The English term “filibuster” derives from the Spanish filibustero, itself deriving originally from the Dutch vrijbuiter, ‘privateer, pirate, robber’ (also the root of English freebooter). The Spanish form entered the English language in the 1850s, as applied to military adventurers from the United States then operating in Central America and the Spanish West Indies.
Several people, including my wife, have asked me to explain this filibuster business in the U.S. Senate, when it can be used by the minority to thwart the majority, and how it works in practice. This struck me as an exquisitely boring topic, about which anyone’s curiosity could better be satisfied by looking up the relevant Wikipedia article, but as I read the various on-line sources I saw that it’s often explained with too much detail and complexity, making it easy to get lost in the corn maze. Anyway, Kathy asked, so, at the risk of posting a column that may actually attract fewer than zero views, I’ll attempt to boil it down to its essentials. Bear with me.
The strange word “filibuster” applies to the use of Senate rules of parliamentary procedure to stop all progress on a bill until a supermajority of 60 votes can be mustered to invoke “cloture” (analogous to what we in our parliamentary system refer to as “closure”), and bring debate to a halt.
It’s not in the Constitution. It’s purely a product of the Senate rules. The Framers designed Congress to work on a straightforward majoritarian basis, and the authors of the Federalist Papers actually detested the whole idea of a minority veto, with Hamilton writing this about the filibuster:
But its real operation is to embarrass the administration, to destroy the energy of the government, and to substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto, to the regular deliberations and decisions of a respectable majority…If a pertinacious minority can control the opinion of a majority, respecting the best mode of conducting it, the majority, in order that something may be done, must conform to the views of the minority; and thus the sense of the smaller number will overrule that of the greater, and give a tone to the national proceedings. Hence, tedious delays; continual negotiation and intrigue; contemptible compromises of the public good.
In the views of Madison, Hamilton and Jay, they’d already designed a system with ample chokepoints, more than sufficient to protect minority rights and ensure that lengthy debate and chances for sober second thought would attend any sort of controversial legislation. They wanted there to be all appropriate deliberation, but they still imagined a government that actually accomplished something from time to time. They’d all be bringing up their dinners at what the Senate has become.
Not being part of the original design, the filibuster wasn’t even possible at the outset, and still isn’t in the House, where majority continues to rule, but in the Senate, it arose by accident (!), an inadvertent artifact of a rule change that left it open for any member to debate anything for as long as he could stand there and argue. No fooling: nobody, not even the architects of the rule change that made it possible intended the filibuster to exist. Oh well! Once they figured out it was possible, Senators, perhaps inevitably, started to make use of it. Rules on “cloture” were subsequently put in place to impose some limits on the obstruction, providing for motions to finally close debate and bring the filibuster to an end, but the requirement was for 60 votes to invoke them, absent which the debate goes on (technically, therefore, it isn’t that a bill subject to filibuster requires supermajority approval, it’s that it takes a supermajority to stop debate and allow what would still be a majority vote to occur at all). That’s where it stands today.
In the old days, filibusters could create terrible delays, but had to end of their own accord at some point, cloture or not, because originally the filibuster had to be a “talking filibuster”, as portrayed most famously in Capra’s Mr. Smith Goes to Washington. Somebody actually had to stand there, holding the floor, and saying something, anything, to keep it going, and even the most determined blowhard could only stand there and yack for so long. The longest on record occurred when vile racist Strom Thurmond, (R) South Carolina, blathered on for 24 hours and 18 minutes, opposing the Civil Rights Act of 1957. Many assume this is still how the filibuster works. Not so! In an ultimately counterproductive attempt to prevent any one member from completely gumming up the gears, the rules were tweaked so that a Senator couldn’t stand there and bring the whole chamber to a halt pending his exhausted, dehydrated collapse. A “dual track” system was put in place, so that once a filibuster was started, the Senate could stop debate on the stalled bill, and move on to another matter.
