Given current proposals for reform, it seems clear the filibuster in some form will survive—at least in the upcoming session of Congress. What the Senate looks like in the long term, however, is still very much up for grabs. One thing is for sure: It can’t continue in its current dysfunction.
The first step in thinking about the fate of the filibuster is to place it in historical context. Filibusters were once a rare occurrence, but as University of Miami professor Greg Koger explains in Filibustering, they increased in two major and important spikes. First, Republicans reacted to the election of Bill Clinton and a unified Democratic government in 1993 by filibustering all major initiatives. Then, Republicans reacted to the election of Barack Obama and another period of unified Democratic government in 2009 by establishing a true 60-vote requirement; passing virtually any bill (and even amendments to those bills) and every nomination now requires a supermajority.
This new state of affairs is not tenable. Over time, majorities will simply not allow minorities to beat them again and again. That’s why filibuster reform has emerged as a major issue each of the times since 1993 that a sustained majority controlled the Senate and the White House.
The filibuster, which allows a single Senator to halt the legislative process, is emblematic of a key difference between the two bodies. In the House, members only have influence within large organized structures; party leaders set the agenda, and House committees are more important in getting legislation passed than committees in the Senate. Because of this, the majority party is able to more quickly and easily pursue its agenda. But this also results in individual legislators having power on a narrower set of issues than their counterparts in the other chamber.
Senate rules and norms, however, have evolved to vest broad power in individual legislators. Senators have had the ability to offer amendments on any topic whenever they want, to threaten to delay something and thus make passage more costly, or even, when the group is large enough, to delay it indefinitely and thereby kill it. All of these allow Senators—whether part of a large minority, a small group, or even alone—leverage to bargain for a wide range of priorities. Unlike their colleagues in the House, senators have never been willing to trade away their own ability to get things done on a wide range of issues for more influence over a smaller area. For majority-party Senators, the task of reforming the filibuster entails finding a set of rules that allows the Senate to get things done without turning the body into a second House of Representatives, in which party leaders really do run everything.
What would such reform look like?
The reforms that Senators Tom Udall, Jeff Merkley, and other Democrats are pushing—and that Majority Leader Harry Reid says he’ll support—are a step in the right direction, but I’m pessimistic that they’ll get the job done.
Reformers are currently pushing to limit the number of junctures at which Senators can filibuster a bill, therefore hampering the ability of a filibuster to slow down the Senate. Currently, obstruction can last for weeks even if the majority has 60 votes; while the opposing party cannot definitively stop a bill that has supermajority support, it can slow things down by requiring a vote to end a filibuster at each step in the legislative process. By eliminating the opportunity to filibuster a “motion to proceed” to a bill and the motions needed to get a bill that’s been passed into conference with the House, the reformers would make passing a bill easier for the majority by reducing the amount of floor time used.
However, those changes do nothing for bills that have a simple majority but not the 60 votes it takes to bring a bill to a final vote. It also does nothing for nominations because nominations currently do not require a debatable motion to proceed and, of course, do not need to go to conference with the House. For those, Merkley and Udall offer a “talking filibuster” cure, which would force opponents to actually hold the Senate floor and talk if they want to block anything. The idea is that only intense minorities should be able to obstruct action. Unfortunately, it’s unlikely that their formula (which they’re still refining) will work. Minority party Senators will probably be more than happy to hold the Senate floor and rail against majority tyranny. And remember: Every minute that the Senate is tied up in an active, talking filibuster is a minute that it can’t get anything else done. Indeed, that’s why live filibusters were phased out in the first place; unless they can be easily broken, live filibusters are bad for the majority, not the minority. Indeed, under current rules, the majority can already force talking filibusters. It’s just not in their interest to do so. The reformers want to change that by shifting more of the burden to the filibustering group (the rules here are complex, but basically, the current framework forces the majority to be available during a talking filibuster; the reformers seek to change that so that the minority would be the ones on call). But as long as the minority is determined, they’ll be able to keep going, and that just delays everything the majority wants to do.
So, yes, there’s a good chance that we’ll get some significant reform this January, either majority-imposed or after cutting a deal with Republicans. But if the result is simply a more smoothly running 60-vote Senate, then it’s almost certain that majority-party frustration will increase, and the chamber will remain fundamentally dysfunctional. Eventually—unless reformers can figure out a balanced set of rules—the odds are that strict party rule will come to Senate, just as it has to the House. And with it will come less influence for individual Senators.
Of course, a lot of people want to see that. Most Senate scholars, however, believe that it would destroy the real strengths of the Senate. Powerful individual Senators can be a problem, but they can also mean issue innovation, real deliberation, and good representation of many different interests. If the actions of both chambers of Congress are simply functions of their party leadership, then the bicameral legislature doesn’t really have much of a point.
So there’s really a lot at stake in the efforts to get reform right. The current crop of Senate reformers appears thoughtful and well-intentioned. On balance, the changes they are advocating should make things better. But for whatever reason—and a large part of this may be that Democrats aren’t quite as frustrated as they could be, given that with the Republican House it’s unlikely that legislative filibuster reform will make much of a difference in the short term anyway—their proposals won’t be enough.
Several promising reforms which might come closer to getting the job done have not, so far, been added to the mix. Some have suggested eliminating any supermajority requirement for appropriations bills; I’ve said much the same for executive-branch nominations. For judicial nominations, where the case for a supermajority is stronger because they are lifetime appointments, some way is needed of further reducing the time taken on noncontroversial confirmations (where the point of delay is apparently just to reduce the overall capacity of the Senate). On legislation, I’ve proposed an annual Leadership Bill to replace of the current reconciliation bill. The idea is to give intense majorities the same kind of protection that intense minorities currently have.
There are lots of good ideas out there, and plenty of time for improvement. And the more the rest of the Democrats are with them, the better the chances Senate reform will be done right in January. But the important thing isn’t just to get something done; for friends of the Senate, the key is to get reform right.