Post by: Benjamin Landy , on November 30, 2012
Update, 21 November 2013. The graph below has been revised to reflect data through the end of 2012.
The announcement from the White House yesterday that the President will support Harry Reid's effort to reform the filibuster is only the latest in a series of news releases over the last few weeks that have significantly raised the likelihood that the upper chamber will vote to amend Senate procedure when it reconvenes in January. A majority of Senators are on record as supporting some kind of reform, and Democrats are now lining up behind Reid's planned use of the controversial "constitutional option" to change the Senate's rules with a simple majority of 51 votes rather than the typical 67.
Republican opposition to what they prefer to call the "nuclear option" is on political, not legal grounds. Article I, Section V of the Constitution gives each House the right to "determine the Rules of its Proceedings"—a right made explicit in 1892 by the Supreme Court's decision in United States v. Ballin that a minority cannot prevent Congress from determining the rules governing its own procedure. The constitutional option has been invoked effectively several times since, forcing the 1917 compromise that created the filibuster-ending "cloture" motion and the 1975 compromise that reduced the number of votes required for cloture from a two-thirds majority to three-fifths.
The reforms proposed by Harry Reid are similarly modest. He would "do away with filibusters on the motion to proceed," which the minority party can currently use to end debate before a bill even reaches the floor. (They could still filibuster the passage of the bill itself.) And he would make it so that senators who want to filibuster must physically "stand up and talk about it," forcing anyone who wants to delay a bill to do their best Jimmy Stewart impersonation for the C-SPAN cameras.
Setting limits on when the minority can move to delay a bill and forcing a "talking filibuster" is hardly a "naked power grab," as Senate Minority Leader Mitch McConnell recently alleged. In fact, many commentators argue that Reid's reforms don't go far enough. "The problem with the filibuster isn't that senators don't have to stand and talk, or that they can filibuster the motion to debate as well as the vote itself," Ezra Klein wrote earlier this month. "It's that the Senate has become, with no discussion or debate, an effective 60-vote institution. If you don't change that, you haven't solved the problem."
And it's a problem that needs urgently to be solved. The filibuster, once rare, has become a routine tool for partisan politicking. Between 1917 and 1970, only 58 motions for cloture were filed in the Senate (a decent proxy for filibuster threats), or about one per year. That number grew to more than 19 per year on average between 1971 and 1992 before doubling to 43 per year from 1993 through 2012.
For the past three years, there has been nearly one filibuster per day that the Senate was in session. Keep in mind that these numbers include only those filibusters that the majority tried to block; the actual number of threatened filibusters is higher. Notice too, in the graph below, how Republicans have driven the filibuster arms-race: the number of motions filed tend to ratchet up in years when the minority party is Republican and level off when it is Democratic.
Klein is right that the Senate Democrat's proposed filibuster reform cannot by itself resolve Washington's historic gridlock. But short of eliminating the filibuster entirely (as some constitutional scholars want to do) or radically changing the culture of our political discourse, Reid's proposal—and his precedent-setting use of the "constitutional option"—is a good place to start.