The answer to David’s question about filibusters

Posted by AzBlueMeanie:

Short answer: it takes a two-thirds vote – 67 votes – to change the archaic rules of the U.S. Senate. Do the math. It ain't gonna happen.

Norman Ornstein, a resident scholar at the American Enterprise Institute, wrote this excellent analysis of the U.S. Senate back in March of this year Our Broken Senate — The American, A Magazine of Ideas:

Ah, the U.S. Senate—the world’s greatest deliberative body. The chamber designed to be, as George Washington famously described it to Thomas Jefferson, “the saucer into which we pour legislation to cool” the hot tea from the cup of the House of Representatives. It is a body set up to make it difficult to enact laws, with a tradition of unlimited debate and a deference to the intense feelings of the minority over the more casual will of the majority.

As George Washington knew from the get-go, the slow pace and individualist nature of the Senate would drive the more action-oriented House of Representatives batty. And it has, regularly and consistently. One of the most battle-tested anecdotes, which I first heard in the 1970s from former Representative Al Swift (D-WA), is about the freshman House member who refers to a member of the other party as “the enemy.” A more senior colleague says, “No, he is just a part of the opposition. The Senate is the enemy.”

Ornstein then quotes from a column he wrote back in 1995:

“The fact is that the Senate remains an institution of 100 individualists, all prima donnas, all with their own independent power bases. Filibusters, holds, and threats of filibusters are a way of life in the Senate…. [It] simply doesn’t provide any hope of regular 51-vote majorities for a tough, pure, and hard-line conservative policy approach….

“In many ways, the frustrations of modern governance in Washington—the arrogance, independence, parochialism—could be called ‘The Curse of the Senate.’

* * *

The Senate has taken the term “deliberative” to a new level, slowing not just contentious legislation but also bills that have overwhelming support.

The first line of obstruction is not the filibuster but the "hold":

So what is different now? For one thing, everybody is an obstructionist in today’s Senate, thanks to the dramatically expanded and different role of the hold. What is a hold? It is an informal procedure—nowhere mentioned in Senate rules—where an individual senator notifies the body’s leaders that he or she will hold up a bill or nomination by denying unanimous consent to allow it to move forward. The hold was originally employed simply as a courtesy—a way to delay action for a week or two if a lawmaker had a scheduling conflict or needed time to muster arguments for debate. But over the past 30 years, it has morphed into a process where any individual can block something or someone indefinitely or permanently—and often anonymously. Now, at any given time, there are dozens of holds on nominees for executive positions and judgeships, and on bills. Of course, bills can be brought up even if there is not unanimous consent, but to do so is cumbersome and often requires 60, rather than 50, votes to proceed.

* * *

The contemporary practice of hold-as-hostage and hold-as-bill-or-nominee-killer has been building for several decades and reflects larger changes in the Senate and society. The always individual-oriented Senate has become even more indulgent of the demands of each of its 100 egotists. Even though some members may rail against the injustice of an individual single-handedly stopping a bill in its tracks, they do not want to end a practice that they themselves want to keep in the arsenal.

The big story of the 110th Senate, though, [was] not the explosion of individual use of an unwritten practice, but the sharply expanded use of the formal rules as a partisan political tactic to delay and block action by the majority – the filibuster.

[The filibuster] has a long history, going back to the early days of the Republic. Unlimited debate became a core feature of the Senate in the first decade of the 19th century, when the Senate abandoned a rule to move the previous question—which allows a majority to stop debate and move to a vote on any issue. From that point on, any senator could take to the floor and hold it as long as he could stay there. That tradition lasted until 1917, when a filibuster over efforts to rearm America in preparation for the World War led to a backlash and a new rule allowing cloture—stopping the debate—if two-thirds of senators voting agreed. (That rule stayed in effect until the 1970s, when the number was reduced to 60 senators.)

From its earliest incarnation, the filibuster was generally reserved for issues of great national importance, employed by one or more senators who were passionate enough about something that they would bring the entire body to a halt. The civil rights issue fit this pattern exactly: Southern senators led lengthy filibusters on voting rights and civil rights bills during the 1950s and 1960s, effectively killing them all until President Lyndon Johnson was able to overcome the procedural hurdle in 1965. In each case, the drama was palpable as the Senate moved to round-the-clock sessions—aides wheeling cots into the antechambers—to try to break the filibuster.

