One of the many reasons for the logjam in Congress in the past years has been that while a simple majority is all that is necessary to pass a bill in the House of Representatives, in the Senate it takes 60 votes to do so. Why? Because the Senate allows for a parliamentary procedure called a “filibuster” in which the Senators who oppose a bill may keep debating it, and debating it, and debating it, unless cut off by a “cloture” vote, which takes the support of 60 senators. Thus, even though the Democrats have a majority of 53 senators (plus two independents who usually vote with them), they cannot pass a bill without the support of some of the 45 Republican senators supporting a cloture vote.
Under Robert’s Rules of Order (used by most deliberative bodies) debate is closed by the passage of a “Motion To Call the Question,” which is not debatable (see RRO section 37). In the U.S. House of Representatives such a motion passes on a mere majority vote. This originally was the rule in the Senate but in 1806 Aaron Burr called for a reform of procedural rules and recommended that this particular motion be eliminated as unnecessary. It is widely agreed that he didn’t understand what this would mean, but when the rules were revised that same year they did eliminate any procedure for ending debate. All that is left is a motion to end debate, which would require a majority vote, but, alas, such a motion itself could be subjected to a filibuster.
Although the filibuster has been possible in the Senate since 1806, it was rarely employed until recently. Senator Jeff Merkley (D. Ore.) uses this statistic to show how the use of the filibuster has exploded in the past few years: Lyndon Johnson in his six years as Majority Leader of the Senate faced one filibuster, while Harry Reid, the current Majority Leader, in his six years has had to deal with 391.
This is outrageous. The Constitution cites only five requirements for Senate supermajorities, including impeachment convictions of presidents, but none of those apply to cutting off debate. Indeed the drafters of the Constitution considered making supermajorities a requirement for many forms of legislation but in the end went with the basic premise that majority rules. The stupidity of the filibuster’s possible use means that the Senate is most often at a standstill.
Late this year the Democrats finally took action and managed to pass a rule change that forbade the use of the filibuster in matters having to do with Presidential appointments (other than those to the United States Supreme Court). This rule change was deemed the “nuclear option” because it bombed away some of the protection the filibuster has traditionally given to the minority party, and the Republicans were duly outraged at being deprived of this valuable delaying tactic.
Why not go all the way and simply abolish the filibuster by reinstating the motion to cut off debate (with a majority vote all that’s needed to prevail)? Well, the answer is that the Democrats are now in control of the Senate, but that won’t last forever. When they are next in the minority they’ll be every bit as fond of the filibuster as the current crop of Republicans.
But this is pusillanimous—the good of the country requires that Congress function as smoothly as possible, and obstructions as large as the filibuster are relics of the past that we should no longer tolerate. With Congress’s approval rating at an all time low any step to make the legislative process speedier and more efficient should be taken.
Dump the filibuster completely. Give us back majority rule in both houses of Congress.
“Benjamin Franklin Riding Shotgun,” May 29, 2010
“How To Make Ethical Decisions,” December 12, 2010
“Ohio To Put Guns in Baby Strollers,” June 17, 2012
“Obamacare, John Roberts, and the Supreme Court,” July 3, 2012
“I Hate Meetings,” October 31, 2011
“A Guide to the Best of My Blog,” April 29, 2013