What little Americans know about the filibuster is due to James Stewart‘s portrayal of Senator Jefferson Smith in the classic movie, Mr. Smith Goes to Washington. In the movie, Senator Smith filibusters a fraudulent land deal until finally collapsing on the Senate floor. This past week, it was the filibuster that collapsed on the Senate floor as the “nuclear option” was invoked by Senate Republicans.
History of the filibuster.
The early Congress did not recognize the ability to filibuster. Senators could invoke a “previous question motion,” which meant that a simple majority could vote to end debate. Vice President Aaron Burr, as President of the Senate, streamlined the Senate rules in 1805 by persuading fellow Senators to abandon cutting off debate. That move allowed for the possibility of unlimited debate.
The first filibuster did not occur until 1837, and the filibuster was seldom used in the 19th century. It was not until 1917 that the Senate adopted Rule 22 or the Cloture Rule, to create a mechanism to halt a filibuster. Rule 22 required a vote of two-thirds of the Senate (then 64 of the 96 senators) to halt a filibuster.
Rule 22 came about in response to a request by President Woodrow Wilson to arm merchant marine vessels to protect them from U-boat attacks. A group of 11 progressive senators, led by Republican Robert La Follette of Wisconsin, blocked the bill.
Wilson was outraged and condemned “A little group of willful men, representing no opinion but their own … have rendered the great government of the United States helpless and contemptible.”
Filibuster rule changes.
From 1917 to 1970, only 58 cloture petitions were filed (about one per year), and cloture was invoked only eight times. From 1971 to 2006, the number of cloture petitions jumped to 26 per year and cloture was imposed one-quarter of the time. From 2007 to 2014, cloture petitions were filed 80 times a year and half of the cloture votes were approved.
As the use of the filibuster increased, the Senate looked at various ways to modify its use. In 1975, the Senate voted to make it easier to invoke cloture by requiring only a three-fifths vote instead of two-thirds. That would be a short-term solution with limited impact.
In 2005, Republicans controlled the Senate and were concerned that Democrats would not approve nominees of George W. Bush. Republicans argued that the use of the filibuster on judicial nominations violated the constitutional authority of the president to name judges with the “advice and consent” of a simple majority of the Senate. Sen. Trent Lott of Mississippi used the word “nuclear” during the debate, and the concept of the “nuclear option” developed.
Also in 2005, a “Gang of 14” senators, half Democrat and half Republican, reached a compromise to defuse the “nuclear option.” The Democrats promised not to filibuster Bush’s nominees except under “extraordinary circumstances,” and Republicans promised not to invoke the nuclear option unless they believed the Democrats used the filibuster in non-extraordinary circumstances.
On Nov. 21, 2013, the Democrats triggered the nuclear option and eliminated the filibuster for all nominees except for the Supreme Court. They accused Republicans of filibustering an extraordinary number of President Obama‘s nominees.
Republicans took back control of the Senate in the 2014 election and kept the Democratic rules in place. On April 6, 2017, Majority Leader Mitch McConnell extended the nuclear option to Supreme Court nominees after it was apparent that Democrats had the votes to filibuster the nomination of Neil Gorsuch to the court. The vote to change the rules to a simple majority passed 52-48 on a straight party-line vote, and the Senate then confirmed Gorsuch with 55 votes, as three Democrats joined the Republicans.
Implications of the nuclear option.
Now that the filibuster is dead in the nomination process, will it also fall by the wayside with respect to legislation? The answer is likely yes.
The larger question is whether the filibuster is a good or bad part of the legislative process? Many argue that the Constitution is premised on majority rights and the filibuster allows a minority to dictate public policy. In other words, it is undemocratic.
Supporters of the filibuster contend that it serves a useful purpose. Its use forces legislators to compromise in order to secure passage of major legislation. On controversial issues such as civil rights, a supermajority vote ensures that the legislation has widespread support and its passage was critical. When cloture was invoked on the 1964 Civil Rights Act after a 60-day filibuster, the first time cloture had been successful on a civil rights bill, it was a clear sign that national consensus had been achieved and a strong Civil Rights bill was needed.
Critics of the filibuster argue there is no need to mourn its death. The filibuster has been a tool to frustrate the will of the majority and to impede passage of important legislation.
Supporters counter that the death of the filibuster will lead to greater polarization, although that is hard to imagine. They argue that a simple majority vote will allow a president to appoint more extreme nominees and will allow the Senate to pass more extreme legislation. In addition, major legislation like Obamacare will be subject to “repeal and replacement” every time political control of the Senate shifts from one party to another.
Darryl Paulson is Emeritus Professor of Government at the University of South Florida in St. Petersburg.