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Understanding the filibuster

weary Senator

By now I’m sure you’ve heard that Senate has dropped the public option from its bill, thanks almost entirely to Joe Lieberman’s threat to filibuster any bill that includes a public option (and apparently now, any bill that lets people over 55 buy into Medicare).  We’ll talk more about the politics of what happened in another post, but for now we wanted to take a look at why Lieberman was in a position to single-handedly kill the public option, which means… understanding the role of the filibuster in Senate parliamentary process!

I can tell you’re excited.

What is a filibuster?

To pass a bill or an amendment in the Senate, technically you only need a simple majority of 51 votes- and the Vice President can vote to break ties.  But… and this is an important but… you have to get to the vote first.

From 1806 to 1917, the Senate allowed unlimited debate, meaning that before a vote any Senator could speak for as long as they’d like.  At first it wasn’t really an issue– Senators might be long-winded, but eventually they’d stop talking and the vote could proceed.  But in the 1830s Senators that were going to lose a vote realized that they could get together and take turns talking indefinitely, until eventually the majority got bored and backed down.  The procedure was called a filibuster, based on the Spanish word for pirate, “filibustero“- since the Senators were pirating or hijacking the debate.

Since then the filibuster has changed a little:

  • In 1917, Woodrow Wilson pressured the Senate to adopt a rule that would allow them to end debate with a 2/3’s majority vote- a procedure called cloture. Senators could still talk for as long they wanted, unless 2/3’s of the Senate decided they had enough.
  • In the 1950’s and 60’s, southern Senators used the filibuster to successfully block civil rights legislation, until until cloture was finally invoked to end a 57-day filibuster against the Civil Rights Act of 1964.
  • In 1975, the number of votes required to end debate was dropped from two-thirds to three-fifths, which is where they get the 60-vote threshold you’ve heard so much about lately.

But the biggest change to the filibuster came in the 1970s, when Senator Robert Byrd introduced a dual tracking system.  Before that, the filibuster was a battle of wills- filibustering Senators had to actually get on the floor of the Senate.  Think Jimmy Stewart at the end of Mr. Smith Goes to Washington:

All other Senate business would grind to a halt during a filibuster until one side gave in, and a filibuster could go on for days or weeks.  With the dual tracking system, a majority leader could simply put aside the filibustered bill and move onto something else.  Filibusters became pain-free– no more cots set up in the Senate chamber.  Now Senators only have to say they’re going to filibuster, and if the majority leader doesn’t have 60 votes to end debate, they’ll just put the bill aside.  Later they might try to work out a deal with the filibustering Senator, or the bill will just stay on hold– effectively killing it.

Once Senators adapted to the new rule, the filibuster was used more and more often:

  • In the 1950s there was on average one filibuster per year; compared to 52 filibusters in 2007-2008.
  • In the 1960’s, 8% of major bills were targeted by the filibuster; in the last Congress it was 70%

Political Changes
However, the use of the filibuster really exploded in the 1990’s, the last time the Democrats made a major push for health care reform under Bill Clinton.  According to Mark Schmitt, a former adviser for Senator Bill Bradley:

That’s when Bob Dole, then the majority leader, made the phrase “You need 60 votes to do anything around here” his mantra, and when — thanks to Bill Kristol‘s famous memo — the idea of blocking major legislation for political reasons, rather than trying to get it revised to reflect your own policy preferences, took hold. Maybe I put too much weight on that period because that happens to be when I worked in the Senate, but there’s no doubt that at that time, a whole bunch of blocking techniques came out of the dusty toolbox… (I once witnessed Ted Kennedy asking staffers for advice about how to break one of these tactics, which he had never seen in 34 years in the Senate.)

You can see Senate Republicans using the same playbook this time around.  Sen. Judd Gregg recently sent out a memo to fellow Republicans, listing a number of obscure procedural rules that Republican Senators can use to hold up progress on a health reform bill.  For example, it reminds senators that they can propose amendments to the bill that have nothing to do with health care reform.

The parties themselves have also changed in recent years.  Each party no longer has both a liberal and a conservative wing- and Republicans in particular moved increasingly to the right.  Schmitt again:

As frustrating as today’s conservative Democrats like Mary Landrieu are, none of them are more conservative than any Republican, and no Republican is more liberal than even the most conservative Democrat.

What does this mean for health care reform?
In the old Senate, there might have been any number of different configurations of Senators that might support a health care bill.  These days there are exactly two- either every single Democrat and Joe Lieberman votes for reform, or one of them backs out, but they pick up Olympia Snowe.  That’s it– there are really no other options, which means that really any Democratic Senator can kill health care reform if they don’t like the final bill.

Other Democratic Senators have been reluctant to say they’d support a filibuster- even if they don’t like the public option, if health care reform doesn’t pass, it will hurt all the democrats in Congress.  Since Lieberman is basically a party of one (he’s technically a part of the Democratic caucus, but remember he campaigned for McCain) he’s doesn’t have to worry as much about the fate of the other Democrats.

What to do?
It’s not just health care- the casual use of the filibuster on every controversial bill keeps the Senate from moving forward on any major issue.  There are some ways around the filibuster, but none of them are good:

  • Get rid of the filibuster altogether- This is practically almost impossible.  It would take 67 votes to change Senate Rules, and the Republicans are not going to want to give up this power.
  • Make them actually filibuster- Harry Reid as majority leader can make health care reform opponents stay on the floor of the Senate to filibuster (although, it’s a myth that they have to talk the whole time.  They just have to be physically present.)  The downside of this is that the Senate can’t work on anything else, and it will give reform opponents a lot of attention.
  • Reconciliation– It’s possible to pass bills that relate to the budget with only 50 votes through a process called reconciliation.  Unfortunately, anything in the health reform bill not related to the budget would have to be removed– in other words, probably most of the bill.

So it looks like for now the filibuster is here to stay, which means that democrats are stuck negotiating with Lieberman or the moderate Republican Senators from Maine.  And for now that looks like it means no public option.  In some upcoming posts we’ll look at what a public option-less bill means for health care reform.

{ 2 comments… add one }
  • Mark Walker December 22, 2009, 2:08 am

    So who says evolution leads to improvements…

    Fixing the “bad” part of filibusters created a monster. Big surprise.

  • Art Williams January 20, 2010, 11:22 pm

    Thanks for the lesson.

    It is amazing that any legislation gets passed in Congress with the Senate minority being able to hold everyone else hostage. Doesn’t sound like democracy to me. America in gridlock.

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