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7 myths about the filibuster

If people know anything about the filibuster at all, they tend to know that it's where senators stand up and talk, and talk, and talk — sort of like Jimmy Stewart did in Mr. Smith Goes to Washington.

The problem is, that's simply not true.

Myth: the filibuster requires senators to talk

Say the word "filibuster" and people think of the climactic scene in Mr. Smith Goes to Washington, where Jimmy Stewart, playing an everyman senator, exposes the corruption of his colleagues by taking the Senate floor and talking, talking, talking until he collapses.

There's truth to that scene: filibusters used to feature a senator, or group of senators, taking the floor and talking.

The longest filibuster on record belongs to the late Strom Thurmond, who took the floor on August 28th, 1957, during the Senate's consideration of a civil rights bill. He began by reading the election statutes of all 48 states. Then he read the Declaration of Independence, the Bill of Rights, George Washington’s farewell address, and much else besides. He got one bathroom break, when Sen. Barry Goldwater took the floor on his behalf. He ate cold sirloin steak and pumpernickel bread his wife had packed and he sucked on throat lozenges. At times, his voice became too weak to hear. He finished 24 hours and 18 minutes later.

But those days are over. To watch a filibuster today is to be incredibly bored. Turn to C-SPAN 2 during a filibuster and you won’t see a heroic senator fighting off exhaustion to make his argument. You’ll see a blue screen explaining that the Senate is checking to see if they have a quorum.In a modern filibuster, there is nothing to hear, because no one is talking.

Gregory Koger, author of "Filibustering: A Political History of Obstruction in the House and Senate", calls the kind of filibuster Thurmond mounted an "attrition-based filibuster." That kind of filibuster is dead. Today's filibusters are completely different — they have nothing to do with talking, and everything to do with voting.

"The question isn’t, 'Can I find people who are intense enough on this issue to hold the floor,'" says Koger, "but, 'Can I find 41 votes to hold off cloture?'"

"In practical terms," Koger says, "filibusters usually take the form of refusing unanimous consent requests to limit debate, to reduce the number of amendments offered to bills, to limit the amendments to bills to germane topics, or even to agree to set times for when amendments are voted on."

Today's filibusters simply paralyze the Senate until the majority either finds 60 votes to proceed or gives up and moves on to another piece of business.

The filibuster is no longer about ensuring that minorities can make themselves heard on the floor of the Senate; rather, it's about forcing the majority to find 60 votes to pass anything. This is not Jimmy Stewart's Washington.

Myth: there are about as many filibusters now as in the past

The filibuster has been around, in some version or another, since the mid-1800s. But it's never been used as constantly as it is today.

filibuster cloture Javier Zarracina/Vox

"We have added a new veto point in American politics," Gregory Koger, the author of "Filibustering: A Political History of Obstruction in the House and Senate," says. "It used to be the House, the Senate, and the President, and now it’s the House, the President, the Senate majority, and the Senate minority."

It's difficult to count filibusters because there's no official process behind them. A senator doesn't need to file an official form announcing his intention to filibuster. He can just mention it offhand to the majority leader's office. Then the majority leader, knowing that bringing the bill to the floor will require facing a time-consuming delay, may choose to hold the bill. The result is a bill killed by a filibuster that there's no way to count.

The closest thing we have to a count of filibusters is a count of cloture votes to break filibusters; those actually do need to be officially filed, and the Senate keeps a public tally.

The story told by cloture motions is striking: between 1917 and 1970, senators filed fewer than 60 motions to break a filibuster. Between 2009 and 2015 alone, they filed more than 500.

Some political scientists argue that the idea of individual filibusters has become outdated; they say the Senate now operates under the filibuster's 60-vote requirement as a norm, and it's anything that requires a simple majority that's the exception. In other words, in the modern Senate, almost everything is filibustered.

Myth: the only reason to filibuster a bill is to kill it

Constant filibusters serve a purpose for the minority even if the majority has the 60 votes necessary to break them: they waste time.

The key here is that a single bill can be filibustered at many different points in the process.

"You can filibuster the motion to proceed to a bill," says Gregory Koger, author of Filibustering: A Political History of Obstruction in the House and Senate." "If there is a substitute amendment to a bill, that may require a separate cloture process. Then you can filibuster the bill itself. Then if you need to go to conference with the House, the motion to disagree, that’s a filibuster. The motion to move to conference, that’s a filibuster. Then when it comes back from conference, the report is subject to a filibuster."

