Bring Back the Filibuster

“Bring back the filibuster.”  That may sound crazy.  Don’t we already have this ability in the senate and hasn’t it caused untold trouble?   Didn’t allowing senators to talk a bill to death once prevent much needed legislation?  The classic example, of course, was the civil rights bill that was stalled by segregationists for decades.

In order to avoid a repetition of that sad history, cloture was invented.  This mechanism enabled a supermajority of senators—today sixty—to vote to terminate perpetual debate.  Once they decided that further deliberations were futile, they could agree to shut them down.

Unfortunately, this reform backfired.  Instead of facilitating the legislative process, it has helped grind it to a halt.  Nowadays, bills go to the senate to die.  This past year, the House of Representatives passed hundreds of them only to see them languish in the other body.

The reason is that filibusters have become phony.  Few of them are of the Mr. Smith Goes to Washington variety.  Rather than stand for days until their strength wanes, minority members merely have to declare an intent to filibuster.  There are no more cots lining the hallways; no more raspy voices on the senate floor.

This has made it so convenient to filibuster that the Democrats have employed this devise to resist President Trump’s entire agenda.  Whenever they decide they don’t like a measure, they force the Republicans to muster more than a fifty-one-vote majority.  As a consequence, this has devolved into obstructionism on steroids.

Trump has therefore suggested the nuclear option as a remedy.  This would enable a bare majority to override a stubborn minority.  Mitch McConnell, the senate majority leader, has nevertheless been reluctant to heed this advice.  He fears that when the Democrats are again in the majority, they will use it to ram through any items they desire.

The senate has been described as the congressional “cooling saucer.”  Its function is supposedly to impede legislative intemperance.  Rather than hastily enact extreme measures that are temporarily popular, dispassionate heads are asked to scrutinize their implications.  This way, minorities are protected from oppression.

Although this is undoubtedly a worthy objective, it has morphed into a recipe for unrestricted stalemate.  Nothing gets done if a large enough minority decides to be intransigent.

So how can resurrecting the traditional filibuster help?  Wouldn’t this merely restore the bad old times?

Way back when, filibusters were actually rare.  They were reserved for important decisions—such as civil rights.  Because they were uncomfortable, they were used when the participants felt genuinely aggrieved.  Today they are so easy they are invoked for practically anything.

I, therefore, propose to make them more difficult.  Let us require dissenting senators to be physically present when they filibuster.  Keep the chamber open day and night and bring cots back to the hallways.  Don’t let the speakers go out for lunch or dinner.   Force them to eat sandwiches at their desks.

How long do you think filibusters would last under these conditions?  As importantly, how many would be held?  Wouldn’t this oblige legislators to be more thoughtful and perhaps more collegial?

As a bonus, genuine filibusters are circuses.  In this era of modern communications, they can be downright entertaining.  If they are frivolous, they might also be extremely embarrassing.  Legislators merely seeking to gum up the works would probably look ridiculous?

Naturally, cloture could still be invoked.  A super-majority could still be allowed to limit debate.  Moreover, those involved would be more inclined to return to regular order when their personal comfort was on the line.  In their desire to go home, wouldn’t they encourage one another to be more responsible?

I am serious about this idea.  Senate rules have been changed before.  When procedures were found unworkable, they have been modified.  Doesn’t the current legislative gridlock count as an emergency?  How often has the government been so paralyzed by partisan bickering?

Unless something is done, our democracy may fall apart.  It might cease being a practical form of governance.  A return of the traditional filibuster is a fairly simple fix.  While it has its limitations, these appear to be preferable to the never-ending soap opera into which Washington has descended.

Melvyn L. Fein, Ph.D.

Professor of Sociology

Kennesaw State University