Want to fix the filibuster? All it takes is guts
The problem with the Senate filibuster is not that there are too many of them. It is that there are too few. President Joe Biden is on the right track when he says he wants to see a return to the old days, when senators who wanted to block a bill had to take the floor and keep talking, like a reprise of Jimmy Stewart’s famous scene in the 1939 movie “Mr. Smith Goes to Washington.”
The legislative ideal behind the filibuster, a maneuver almost as old as the Senate itself, is to encourage the culture the Founders intended. It was set up to be an institution lubricated by deliberation and compromise, and a place where the views of the minority are given a hearing.
That explains why, despite the liberal cry to do away with the filibuster, only about 1 in 5 Democratic senators say they want to see it abolished, according to a survey done by the Washington Post’s Power Up team.
But for the filibuster to work the way it is supposed to, rather than as a means of blowing up the legislative machinery, the Senate needs to go further. It must make the filibuster painful enough to exact a price on the entire Senate. If one senator wants to obstruct a bill by talking it to death, the 99 other senators should have to be present in the chamber as well, foregoing whatever fundraisers or other events they may have scheduled.
One of the reasons the faux filibuster has become so common is that it imposes no penalty, except on the idea that a majority should be able to work its will in a democracy.
If you go by the frequency of cloture motions — the procedure by which 60 votes are required to cut off debate on a measure — it is clear that senators who are in the minority use procedural gambits to gum up the works far more frequently than they did in the past. In the Congress of 2019 and 2020, there were 328 cloture motions filed; back in the 1950s, this generally happened one or two times at most during a session.
What passes for a filibuster in modern times usually consists of a weary clerk reading a roll call over and over to an empty chamber while the senators themselves go on about their business. Every so often, a majority leader orders an all-nighter in which metal cots are rolled out for the senators to rest. Then-Senate Majority Leader Harry Reid, DNev., pulled that stunt in 2007 when Republicans threatened to filibuster a resolution calling for troops to begin leaving Iraq. Mr. Reid gave in the following day.
Senate Majority Leader Bill Frist, R-Tenn., also hauled out the cots when Democrats were blocking judicial appointments in 2003. That no one took any of this seriously became clear when Sen. Tom Harkin, D-Iowa, held up a sign in the early evening announcing that he planned to head home to watch “The Bachelor.”
Occasionally, grandstanders in the Senate’s ranks stage a pointless talkathon simply for the attention it can draw. (See: Cruz, Ted.) That no doubt would still happen if the “speaking filibuster” became the norm, but it would be less likely to be tolerated if it meant that all of a senator’s colleagues had to sit there and listen.
The beauty of doing it this way is that it would require no change to the Senate rules at all, just a leader with the guts to demand the presence of senators in the chamber.
We saw that happen in 1988, when Majority Leader Robert Byrd, DW.Va., a parliamentary master, got frustrated over a GOP filibuster of campaign finance legislation and called for a quorum of 51 members to appear. When Republicans boycotted the quorum vote, Byrd ordered the sergeant-at-arms to round up and arrest the absent senators. Sen. Bob Packwood, R-Ore., attempted to barricade himself in his office during the midnight manhunt and was carried onto the Senate floor feet first.
“The knock on the door and the forced entry smack of Nazi Germany, smack of communist Russia,” Sen. Arlen Specter, R-Pa., sputtered, claiming that senators were treated more roughly than “even those accused of the most heinous crimes.” For his part, Mr. Packwood said: “I rather enjoyed it.”
It is worth noting that even after all of that, Byrd failed to get a vote on the campaign finance bill. But he made his point about the obstructionism of those who were blocking it, and he probably made the Republican minority think twice about using the tactic again. The next Congress saw the number of cloture motions drop dramatically, from 54 to 38.