What makes those multi-filibuster sequences more potent is that breaking each individual filibuster requires a lot of waiting around. After the majority files to hold a cloture vote to break a filibuster, they need to wait two days before they can actually take the vote. After the vote, they need to allow 30 hours of post-cloture debate.

Sometimes, the majority has the votes to break a filibuster but they can't afford to expend the time necessary to do it. The majority only has so many days in which the Senate is in session. Every day spent dealing with a filibuster is a day they can't spend legislating.

"I don’t want to romanticize the good old days," continues Koger, "as we always had partisan senators. But what’s different is there’s not just a strategy to block the majority party’s agenda but to simply run out the clock. The minority knows the majority only has x number of days to make their changes, and so the minority figures the longer they can make any one thing take, the less time the majority has for everything else."

Myth: all legislation can be filibustered

The extensive use of the filibuster can make governing difficult, so senators have responded by creating a rule that allows a certain kind budgetary legislation to bypass filibusters. That work-around, though, has ended up distorting the lawmaking process even further by encouraging senators to rewrite bills to fit the loophole.

Bills are exempt from the filibuster if they go through a process called budget reconciliation, which is designed to make it easier for the House and Senate to bring their budget proposals into alignment (hence "reconciliation").

But in recent decades, budget reconciliation has come to be used for much more than just budgets. The Bush tax cuts, welfare reform, drilling in the Alaska National Wildlife Reserve, and parts of Obamacare have all been pushed through reconciliation.

Reconciliation is an awkward process. It can only be used for bills that are plausibly budgetary in nature. As such, it forces legislators to design their laws around taxes and spending rather than regulation. To use the example of Obamacare, the tax credits that help people buy insurance could be crafted through reconciliation, but the regulations that force insurers to sell insurance to people with pre-existing conditions could not.

Reconciliation is, thus, a problematic way to design laws — it forces legislators to use policies that may not be the best way to achieve their goals. But as the filibuster has become more common, reconciliation has become more attractive to congressional majorities that have 51 votes in the Senate, but not 60.

Myth: the Founding Fathers created the filibuster

There isn't unanimity on the origins of the filibuster, but the most persuasive account comes from political scientists Sarah Binder and Steven Smith in "Politics or Principle?: Filibustering in the United States Senate".

What they found is that the filibuster was created by accident. When the Senate cleaned out its rulebook in the early 1800s, they removed the rule that stops a senator from talking — and it wasn't until much later than anyone realized they had accidentally created the filibuster.

Here's how it happened: in 1805, outgoing Vice President Aaron Burr stood before the Senate and delivered a farewell address that is perhaps the most famous speech in the history of chamber. "This house is a sanctuary," he said, "a citadel of law, of order, and of liberty; it is here — it is here in this exalted refuge; here, if anywhere, will be resistance made to the storms of political frenzy and the silent arts of corruption."

aaron burr hamilton

Aaron Burr created the filibuster and killed Alexander Hamilton in a duel. Busy guy. Wikimedia Commons.

But Burr's praise came with some homework: to become an exalted refuge of law, order and liberty, Burr argued, the Senate needed to streamline its rules. "Burr basically says that you are a great body," explains Binder. "You are conscientious and wise, you do not give in to the whims of passion. But your rules are a mess. And he goes through the rulebook pointing out duplicates and things that are unclear."

A particular focus of Burr’s was the "previous question motion," which allowed any senator to propose a vote that would cut off debate and move to "the main question." The rule was employed infrequently and inconsistently in the early Senate, and Burr advised its elimination. In 1806, the Senate took Burr’s advice and rewrote its rules, dropping the motion to move to the previous question. In doing, they dropped the only way to stop a senator from talking.

At the time, this didn't strike anyone as a problem because senators tended to stop talking of their own volition, just like people everywhere else. "It takes years before anyone figures out that the filibuster has just been created," says Binder.

Thirty-five years, to be exact. The first recorded filibuster occurred in 1841, at the beginning of the 27th Congress. The Whigs had just retaken the chamber from the Democrats, and they wanted to change the local printing firms that would be charged with producing the Congressional Globe, which recorded the doings of Congress. The Democrats filibustered the appointments. The fight raged for six days and almost turned physical. Senator Henry Clay, a Whig, called Democratic Senator William King a "false, untrue and cowardly" and challenged him to a duel. The two legislators were arrested before they could kill one another.

