In March 2005, Senator Harry Reid, the leader of the Democratic Party’s then-minority in the Senate, engaged in some legislative brinkmanship. If the Republicans went through with a dastardly plan they had devised, he warned, “the majority should not expect to receive cooperation from the minority in the conduct of Senate business … even on routine matters.” Senator Ted Kennedy hailed Reid’s stand and called on Republicans to “obey the rule of law and abandon their reckless threat to use the ‘nuclear option.’”
What was the outrageous threat that Democrats were so eager to block? Some nefarious Patriot Act provision? A bill authorizing torture, or secret surveillance? No. The Republicans, as you may recall, wanted to change the Senate rules to prevent Democrats from blocking judicial nominees by using the filibuster, a parliamentary procedure in which a minority of senators can endlessly extend debate to prevent an issue from being voted on. Eventually, a group of legislators known as the “Gang of 14”—seven Democrats and seven Republicans—struck a deal on the nominations, thus saving the filibuster and forestalling any changes to the Senate rules, and the dispute ended.
But Democrats were right to look on the nuclear option skeptically, and not because the proposed change was “reckless.” Rather, it didn’t go far enough. Every word the Republicans said about the nominees’ deserving an up-or-down vote was perfectly true—and their argument applies not just to judicial nominees, but to every other case in which the filibuster subverts the will of the majority.
Democrats no doubt see that more clearly today. Since 2006, when they won majorities in both the House and the Senate, their approval ratings have plummeted, in large part because moderates and liberals have noticed their inability to get much of anything done. House Speaker Nancy Pelosi tried to blame “the obstructionism of the Republicans,” but realistically, one can hardly blame Senate Republicans for obstructing legislation they oppose. The fault lies not with the obstructionists, but with the procedural rule that facilitates obstruction. In short, with the filibuster—a dubious tradition that encourages senators to act as spoilers rather than legislators, and that has locked the political system into semipermanent paralysis by ensuring that important decisions are endlessly deferred. It should be done away with.
Back in 2005, Senate Democrats seeking to block the GOP majority portrayed the filibuster as a pillar of America’s democratic tradition. In fact, it’s no such thing. The original rules of the Senate allowed a simple majority of legislators to make a motion to end debate. In 1806, at the recommendation of Aaron Burr, those rules were amended to allow for unlimited argument—not to create a countermajoritarian check on legislation, but because the motion had been so rarely invoked that it “could not be necessary.” This decision paved the way for the modern filibuster. But no one actually attempted to use it until 1837, when a minority block of Whig senators prolonged debate to prevent Andrew Jackson’s allies from expunging a resolution of censure against him. The unlimited-debate rule eventually became so cumbersome that senators made attempts at reform in 1850, 1873, 1883, and 1890, all unsuccessful. Finally, in 1917, the Senate adopted a rule allowing a two-thirds supermajority to cut off debate.
Under this rule, in the years that followed, segregationists mounted a series of filibusters meant to block civil-rights legislation. In 1922, the mere threat of the procedure was enough to torpedo a bill to prevent lynchings. In 1946, a filibuster undermined a bill by Senator Dennis Chavez of New Mexico intended to block workplace discrimination. Strom Thurmond set the record for longest individual filibuster—at more than 24 hours—in an ultimately unsuccessful attempt to block the relatively mild Civil Rights Act of 1957. And the landmark Civil Rights Act of 1964 secured a filibuster-proof majority only after 57 days of debate and substantial watering down.
By 1975, the Senate was finally prepared for reform. But rather than eliminate the filibuster entirely and return to majority rule, the members merely diluted it, reducing the number of votes required to end debate from 67 to 60.
Since then, filibustering has only grown more frequent. In the 1960s, no Congress had more than seven filibusters. In the early 1990s, the 102nd Congress witnessed 47, more than had occurred throughout the entire 19th century. And that was not an especially filibuster-prone Congress—each subsequent one has seen progressively more. The 110th Congress, which just ended, featured 137.
The minority party of the day will inevitably defend such obstruction as a crucial bulwark of liberty. During the judicial-confirmations fight, the liberal Interfaith Alliance warned that a filibuster-free Senate “would leave the majority with the power to reign with absolute tyranny.” But the risk of one-party rule shouldn’t be exaggerated. Majority voting works fine for democracies around the world, and the need for legislation to pass through two separately elected houses of Congress and be signed into law by the president still gives our government more chances to veto objectionable bills than most other countries allow for.
In recent decades, periods of one-party rule have been rare and brief. The only circumstances under which party-line legislation is even a theoretical possibility for any length of time would be when the country feels that the party in power is doing a decent job. And that, one would think, is exactly the sort of situation in which an extended period of one-party rule might be deemed unobjectionable. The filibuster is hardly the only impediment to legislative change, but it’s the one least justified by our Constitution and least supported by our values. And eliminating it would drastically reduce excuses for inaction—the one thing Congress has produced in abundance in recent years.