This is where David's suggestion that Traitor Joe Lieberman be forced to talk the health care reform bill to death in the traditional filibuster depicted in Mr. Smith Goes to Washington falls apart:

But after the 1965 Voting Rights Act, the filibuster began to change as Senate leaders tried to make their colleagues’ lives easier and move the agenda along; no longer would there be days or weeks of round-the-clock sessions, but instead simple votes periodically on cloture motions to get to the number to break the log-jam, while other business carried on as usual.

As so often happens, the unintended consequences of a well-intentioned move took over; instead of expediting business, the change in practice meant an increase in filibusters because it became so much easier to raise the bar to 60 or more, with no 12- or 24-hour marathon speeches required.

Still, formal filibuster actions—meaning actual cloture motions to shut off debate—remained relatively rare. Often, Senate leaders would either find ways to accommodate objections or quietly shelve bills or nominations that would have trouble getting to 60. In the 1970s, the average number of cloture motions filed in a given month was less than two; it moved to around three a month in the 1990s. This Congress, we are on track for two or more a week. The number of cloture motions filed in 1993, the first year of the Clinton presidency, was 20. It was 21 in 1995, the first year of the newly Republican Senate. As of the end of the first session of the 110th Congress, there were 60 cloture motions, nearing an all-time record (see below).

Can anything be done to create a little more efficiency in the Senate without altering its basic character? The first big step would be to go back to the future—to return at least on occasion to real filibusters, bringing the place to a halt and going round the clock to break the deadlock. This would deter the casual use of delaying tactics and dramatize the problem. It should be accompanied by a much more rigorous Senate schedule, ideally five full days a week in session for three consecutive weeks, with one week off to attend to constituent needs. 

There are also a few rule changes that would help. Eliminating the opportunity to filibuster on the motion to proceed to debate would remove one of the three separate bites at the apple on every bill, while keeping the essence of the filibuster and cloture intact. Moving from requiring unanimous consent to do almost anything in the Senate to a slightly higher threshold (say, requiring five objections to stop something instead of just one) would dilute the power of one crank to bring the whole institution to a halt. Making all holds public, something pushed for several years by Senators Charles Grassley (R-IA) and Ron Wyden (D-OR), would make a small difference. But the problems here are less the rules and more the culture. And that is not going to change anytime soon.

Politico directly addressed David's question in Senate filibusters aren't what they used to be:

If you’ve been hoping to see Sen. Joe Lieberman star in a sequel to “Mr. Smith Goes to Washington” this holiday season, you can put away the microwave popcorn.

Fury over the Connecticut senator’s announcement that he might join Republicans to filibuster a vote on the Senate health care bill has Democrats clamoring for Majority Leader Harry Reid to grab his teddy bear and let ’em talk all night.

But the public isn’t likely to see Lieberman offer a dramatic reading of the New Haven telephone book any time soon — nor catch Democrats cat-napping on the Senate floor to keep the session going round the clock.

Filibusters are far more common than most realize, but they don’t look much like Jimmy Stewart vehicles anymore, said Gregory Wawro, professor of political science at Columbia University and author of “Filibuster: Obstruction and Lawmaking in the United States Senate.”

“There are many more of them than there were prior to the 1970s,” he said. “They’re used for about everything of any significance these days.”

* * *

The last true old-school filibuster in the Senate is considered to have been conducted in 1986 by then-Sen. Alfonse D’Amato, a Republican from New York who was known as “Sen. Pothole” for his vaunted constituent-services operation. D’Amato spoke for 15 hours and 14 minutes in a failed effort to amend a tax bill to aid a struggling typewriter factory in Cortland, N.Y.

Since then, there have been plenty of silent filibusters, punctuated with periodic threats to haul out the cots, and even an all-night debate in 2007 staged to try to end a Republican filibuster over a bill on withdrawal from Iraq. Senators have also held the floor at length in protest or used filibuster-style techniques to slow down the proceedings.

Eventually, in the 110th Congress (2007 and 2008) motions were filed to end filibusters a record 139 times, and they continue at a similar pace through 2009 (senate.gov). As Rachel Maddow recently observed, “Now there is a routine filibuster, a standard permanent filibuster of all legislation. Everything takes a filibuster-overriding 60 votes to pass now, every major piece of legislation, no matter what.”

And that is why our Senate is broken. It is no longer capable of governance, held hostage by 100 prima donnas and crippled by its own archaic Senate rules.