Yesterday a majority consisting only of Democrats changed the rules of the Senate to eliminate the filibuster for presidential appointments to the executive branch and the judiciary. A simple majority will now be enough to bring such appointments to a vote, instead of the “supermajority” of 60 needed to end a filibuster.
Democrats hailed this as a victory for majority rule, while Republicans condemned it as a power grab trampling on minority rights. Mainstream media like the Washington Post and NPR made it sound bad for everybody by describing it as an “escalation of partisan warfare.” The CBS Evening News called it a “new low,” as the Democrats “swept away 200 years of tradition.”
Well, not exactly. The filibuster as it has existed for the last few decades–and especially for the first five years of the Obama Administration–is hardly a longstanding historical tradition. The Senate has revised its rules repeatedly as it has struggled to balance the right of a minority to be heard with the right of a majority to get something done. Now it has acted again because previous rule changes combined with extreme political polarization to let filibustering get out of control.
Webster’s dictionary defines the filibuster as “the use of extreme dilatory tactics in an attempt to delay or prevent action esp. in a legislative assembly.” The most common tactic associated with the term is the refusal to stop debating so that a proposal can come to a vote. Until 1917 the Senate had no formal way of ending debate; votes were taken after all those who wished to speak had had their say. That made filibusters possible, but they rarely occurred in practice. In 1917, the Senate adopted a cloture rule ending debate by a two-thirds majority, which remained the rule until 1975. (Two-thirds meant two-thirds of those voting, except during the period 1949-1959, when it was changed to two-thirds of the entire Senate.)
Two more important changes occurred in the 1970s. After filibusters of civil rights legislation got in the way of other Senate business, the Senate created a two-track system allowing other bills to be considered even while a filibustered bill was still pending. In 1975 the Senate made it easier to end debate by reducing the cloture requirement from two-thirds to three-fifths. However, it also removed the requirement that Senators actually have to keep speaking on the floor in order to filibuster. The result of these changes was that filibusters increased dramatically. When filibustering meant speaking continuously and impeding all other business, it was a tactic too extreme to be used lightly or very often. But once Senators could require a vote of 60 simply by announcing their intention to filibuster, the power of a minority of at least 41 to block legislation was greatly enhanced. The filibuster was transformed from a tactic for continuing debate into a tactic for blocking consideration of a measure altogether.
Political polarization made it hard for either party to get enough support from the other to get 60 votes. As Ezra Klein puts it, “Before the two parties became reasonably unified and disciplined ideological combatants, filibusters were rarely used as a tactic of inter-party warfare because each political party had both members who supported and opposed the bills in question. As that era waned, the filibuster became constant because parties could agree on what to oppose.”
Both parties now have a stronger temptation to filibuster when they are in the minority. The last time the Republicans controlled the Senate, the Democrats filibustered some of President Bush’s judicial appointments, and it was the Republicans who got them to stop by threatening to change the rules. During the Obama administration, the Republicans have far surpassed the Democrats in both the frequency and obstructionist nature of their filibusters. In the case of presidential appointments, they have gone beyond challenging candidates on their merits to trying to prevent vacant positions from being filled at all. Sometimes this is to prevent an agency they don’t like from functioning, such as the Consumer Financial Protection Agency or National Labor Relations Board. Sometimes it is to maintain the current balance of Republican and Democratic judges in the courts. The last straw for Democrats was when the Republican leadership declared its opposition to filling any of the three vacancies on the D.C. Circuit Court of Appeals, the court with jurisdiction over many cases involving federal agencies. That court can affect the fate of many federal regulations, such as environmental regulations and implementation of the Dodd-Frank financial reforms. Although the Constitution gives the President the responsibility to fill such vacancies and the Senate the responsibility to consider them, the Republicans decided unilaterally that no Obama nominees should be voted upon, regardless of their qualifications.
Some commentators are now suggesting that the filibuster rules are too broken to be fixed, and that the 60-vote requirement will soon disappear entirely. Senate Minority Leader Mitch McConnell already threatened that if the Democrats eliminated it for presidential appointments, the Republicans would eliminate it for other legislation the next time they are in the majority. Once it is gone, what majority would weaken its own position by bringing it back? An alternative would be to keep the 60-vote requirement for ending legislative debate, but go back to making Senators continue speaking on the floor until a cloture vote succeeds or the filibusterers give in to the will of the majority.
The filibuster rules were once a way of insuring that all Senators had their say, and that a minority could have ample opportunity to persuade the majority. What they became more recently was a way for a minority to block consideration of measures they disliked, without even having to present arguments on their merits. Minority rights are one thing, but denying the majority a right to take a vote is something else. In that context, yesterday’s rule change is a return to democratic process, not a radical departure from it.