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Gisela Sin, expert on legislative procedures
Jimmy Stewart used the filibuster to heroic effect in the 1939 movie “Mr. Smith Goes to Washington,” talking himself to exhaustion to oppose a corrupt legislator. That’s not the way the filibuster has worked for decades, however, and in recent years it’s gotten little but scorn from Democrats now in the Senate majority, who have been threatening rule changes when the Senate convenes on Jan. 3. Political scientist Gisela Sin, an expert on legislative rules and procedures, is completing a book on rule changes in the U.S. House, and spoke about the history and future of the filibuster with News Bureau social sciences editor Craig Chamberlain.
The filibuster used to be a difficult maneuver, requiring someone to hold the Senate floor through continuous talking, and it was rarely used. Now just the threat of a filibuster does the trick. Why and when did a rule favoring the minority get so easy to employ?
Technically, a filibuster is any action that delays setting the time to vote on a piece of legislation. Before the 1960s, the filibuster was a true game of exhaustion. The minority was required to hold the floor by continuously speaking. This meant that the speaking senator had to literally stand at his desk and talk constantly without taking any breaks or even moving about in the Senate chamber.
At the same time, the majority had to ensure that they had enough senators on hand to form a quorum at a moment’s notice. If the majority could not form a quorum, the session would come to a halt and the Senate would adjourn. The consequence of an adjournment is that the minority would take a break and reinitiate the filibuster on the next legislative day. By having a quorum available, the majority thus forced the minority to continue speaking indefinitely. Whoever could last longer won the game.
As you can see, the filibuster was onerous and costly for both sides. In reality, senators not only were unable to engage in other Senate business, but also were prevented from campaigning and fundraising. This situation was exacerbated because the Senate’s workload had increased at the same time that its workweek had shortened to three days (Tuesday through Thursday). Keep in mind that in the mid-’60s, the increasing convenience of air travel permitted senators to easily return to their home districts.
The costs of waiting out a filibuster came to a head when civil rights legislation came to the forefront. Senators realized that a strong, determined and organized minority could paralyze the Senate and senators themselves for weeks.
For these reasons, the majority decided that instead of waiting out a filibuster, it was going to utilize a cloture rule originally adopted in 1917. The approval of a cloture rule ends the debate and terminates any filibuster. This is the rule that we are familiar with today because cloture requires 60 votes. Thus, the magic number for the passage of any contested legislation is 60, not 51.
There have been many threats and attempts since then to reform the filibuster, from Democrats and Republicans. Why has it never happened?
The reality is that senators have chosen to maintain the filibuster at times when they had the opportunity to change the rules. Basically, the filibuster provides individual senators with leverage and bargaining power. Even the threat to filibuster can get senators concessions from the opposition, the House and the president. It also increases the visibility of a particular senator or brings an issue to the public’s attention.
Is it fair to say the Senate has become truly dysfunctional under the current rules? Or is that just partisan talk from Democrats frustrated by Republican success in blocking their agenda?
In theory, a filibuster promotes bipartisanship and compromise. As mentioned earlier, both parties have used the filibuster to their advantage to extract concessions. However, the intensified polarization we have witnessed during the last 10 years, reflected in the skyrocketing use of the filibuster, means that the minority has the incentive to stick together with virtually no negative consequences. The reality is that senators can avoid a vote on a bill or nomination by simply sending a letter to the party leader indicating their intent to filibuster. The paralysis caused by filibusters is more damaging when the economic crises like the one we are experiencing demand urgent legislation.
What changes in the rules related to the filibuster would have the most effect on the movement of legislation and other business through the Senate?
There are different things that could be modified. The most oft-cited solution is to simply change the number of senators necessary to invoke cloture (that is, end the filibuster) from 60 to 51. Other alternatives focus on putting the burden of filibustering almost entirely on the minority. Examples of this include requiring the minority to gather 41 votes to keep the debate going, or requiring the majority to have only one senator physically present on the floor while the minority engages in a filibuster. By shifting the cost of filibustering to the minority, the hope is that opposition for the sake of opposition will be precluded.
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