Q: What is a filibuster?
A: Many Americans may be surprised to learn the Senate rules do not define what constitutes a filibuster. The Merriam-Webster Dictionary defines a filibuster as “the use of extreme dilatory tactics in an attempt to delay or prevent action especially in a legislative assembly.” The fact is, a filibuster can refer to any procedure perceived to slow action.
When most Americans think of the filibuster, they think of a senator talking on the Senate floor at length to delay proceedings and make a point. Our cultural understanding of a filibuster has been shaped by the classic film Mr. Smith Goes to Washington where Jimmy Stewart’s character single-handedly faces down corrupt senators by refusing to yield the floor until they back down.
That is certainly one type of filibuster. There have been many cases in Senate history up to present day where individual senators have used the Senate right to unlimited debate to make extended speeches to make a point. The right to unlimited debate goes back to the early days of the Senate, which was always intended to be a more deliberative body than the House.
In 1806, the Senate revised its rules, eliminating entirely the motion to call the previous question, the same motion the House still uses for a simple majority to force a final vote. In 1841, Henry Clay unsuccessfully proposed reinstating a simple-majority vote to shut off debate, and other senators have followed suit at various times, including Stephen Douglas, most famous for debating Abraham Lincoln on the issue of slavery when Lincoln challenged him in the 1858 Senate election in Illinois.
Then, in 1917, the Senate adopted the cloture rule allowing for two-thirds of senators voting to bring debate on pending matters to a close even if a small minority wishes to continue consideration. This was lowered to three-fifths of all senators currently serving, usually 60 votes, in 1975. This update excluded cloture on amendments to the Senate rules, including changes to the cloture rule, which stayed at two-thirds. The last formal change to the cloture rule was in 1986 when post-cloture debate time was lowered from 100 hours to 30. However, under then-Majority Leader Harry Reid, the Senate in 2013 adopted a precedent by a simple majority vote that the Senate would ignore the cloture rule on the books, and use a simple majority for cloture on nominations. I and other Republicans at the time warned they would regret this change, promising we would use it when the tables were turned, including for the Supreme Court. We were true to our word, and many Democrat Senators have since admitted they do regret their vote.
Q: What is this talk about returning to the “talking filibuster?”
A: The confusion between the Mr. Smith Goes to Washington image of a filibuster and the cloture rule has led many commentators, members of the media, and even President Biden to suggest there was a time when senators had to speak non-stop to prevent the Senate moving to a final vote with a simple majority. That has never been the case. Since 1806, it has always required a super-majority to end debate on legislation if some senators believe further consideration is needed, meaning not just debate but for offering amendments as well. Don’t forget, cloture motions limit not just debate but the right to offer amendments and receive an up or down vote. This is an essential tool for senators to represent their states regardless of party. President Biden cited statistics in his recent press conference about the increased number of cloture motions last year compared to when he first came to the Senate as proof the filibuster has been abused. Ironically, those cloture motions were when his party was in the minority and making liberal use of this tool. Republicans have yet to filibuster any legislation since Democrats took the majority. However, cloture motions do not necessarily mean there was a filibuster – a misconception pushed the last time Democrats took control and complained about the filibuster. They should have known better then and now because the nonpartisan Congressional Research Service has totally debunked that notion.
The Senate was designed to be the cooling saucer to the House’s hot tea. The principle of extended debate in the Senate frustrates hot-headed partisans on both sides, while forcing bipartisan compromise. I stood up to Republicans who wanted to destroy the Senate’s tradition as a more deliberative body for short term gain. So, it’s not too much to ask that responsible Senate Democrats do the same today.