At the time, there wasn’t actually a name for the tactic that obstructionist senators were employing. The term "filibuster" — derived from the Dutch word for "pirate" — didn’t come into vogue until the 1850s.

Myth: the Senate never changes the filibuster

Initially, a filibuster couldn't be overcome. The majority's only hope was to wait for a procedural mistake and take advantage of it.

In 1908, for instance, Sen. Thomas Gore's filibuster against a currency bill was broken when he tried to tag in his colleague, Sen. William Stone. Gore, who was blind, didn't realize Stone had stepped out of the room. The majority did, and they used Gore's mistake to regain control of the floor and pass the bill.

But, eventually, the minority pushed further than the majority was prepared to tolerate. In 1917, a small group of senators filibustered President Woodrow Wilson's bill to arm American merchant ships against German submarines. Their filibuster lasted 23 days, and the Senate adjourned without passing Wilson's bill. In response, Wilson called Congress into special session and not only passed his bill, but persuaded the Senate to pass a new rule limiting the filibuster: now, using a process called cloture, a two-thirds majority of the Senate could shut down a filibuster.

Subsequent rule changes have weakened the filibuster further. In 1975, for instance, the Senate lowered the majority needed to end a filibuster from two-thirds to three-fifths. And in 2013, Senate Democrats exempted executive and non-Supreme Court judicial nominations from the filibuster.

A notable pattern around changes to the filibuster is they're a one-way ratchet: the filibuster will be weakened, typically over the protests of the minority, but when that minority retakes power, they do not restore the filibuster to its former strength.

Senate Republicans, for instance, protested the Democrats' 2013 rule change bitterly, but since retaking the chamber, they haven't moved to restore the filibuster. Indeed, two members of the Senate Republican leadership — Lamar Alexander and Mike Lee — have proposed adding Supreme Court nominations to the list of nominations exempt from the filibuster.

Myth: eliminating the filibuster altogether would require 67 votes

Though the filibuster began as an accident, it has since been codified into a rule: Rule XXII, to be exact. And Rule XXII states that "on a measure or motion to amend the Senate rules," the "necessary affirmative vote shall be two-thirds of the Senators present and voting." Assuming all 100 senators are around, that suggests changing the underlying filibuster rule requires 67 votes.

Except that it doesn't.

There are a slew of technical reasons the Senate can't create a rule making it harder for future Senates to change the rules. But most of them come down to the Constitution's guarantee that "Each House [of Congress] may determine the Rules of its Proceedings."

reid mcconnell

Harry Reid and Mitch McConnell have both, at different points, admitted you can change the filibuster with 51 votes. (Alex Wong/Getty Images)

Both sides, in practice, recognize that Rule XXII is unenforceable, and the Senate's rules can be changed with 51 votes. But both sides, when they don't like the proposed rule change, point to Rule XXII as evidence that the majority is bringing tyranny to the US Senate.

So in 2005, when Republicans wanted to change the filibuster using a simple majority, then-Senate whip Mitch McConnell said, "the current Senate majority intends to do what the majority in the Senate has often done--use its constitutional authority under article I, section 5, to reform Senate procedure by a simple majority vote." And Reid, who opposed the rule change, called it "breaking the rules to change the rules."

In 2013, when Democrats wanted to change the filibuster using a simple majority, McConnell said "what these Democrats have in mind is a fundamental change to the way the Senate operates." And Reid went ahead and did it anyway.

This speaks to a crucial fact about the filibuster: though a filibuster can only be broken with 60 votes, the rule that powers the filibuster can be changed, or even eliminated, with 51 votes. The filibuster is a minority protection that exists at the pleasure of the majority.

This is the fundamental tension of the filibuster: it gives the minority the power to obstruct the majority, but if the minority pushes that power too far, the majority can end the filibuster entirely.

Even the filibuster's fan agree that the rule only takes 51 votes to change. "In the final analysis, a majority working with a friendly vice president can do what they want to do, but they have to ignore the precedents of the Senate, ignore the rules of the Senate, ignore the parliamentarian, and rule by fiat," says Richard Arenberg, co-author of Defending the Filibuster: The Soul of the Senate.

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