How and Why the Senate Must Reform the Filibuster

Tom McClintock
U.S. House of Representatives

Tom McClintockTom McClintock has served as the U.S. Representative for California’s 4th congressional district since 2009. He received his B.A. from UCLA. He is a senior member of the House Natural Resources Committee, where he chairs the Subcommittee on Federal Lands, and serves on the House Budget Committee. Prior to his election to Congress, he served for 22 years in the California legislature and ran for governor in California’s recall election in 2003.

The parliamentary tactic of a minority thwarting the will of the majority by talking a bill to death is nothing new. The Roman Senate’s rules required business to conclude before sunset. Cato the Younger discovered that he could block Julius Caesar’s initiatives by talking until dusk descended on the Senate chamber.

Caesar responded by throwing Cato in jail. Common parliamentary practice dealt with the tactic by allowing a motion to “order the previous question”—in other words, to close debate and vote—often requiring a two-thirds vote. This super-majority threshold to close debate is rooted in the principle that a significant minority should be able to extend debate. After all, a minority exists to convince the majority to its way of thinking and often identifies flaws in a proposal that a majority doesn’t see in its rush to adopt. This is the fruit of deliberation and the essence of deliberative assemblies.

But this parliamentary principle assumes that there is an actual debate, that it is germane to the subject at hand, and that it is not conducted in a manifestly dilatory manner.

Within a few decades of the Amer­ican Founding, senators rediscovered Cato’s practice of killing a bill by killing time, and the Senate filibuster was born. Yet it was rarely used because of its natural limitations. A filibustering senator had to remain for the most part at his desk and on his feet. In 1908, for example, Robert La Follette of Wisconsin held the floor for 18 hours—speaking for long periods of time, and demanding dozens of quorum calls and roll-call votes—to stall a banking reform bill. The bill eventually passed, but not without significant consternation on both sides, due to the fact that until the filibustered matter was disposed of, the Senate could not move on to other business.

The filibuster is fundamentally different today because of two changes to Senate rules—changes that explain the body’s current inability to act. The first occurred in 1917 in response to a filibuster of something called the Armed Ship Bill. The Senate adopted a cloture rule setting the threshold for ending debate at two-thirds of those present and voting, later changed to three-fifths of the whole Senate. Even then, this change was in keeping with common parliamentary practice. And even after its passage, the filibuster’s physically demanding nature meant that it was seldom employed. There were only 58 filibusters in the next 52 years—barely one per year.

But beginning in 1970, the number of filibusters exploded by a magnitude of 36-fold. There have been 1,700 in the 46 years since then. Why? Because in 1970, Senate Majority Leader Mike Mansfield instituted a “two-track” system that allowed the Senate, by unanimous consent or the approval of the minority leader, to bypass a filibustered bill and go on to another. This relieved a filibustering senator of the job of having to talk through the night and it relieved his colleagues of their frustration.

The filibuster thus entered the couch-potato world of virtual reality, where an actual speech is no longer required to block a vote. Today the mere threat of a filibuster suffices to kill a bill as the Senate shrugs and goes on to other business. The filibuster has been stripped of all the unpleasantness that discouraged its use and encouraged compromise and resolution.

Whereas the filibuster prior to 1970 was designed to ensure debate, after adoption of the two-track system it mutated into a procedure that prevents debate. As a result, the greatest deliberative body in the world now has difficulty deliberating on anything of importance.

During the last session of Congress, the House sent hundreds of bills to the Senate, including appropriations bills required to fund the government. In­stead of amending those bills and sending them back to the House, the Senate seized up—not for lack of majority will, but because of minority recalcitrance and the post-1970 filibuster.