the filibuster to fight bills he saw as benefitting the rich at the expense of the poor. Sadly, the filibuster has been more typically used for far less principled purposes.

During the 19th century and into the early 20th century, filibusters became an increasingly popular — and annoying — tactic for delaying or killing legislation objectionable to a minority of senators. Given the enthusiasm of many senators for verbosity and the Senate’s lack of a rule for ending filibusters, they became fairly common practice.

Unsurprisingly, frustrations with filibusters boiled over.

In 1917, the Senate adopted a cloture rule to enable it to end filibusters with a two-thirds majority vote. In 1919, the Senate invoked cloture for the first time, using the new rule to end a filibuster against the Treaty of Versailles. The cloture rule did little to weaken the filibuster as a bill-blocking tactic. In fact, due to the two-thirds approval threshold, it was rarely invoked. From 1917 to 1970, there were only 49 cloture votes of which few succeeded.

The filibuster became the favored tactic for obstructing progress. Southern Democrats, for example, used filibusters to block civil rights legislation (e.g., anti-lynching bills). South Carolina Sen. Strom Thurmond filibustered the 1957 Civil Rights Act for over 24 hours, reading laws verbatim and reciting Washington's farewell address. Southern senators also filibustered for 75 hours in a vain attempt to block the 1964 Civil Rights Act.

Exasperation with the filibuster, and calls for reform, escalated.

In 1974, the Congressional Budget and Impoundment Control Act enabled the Senate to approve budget-related legislation with a simple majority (the budget reconciliation process). Several bills have been approved via this process, including the Bush tax cuts, Obamacare Part II, the Trump tax cuts and, most recently, Biden’s American Rescue Plan Act.  In 1975, the Senate reduced the cloture threshold from 2/3 to 3/5 (i.e., 60 of 100 senators). In 2013 and 2017, the Senate reduced the cloture threshold for nominations to a simple majority.

Such reforms have done little to diminish the filibuster’s power. In our hyper-partisan national politics, the mere threat of a filibuster (without floor debate) can bring leverage (and attention). While a threatened filibuster lacks the spectacle of a talking filibuster, its increased use has created a bigger problem. It has turned the Senate into a slothful institution, requiring sixty votes for any legislation action not involving nominations or budget reconciliation. In 2009, the filibuster threat of one Senator forced the removal of Obamacare’s public option provision.

The filibuster has its defenders. Some Senators praise it as one of the Senate’s treasured traditions, a precious ritual of a sacred institution. Some argue that reforming or eliminating the filibuster would increase the Senate’s vulnerability to other reforms, changes that could irrevocably alter the Senate’s culture. These arguments ignore the obvious, that there is considerable precedent for reforming the filibuster (see above).

Some senators extol the virtues of the filibuster as a check against the potential tyranny of political majorities or a mechanism for forcing bipartisan compromise. After setting aside the sad irony of using the filibuster to block civil rights legislation in the name of another minority (i.e., Southern Democrats), it is time to reassess this argument.

The evidence is clear. If anything, the filibuster has made the Senate less bipartisan, less productive and less popular.

The 60-vote threshold rule has made it extremely hard for Congress to pass any legislation with even the hint of controversy. From 1960 to 2010, the percent of bills introduced in the Senate that became law fell from 25% to less than 3%. Most major legislation passed along strict party lines.

The most recent Congress, the 116th Congress, passed only 194 bills -- the fewest in over 50 years. The next most unproductive Congress, the 112th Congress (2011–13), passed 284 bills. A nd compared to the 80th Congress, lambasted by President Harry Truman as the “Do-Nothing Congress, ” the 116th and 112th Congresses were slackers.

All the while the filibuster has flourished, the public’s faith in Congress has plummeted. According to a 2019 Gallup poll, 75% of Americans disapprove of Congress’ performance and only 20% approve. Over the last ten years, Congress’ approval ratings have languished below 30%.

It’s not fair to blame the Senate’s performance and disfavor solely on the filibuster, but it is fair to demand an accounting. At a time when the nation faces unprecedented challenges, we have a sluggish, if not paralyzed Senate. If anything, the filibuster has become the most compelling symbol of our dysfunctional Senate. A procedural hurdle—red tape—that wastes time and impedes action in the name of tradition.

The result? Political posturing. Grandstanding and finger-pointing. Speeches. Tweets.  Shutdowns.  Paralysis.  Is this the Senate we want?  The one we need?

At the head of a long table in a modern conference room with large windows overlooking a vibrant downtown, an impressive, almost regal, woman in classic business attire presides. After some introductions and opening remarks to the other attendees, she turns to the business at hand.

“As you know, we are on the precipice of insolvency. At our last board meeting, we hired consultants to prepare a comprehensive restructuring plan, one that would enable us to emerge from bankruptcy with a new vision and business model.”

The CEO continues, “We have a big decision to make today, perhaps the biggest decision we will ever make about this company. It is vital that we make that decision with our eyes open, fully aware of the challenges ahead. With that in mind, I will ask our consultants to present their recommended restructuring plan.”

For over two hours, the consultants made their presentation and answered questions. The CEO turns to the board members and asks for final comments. After a long delay, the CEO adds solemnly, “If there are no questions, I request a motion to approve the restructuring plan.” The motion is made by one board member and quickly seconded by another. The CEO proceeds to call the question.

“I have a concern,” one board member ventures.

“And what is your concern?” responds the CEO, recognizing the board member as one of the founder’s descendants, one who had failed to attend several recent board meetings or show much interest in the company in recent years.

“I wonder if we could delay this vote until our next meeting,” queries the board member.

The CEO deliberately, almost coldly, responds, “Regrettably, as we discussed at our last meeting, we no longer have the luxury of time. If we don’t take this action, and do it now, we will have to close our doors in less than 90 days. What do you hope to gain by delay?”

The board member looked away briefly, gathered himself and stammered, “We’ve been a going concern for over 100 years and bankruptcy will ruin our reputation.”

The CEO addressed the entire board, “We have to vote on this motion now. It would be catastrophic and irresponsible for us to delay action further. I call the question.”

“In that case, I will filibuster,” threatens the board member.

The CEO shakes her head, smiles and calls the question. The motion carries. The company survives.

Thankfully, unlike the Senate, American business is not burdened by the filibuster.

The Senate should unburden itself. Given the formidable challenges facing our nation, the Senate should adopt a more businesslike approach to problem-solving. That effort should commence with jettisoning the filibuster. Failing that, the Senate should reduce the cloture threshold to 55 votes or redefine it around people, not Senators (e.g., Senate seats representing 60 percent of the population served).

And while we’re at it, let’s rid ourselves of some other pointless traditions like presidential turkey pardons, daylight savings time and arcane measures and weights (e.g., miles, pounds and ounces).