Great, but the blowback was the elimination of the “talking” filibuster, with what many would describe as disastrous results. If the Senate simply moved on to another matter, then not only was nobody able, nobody was forced, to stand there and yip himself into a coma, and thus the filibuster became “virtual”, with no way to put an end to it except to invoke cloture, if the 60 votes could be found. If there aren’t 60 votes to be had, as in, say, a Senate split 50-50, then the virtual filibuster was in effect permanent. Moreover, since there was no longer any need for anyone to actually stand there and bluster, initiating a filibuster became a dirt-simple procedural step, requiring nothing more than a member’s assertion of the intent to do it. These days they can literally mail it in electronically. This can make the filibuster such a rote inevitability that sometimes nothing at all needs to be done, the mere threat that it’s going to happen being enough to cause the Senate to move on. Inevitably, the use (or threatened use) of the device, once a relative rarity, has skyrocketed.
It’s still possible for a Senator to perform something that looks like an old school talking filibuster if he chooses, and this may be one cause of the lingering public confusion about the procedure. It’s essentially pointless, but there’s nothing stopping any member from standing there alone in the well of the Senate, in between scheduled votes, and bloviating just as much as she likes to the empty chamber. This might fill an interval of hours or even days, but the vote still occurs on time, and the meaningless speechifying isn’t really doing anything to gum up the works. This only occurs when a particularly pompous idiot wants to create some compelling political theatre, as when Ted Cruz stood there a few years ago reading Green Eggs and Ham in objection to the funding of Obamacare. There was nobody else there, but it was still broadcast on C-Span, and clips made it into the news, apparently because watching the moron intoning, with great solemnity, “I am Sam, Sam I am” was such irresistibly great good fun.
There are a couple of notable exceptions to the general ability to thwart a bill via filibuster. One is the budget “reconciliation” process, brought in by rule changes in 1974, about which we’ll probably be hearing a great deal more over the next two years. Basically – honestly, you could write a whole book about this nonsense, and it’s necessary to oversimplify a bit – “reconciliation” is the procedure by which budget bills emanating simultaneously from the House and the Senate are brought into agreement, producing one consolidated bill. The rules state that a budget reconciliation bill can’t be filibustered. This is an important loophole, but the rules also limit its use to bills related directly and exclusively to spending, revenue, and the federal debt limit, and there can only be three reconciliation bills per year, one for each of those matters, or fewer if one bill addresses a combination (e.g., spending and revenue at once). The restriction against adding extraneous, non-budget items to a reconciliation bill is policed with zealous enthusiasm by the office of the Senate parliamentarian, who will carve away attempts to sneak in anything else, making those excluded items subject to the filibuster as usual. Thus various matters like, say, immigration reform, expansion of voting rights, reforming the courts, addressing climate change, and campaign finance reform, among many dozens of urgent priorities, can’t be rammed through via reconciliation, leaving it as a restricted, but still intermittently potent device in the Democrat’s toolbox, given the composition of the current Senate. Biden’s $1.9 trillion COVID relief package, for example, could be enacted this way, and indeed may well have to be (and if it is, count on Mitch et al. to scream bloody murder, as if it’s something heinous that the GOP would never do).
The other exception, crucial during Trump’s years in office, relates to the judiciary. Right up into the first years of the Obama administration, appointments to the Federal bench, which must be approved by the Senate, were still subject to the filibuster. Mitch McConnell ran with this to thwart Obama’s appointments, creating a substantial backlog of unfilled positions, until then Democratic Senate Majority Leader Harry Reid, frustrated almost out of his mind, invoked what’s referred to as the “nuclear option” procedure, and forced through a rule change eliminating the filibuster on all judicial and other executive appointments save those to the Supreme Court. Sadly, the Dems lost the majority before they could then fill the backlog, and McConnell, now holding the whip hand, bided his time by blocking virtually all of Obama’s appointees until Trump assumed office, after which he was able to use the Democrats’ rule change to stack the Federal Courts for the GOP. Mitch made this the sole project of the Senate for the entirety of Trump’s tenure, save for a massive tax cut for the wealthy, and a botched attempt to repeal Obamacare. Seizing the opportunity, Mitch also launched nukes of his own, with another change that likewise eliminated the filibuster on Supreme Court appointments. This is how Gorsuch, Kavanaugh and Coney Barrett made it through confirmation despite Democratic opposition.
