Ending the U.S. Senate Filibuster Rule

Illustration by Alan Dye (The New York Times).

By Ralph E. Stone

November 29, 2012

There is increasing sentiment in the U.S. Senate to end or reform the filibuster.  Supposedly all seven of the newly elected senators, including newly elected independent Angus King of Maine, have pledged their support to changing the Senate’s filibuster rule.  As we have seen in the last sessions of Congress, a 41-vote minority of Republican senators has effectively bottled up or killed legislation.

In the last session of Congress in early 2011, efforts to reform the filibuster fell seven votes short of passage. Democratic Senate Majority Leader Harry Reid of Nevada, who opposed and voted against the idea at the start of the last session of Congress, has recanted and thrown his weight behind the effort.

A U.S. Senate filibuster usually refers to any dilatory or obstructive tactics used to prevent a measure from being brought to a vote, according to Wikipedia.  Senate Rule XXII permits a senator, or a series of senators, to speak for as long as they wish and on any topic they choose unless “three-fifths of the Senators duly chosen and sworn” (usually 60 out of 100 senators) brings debate to a close by invoking cloture.  Since 1917, there have been 1,372 cloture motions filed, 989 votes on cloture, and 440 cloture invoked.  In recent years, however, the majority has preferred to avoid filibusters by moving to other business when a filibuster is threatened and attempts to achieve enough votes for cloture have failed.

In the last six years, the Senate has had 380 filibusters.  From the moment Obama won the presidency, right-wing conservatives’ goal was to make Obama a one-term president.  As Senate minority leader Mitch McConnell put it, “The single most important thing we want to achieve is for President Obama to be a one-term president.” The Republicans used the filibuster or the threat of filibuster to further this obstructionist strategy.

The Democrats have not been adverse to using the filibuster.  They used the filibuster to prevent the confirmation of conservative appellate court candidates nominated by President George W. Bush.  In the Republican-controlled 108th Congress, ten Bush judicial nominees had been filibustered by the minority Democrats.  As a result of these ten filibusters, Senate Republicans began to threaten to change the existing Senate rules by using what Senator Trent Lott termed the “nuclear option” or sometimes called the “constitutional option.” This change in rules would eliminate the use of the filibuster to prevent judicial confirmation votes. As a compromise, the so called Gang of 14 signed an agreement, pertaining to the 109th Congress only, whereby the seven Senate Democrats would no longer vote along with their party on filibustering judicial nominees (except in “extraordinary circumstances,” as defined by each individual senator), and in turn the seven Senate Republicans would break with the Republican leadership on voting for the “nuclear option.”

Previously, a filibuster meant non-stop speeches made famous by Jimmy Stewart in the 1939 film “Mr. Smith Goes to Washington”, and infamously by Senator Strom Thurmond’s 1959 marathon oration against the civil rights bill.  Thurmond holds the Senate’s filibuster record of 24 hours and 18 minutes.

Emmet J. Bondurant in his article “The Senate Filibuster: The Politics of Obstruction,” persuasively argues that “The notion that the Framers of the Constitution intended to allow a minority in the U.S. Senate to exercise veto power over legislation and presidential appointments is not only profoundly undemocratic, it is also a myth.”   In this regard, Common Cause filed a lawsuit on May 16, 2012 asking the U.S. District Court in Washington, D.C. to declare that “the Senate’s filibuster rule is unconstitutional and violates the core American principle of majority rule.”

However, changes to the Senate filibuster rule could be achieved by a simple majority. Nevertheless, under current Senate rules, a rule change itself could be filibustered, with two-thirds of those senators present and voting (as opposed to the normal three-fifths of those sworn) needing to vote to end debate.

Despite this the possibility exists that the filibuster could be changed by majority vote, using the nuclear or constitutional option mentioned above.  The Senate Democrats could override the current filibuster rules by a simple majority vote and thus end a filibuster or other delaying tactic.  The new interpretation would become effective both for the immediate circumstance and as a precedent, if it is upheld by a majority vote.

Under the U.S. Constitution, the Senate has the right to choose the rules governing its procedure by majority vote, including ending filibuster altogether or ending a filibuster (cloture) by a majority vote.

The Senate’s authority and step-by-step guide to change the filibuster rule can be found in “The Constitutional Option to Change Senate Rules and Procedures:  A Majoritarian Means to Overcome the Filibuster” by Martin B. Gold and Dimple Gupta.

Clearly, the time has come to change the present Senate filibuster rule by invoking the nuclear option or constitutional option.  The filibuster has become a tool of obstruction, replacing majority rule by the tyranny of the minority.

Ralph E. Stone

I was born in Massachusetts; graduated from Middlebury College and Suffolk Law School; served as an officer in the Vietnam war; retired from the Federal Trade Commission (consumer and antitrust law); travel extensively with my wife Judi; and since retirement involved in domestic violence prevention and consumer issues.

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