Paper filibusters, obstruction and the dysfunctional Senate

Whenever I hear the word “filibuster” I immediately think of Jimmy Stewart in “Mr. Smith goes to Washington” speaking to the point of exhaustion to prevent a vote on a bill. Mr. Smith was paying a personal price and the Senate was paying a price by not being able to perform any other activity as long as the filibuster was maintained. In short, there were consequences. Not today.

Today, due to a series of changes to Senate rules and procedures, all that is required for a filibuster is for the minority party to inform the majority leadership that they have 41 senators who will vote against the bill. That’s it. Not a single senator even needs to take the floor to speak. The filibuster has become just another obstructive tactic used by the minority. Sorry, Mr. Smith no modern senator will ever feel your pain. Nor does the Senate feel as much pain as Mr. Smith’s Senate because it is not totally frozen by the paper filibuster. The real pain is felt by Americans who see monumental problems building every day and don’t see a mature, ethical response by our legislative bodies. We have been abandoned by politicians that feel no consequences for their obstructive and self serving actions. It wasn’t always this way.

In the 1970s a dual track procedure was adopted by the Senate that allowed two pieces of legislation to be on the floor simultaneously. This meant that the filibuster could be in place freezing one bill while the Senate considered another bill. Prior to the dual track system no other legislative activity could take place until the filibuster had been resolved.

The filibuster has morphed into a cheap obstructive tactic that is initiated by a simple statement of intent. It’s easy, painless and can be invoked for any piece of legislation at any time which has lead to its frequent and crippling use.

It is crippling because the only way to overcome the filibuster is by cloture vote that requires a 60 vote majority. In essence a piece of legislation that be passed by a simple majority now requires a 3/5 majority. When the minority effectively requires a 60 vote majority for what should be a simple majority is what leads to calls for a “simple up or down” vote. The minority is exercising poor judgement in the abuse of the modern filibuster rules but nonetheless they are unfortunately playing by (or taking advantage) of the rules.

The abuse and grid lock caused by the modern filibuster has been the topic of many articles, editorials and even books. I am just surprised that with all the damage being done to our legislative process it has taken me this long to read some of those references and to realize that the Senate is procedurally broken. The simple fix is to end the gentleman’s filibuster by eliminating the dual track system and requiring Senators to actually speak to keep the filibuster alive. Without those consequences there will be little incentive to limit the painless obstruction caused by filing the filibuster form.

I’ve included a few references at the end of this posting that have abundant information on the evolution, use and misuse of the filibuster. From those references I’ve found the following to be a good summary

1917: Cloture was created by Senate rule 22 that allowed debate to be closed by a 2/3 vote

1970s: Senate adopts a two track system that allowed more than one bill to be open on the floor thereby allowing the filibuster to remain in place while other legislative activity occurred

1975: The votes required to invoke cloture was reduced from 2/3 to 3/5. The requirement for 60 votes remains to this day.

The following chart shows the dramatic rise in filibusters as reflected by cloture votes. Neither party has clean hands in the abuse of the paper filibuster but it is interesting to note the decrease in cloture motions from 1994 to 2008 when the minority party in the Senate were the democrats. The explosion of cloture votes when the republicans became the minority party in 2008 is remarkable and is a clear indication that obstructive tactics have reached unprecedented levels resulting in a Senate that is, at best, dysfunctional.