Apart from those exceptions – judicial (and other executive) appointments and whatever can be made the subject of budget reconciliation – the filibuster remains to stifle all Senate business.
This seems insane to those of us accustomed to the Westminster parliamentary model as implemented here in Canada, where majority governments, wielding the rules on closure, can do as they frigging well please and minority be damned, but the elimination of the filibuster for judicial appointments shows why so many Senate legislators feel getting rid of it more generally would be a potentially terrible two-edged sword. The Democrats were horrified when it blew up in their faces, allowing Mitch and the GOP to remake the judiciary, including by stacking the Supreme Court. There was a time when that wouldn’t have been possible. Those were the days! Now that the Democrats are back in the majority, Mitch is the one who’s upset, knowing that the Dems can fill vacancies, should they arise, and there’s nothing he can do about it, at least until he reclaims the majority in 2022 (he saw this coming though, which was why he was in such a monomaniacal froth to fill the bench at every level with youngsters from the Federalist Society roster of reliable GOP stooges, hoping to render the Democrats’ reacquisition of power less consequential). Do away with the filibuster, and it’s great when you’re in the majority, Hell on Earth when you aren’t. Enthusiasm for simple majority rule thus depends upon which prospect seems more likely.
Of course, Hamilton and his buddies would reply that hell yes, it sucks to be in the minority, it’s supposed to suck, because elections are supposed to have consequences, right? In a country as evenly divided as America, with any Senate majority likely to fall below the 60 vote threshold, minority veto is a partisan safety net that all but renders the popular will irrelevant, even when all the other constitutional barriers to simple majority rule are cleared.**
Suppose the Democrats, having re-read the Federalist Papers, and looking balefully across the aisle at a steely-eyed McConnell and his obstructionist band of dogmatic lunatics, found their spines, swallowed hard, and resolved to just up and get rid of the damnable filibuster altogether? Do they have the votes? On the one hand, yes. The “nuclear option” is a rule change procedure that requires only a simple majority, and on paper, with Kamala casting the tie-break, the Dems have 51 votes. On the other hand no, not for now anyway, since one Joe Manchin (D), of the great State of West Virginia, has declared that he’ll vote for no such thing, in which case there goes the majority. Incredibly, that means that this guy Manchin, representing just 1.8 million of America’s 330 million citizens, now holds the power to thwart almost the entire Democratic agenda, just one more stupidity among the myriad stupidities foisted upon the struggling Republic by its absurd, perpetually gridlocked legislative machinery, and one that President Biden, so far, has indicated he’s willing to accept – Joe’s on the record that he opposes repeal of the filibuster. Maybe he’ll change his mind as he sees his two-year window before the mid-terms closing, and Mitch steadfastly opposing him at every turn. And maybe somebody will take Joe Manchin out back, put a pistol to his thick skull, and ask him politely to reconsider.
I focus on Manchin because of his obstinacy on the filibuster, but of course, even if he falls into line, any other Democratic Senator could decide to play the spoiler, not only on the filibuster issue, but any time there’s a matter that can be decided by 51 votes, and therefore even if the filibuster is eliminated. If Mitch can maintain party discipline on his side of the aisle, every Democrat has a veto in the 50-50 Senate. Every damned one of them is going to have to be stroked, coddled, mollified, and fed the pork as necessary, in what still bills itself as “the world’s greatest deliberative body”. Y’all might want to tune out at this point, and leave it to me to keep tabs on the sausage-making.
** See other posts for screeds against the Electoral College and the two-Senators-per-State rule.