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April 4, 2017

Returning the Filibuster to the Good Ole Days of Mr. Smith


Had Mr. Smith (Jimmy Stewart) gone to Washington after 1975, the film about his Senate filibuster would have been a lot less interesting—or physically demanding. 

While the U.S. Constitution does require a supermajority vote in several instances, the Senate filibuster is not one of them, nor was it part of the original rules of the Senate. 

As Sarah Binder, a senior fellow in governance studies at the Brookings Institution and a professor at George Washington University has pointed out, both the House and Senate initially had rulebooks that included a “previous question” motion, which allowed a vote to be called on a main question, thereby ending debate—a process followed in both houses until 1806. 

As president of the Senate, Vice President Aaron Burr encouraged the Senate in 1805 to drop that provision, which it did in 1806. But it was 1837 before the Senate minority initiated the first real filibuster, refusing to end debate. Even so, Binder says there were very few filibusters until the 1880s. 

By 1917, the unending filibuster came to a head under President Woodrow Wilson, when Senate Republicans filibustered Wilson’s effort to arm merchant ships at the beginning of the U.S. role in World War I. 

Wilson wanted a process to end debate on an issue. Senators eventually adopted Rule 22, which said that “cloture”—i.e., the ending of debate—could be invoked by a vote of two-thirds of the senators present. 

But at least senators had to physically debate an issue, until 1975 when the Senate amended Rule 22, reducing the number for cloture from two-thirds to three-fifths (i.e., 60) of all sworn senators (not just those present at the vote). 

But that amendment also created the “virtual filibuster.” A senator needed only to inform the majority leader that he or she intended to filibuster a vote, which effectively halted the process unless the majority leader was able to round up 60 votes for cloture. 

The filibustering senator no longer had to stand up in the Senate and talk or debate for hours on end. You might call it the lazy senator’s filibuster. 

With that change, filibusters increased dramatically, from just a few per two-year congressional session in the 1960s, to 30 or 40 in the 1970s, to well into the 100s when Democrats took over the Senate in 2007. 

Now, Senate Majority Leader Mitch McConnell says he will hold a vote on Judge Neil Gorsuch’s Supreme Court nomination, and 41 Democrats say they will vote against cloture, whereupon McConnell has hinted he will invoke the “nuclear option” and change the Senate rules, similar to what then-Majority Leader Harry Reid did for all other judicial nominations in 2013

The bigger issue is whether there should be virtual filibusters. If one or more senators really oppose a particular nomination or bill, shouldn’t they be required to stand up and debate the issue until they run out of juice?

Repealing that 1975 change would still allow the Senate to be “the world’s greatest deliberative body” (hold your snickers, please), but at least senators, like Mr. Smith, would have to actually deliberate.


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