Filibustering the Founding Fathers: The evolution to a political blackhole 

For political film nerds or Jimmy Steward fans, Mr. Smith Goes to Washington is a classic David versus Goliath film. Having uncovered that political boss Jim Taylor controls Senator Paine and a group of Congressmen, Jimmy Steward as Mr. Smith finds himself swiftly silenced by Taylor’s political machine. However before the machine can complete the job, Mr. Smith seizes the floor of the Senate and speaks for almost 24 hours straight to exposure its nefarious workings. In the end, the filibuster ensures that the forces of corruption cannot silence the lone, but righteous, voice of Mr. Smith.

This past Monday Neil Gorsuch took the two oaths of office required for an individual to become an associate Justice of the U.S. Supreme Court. This became possible the prior Thursday when the Senate’s Republican leadership changed the procedural rules, bringing an end to the Democrats’ filibuster. This rule change also means that a simple majority vote can end any future filibuster of a Supreme Court nominee.

So if the Democrats were filibustering Gorsuch’s nomination, why did we not have a Mr. Smith like figure, holding the Senate floor leading up to the moment the Republicans changed the rules? Where was the filibustering?

The simple answer is that no one was filibustering, or at least not in way we might envision it. In 1917, the Senate created the cloture rule which required a three-fifths vote of those present to establish a limitation on the time for debate (aka, ending the filibuster). (Cite) The Senate later lowered the number of votes for cloture to two-thirds vote of those present (today’s 60 votes when all Senators are present). Surviving Inside Congress, a common instructional book for new congressional staffers, describes the cloture rule as taking,

“The work and embarrassment out of the practice (of having to talk continuously), reducing filibuster to a parliamentary tactic and the de facto starting point for all legislation (the need to have 60 votes to vote on a bill). It enables a minority party with more than 41 seats to effectively control much of the Senate agenda without being perceived by the public as obstructionists.” (language in parentheses added) (p.71)

While the cloture rule certainly changed the filibuster, maybe the filibuster’s most consequential change came in 1970 when the Senate implement a practice that allowed them to bypass a filibustered bill and move on to other bills. A filibustered bill could now be postponed indefinitely. This final change essentially rendered the filibuster a political blackhole for legislation that our early Republic would not recognize today. Surviving Inside Congress states that, “The amount of legislation in the Senate subject to the filibuster went from 8 percent of the bills brought to the Senate floor in 1960 to an average of nearly 50 percent over the last decade.” (p.71) Congressman McClintock, in a speech on the filibuster, noted that only 58 filibusters occurred from 1917 to 1970. Since then however, 1,700 filibusters have occurred.(Cite)

This matters because it illustrates how today’s filibuster forces Congress to operate in a manner inconsistent with its design. The Founders envisioned the Senate as a moderating counterbalance to the passions of the House. They did not design it to require 60 votes to operate. Americans expect that a party with a majority in both houses of Congress can pass legislation.

The rules and practices of the Senate should enhance its ability to fulfill its purpose as a legislative body. The filibuster arguably does this when it gives the minority, even against a passionate windstorm of public support, a voice. This is the traditional filibuster. Today’s filibuster arguably fails to do this when a minority can indefinitely prevent the majority from holding a vote on a matter.

While the Senate removed the threat of the filibuster for Supreme Court nominees, Senators can still filibuster legislation. If the Senate truly values the filibuster as a tool to ensure all voices are heard during the legislative process, wisdom might dictate they reform the filibuster. If they do not reform the filibuster, another Gorsuch-like moment might necessitate its removal to enable the Senate to move forward. While the filibuster can give minority members an opportunity to ensure their voices are heard and slow down the process, it should not serve as a tool to indefinitely hold the majority at bay. So long as we leave the filibuster unchanged, it looks less and less like Mr. Smith and more and more like Senator Paine and the Taylor machine.

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