The history of filibuster reform

By Ezra Klein

The actual process is getting increasingly complicated -- the Senate's first "legislative day" might take a couple of weeks, for instance -- but Senate Democrats look to be pushing forward with their effort to reform the filibuster. Cue shock and horror. It's "a radical changing of the Senate's rules," writes Brian Darling, "a naked power grab." Democrats used much the same language in 2005, when Sen. Bill Frist sought to eliminate the filibuster on judicial nominations.

These majority-driven changes are power grabs, at least insofar as they're attempting to give the majority more power to pass their agenda. But they're rarely radical. The Senate has a long tradition of revising its rules. Senators were originally elected by state legislatures, but we tired of that in 1913 and ratified the 17th amendment, turning that power over to the voters. And the Senate kept changing in the years after that.

Generally, governmental dysfunction is frowned on, and efforts to eliminate it are embraced. But in the Senate, such things take on the sepia-toned glow of Tradition. Imagine if no agency decisions could be made without 60 percent of all employees in agreement, and even then, the decision would first have to be debated for two days and then debated for a further 30 hours after the vote. The rule would be used as grist for sweeping and constant critiques of federal inefficiency. But that same rule, applied to the Senate, has many defenders.

It also, however, has many critics, including in the Senate itself. Indeed, the Senate has repeatedly sought to streamline and weaken the filibuster, starting early in the 20th century:

1917: A 23-day filibuster against a proposal to arm merchant ships pushes President Woodrow Wilson over the edge. He calls a special session of the Senate and persuades the members to adopt a cloture rule that allows filibusters to be ended with the agreement of two-thirds of the Senate. Previously, there was no way to close debate. Now there is.

1949: The Senate decides that the cloture rule also applies to procedural motions, such as a motion to proceed. The point, again, was to ensure that there's a way to end debate.

1959: The two-thirds threshold for invoking cloture is lowered from two-thirds of senators "duly chosen and sworn" to two-thirds of senators "present and voting."

1974: The Congressional Budget Act fathered the budget reconciliation process, a vehicle through which a bill dealing exclusively with budgetary matters can be protected from a filibuster. Welfare reform, the George W. Bush tax cuts and the health-care law all were passed through this process.

1975: The post-Watergate Senate, disgusted by the way the filibuster was used to preserve segregation in the ’40s and ’50s and ’60s, again changes the threshold for cloture, taking it from two-thirds of senators present and voting to three-fifths of senators duly chosen and sworn.

Notably, all these reforms have pushed in the same direction: Toward a weaker or, in the case of the budget reconciliation process, nonexistent, filibuster.

Compared to past reforms, what Democrats are likely to propose is quite mild: They will not lower the number of votes required for cloture or protect certain bills from the filibuster. Instead, they want to streamline the process of voting for cloture (it currently takes about three days, and often needs to be repeated multiple times for a single bill) and perhaps make it easier to hold continuous debates, which is what people tend to think filibustering requires, rather than letting minority senators avoid debate by staging repeated quorum calls.

As it happens, I don't think these reforms will fix much. The two real costs of the filibuster are the effective supermajority requirement it imposes and the time it wastes. These reforms would have no impact on either problem. But in the Senate, majority-driven changes to the rulebook are usually greeted with horror and outrage by the minority, almost regardless of what they actually entail. We can expect that tradition, at least, to be enthusiastically honored.

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